Notice2023-07675
Extension of Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance
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Published
April 12, 2023
Issuing agencies
Housing and Urban Development Department
Abstract
In accordance with the Build America, Buy America Act (BABA), this notice advises that HUD is proposing an extension to the previously issued public interest, general applicability waiver for an additional period of one year to the Buy America Domestic Content Procurement Preference ("Buy America Preference," or "BAP") as applied to Federal Financial Assistance ("FFA") provided to Tribes, Tribally Designated Housing Entities ("TDHE"s), and other Tribal Entities (hereinafter collectively "Tribal Recipients").
Full Text
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<title>Federal Register, Volume 88 Issue 70 (Wednesday, April 12, 2023)</title>
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[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Notices]
[Pages 22064-22067]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07675]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-02A]
Extension of Public Interest, General Applicability Waiver of
Build America, Buy America Provisions as Applied to Tribal Recipients
of HUD Federal Financial Assistance
AGENCY: Office of the Secretary, U.S. Department of Housing and Urban
Development (HUD).
ACTION: Notice.
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SUMMARY: In accordance with the Build America, Buy America Act (BABA),
this notice advises that HUD is proposing an extension to the
previously issued public interest, general applicability waiver for an
additional period of one year to the Buy America Domestic Content
Procurement Preference (``Buy America Preference,'' or ``BAP'') as
applied to Federal Financial Assistance (``FFA'') provided to Tribes,
Tribally Designated Housing Entities (``TDHE''s), and other Tribal
Entities (hereinafter collectively ``Tribal Recipients'').
DATES: HUD published this proposed waiver on its website on April 7,
2023. Comments on the proposed waiver set out in this document are due
on or before April 24, 2023 in consideration of Saturday being the
fifteen-day expiration of the comment period. HUD will consider
comments received and announce any subsequent changes to this waiver
through a subsequent Notice.
ADDRESSES: Interested persons are invited to submit comments on the
general applicability waiver. Copies of all comments submitted are
available for inspection and downloading at <a href="http://www.regulations.gov">www.regulations.gov</a>. To
receive consideration as public comments, comments must be submitted
through one of two methods, specified below. All submissions must refer
to the above docket number and title.
1. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
<a href="http://www.regulations.gov">www.regulations.gov</a> website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
2. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
No Facsimile Comments. Facsimile (FAX) comments will not be
accepted.
Public Inspection of Comments. All properly submitted comments and
communications submitted to HUD will be available for public inspection
and copying between 8:00 a.m. and 5:00 p.m. weekdays at the above
address. Due to security measures at the HUD Headquarters building, an
advance appointment to review the submissions must be scheduled by
calling the Regulations Division at (202) 708-3055 (this is not a toll-
free number). HUD welcomes and is prepared to receive
[[Page 22065]]
calls from individuals who are deaf or hard of hearing, as well as
individuals with speech and communication disabilities. To learn more
about how to make an accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
Copies of all submissions are available for inspection and downloading
at <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Faith Rogers, Department of Housing
and Urban Development, 451 Seventh Street SW, Room 10126, Washington,
DC 20410-5000, at (202) 402-7082 (this is not a toll-free number). HUD
welcomes and is prepared to receive calls from individuals who are deaf
or hard of hearing, as well as individuals with speech and
communication disabilities. To learn more about how to make an
accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>. HUD encourages submission
of questions about this document be sent to
<a href="/cdn-cgi/l/email-protection#c88abda1a4ac89a5adbaa1aba98abdb189a5adbaa1aba988a0bdace6afa7be"><span class="__cf_email__" data-cfemail="cb89bea2a7af8aa6aeb9a2a8aa89beb28aa6aeb9a2a8aa8ba3beafe5aca4bd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Build America, Buy America
The Build America, Buy America Act (``BABA'' or ``the Act'') was
enacted on November 15, 2021, as part of the Infrastructure Investment
and Jobs Act (``IIJA'') (Pub. L. 117-58). The Act establishes a
domestic content procurement preference, the BAP, for Federal
infrastructure programs. Section 70914(a) of the Act establishes that
no later than 180 days after the date of enactment, HUD must ensure
that none of the funds made available for infrastructure projects may
be obligated by the Department unless it has taken steps to ensure that
the iron, steel, manufactured products, and construction materials used
in a project are produced in the United States. In section 70912, the
Act further defines a project to include ``the construction,
alteration, maintenance, or repair of infrastructure in the United
States'' and includes within the definition of infrastructure those
items traditionally included along with buildings and real property.
Thus, starting May 14, 2022, new awards of HUD FFA, and any of those
funds newly obligated by HUD then obligated by the grantee for
infrastructure projects, are covered under BABA provisions of the Act,
41 U.S.C. 8301 note, unless covered by a waiver.
II. HUD's Progress in Implementation of the Act Generally
Since the enactment of the Act, HUD has worked diligently to
develop a plan to fully implement the BAP across its FFA programs
awarding funds to non-Tribal Recipients. HUD understands that advancing
Made in America objectives is a continuous effort and believes setting
forth a transparent schedule of future implementation in those programs
provides industry partners and non-Tribal Recipients with the time and
notice necessary to efficiently and effectively implement the BAP. HUD
recently announced plans to move forward with the implementation of the
new BAP requirements in connection with its award of FFA to non-Tribal
Recipients in a manner designed to maximize coordination and
collaboration to support long-term investments in domestic production.
HUD continues its efforts to implement the Act in those programs
consistent with the guidance and requirements of the Made in America
Office of the Office of Management and Budget, including guidance
concerning appropriate compliance with the BAP.
In order to ensure orderly implementation of the BAP across HUD's
FFA programs awarding funds to non-Tribal Recipients, HUD has provided
public interest, general applicability waivers in order to implement
the BAP in phases in connection with the application of the BAP in such
programs and announced a corresponding implementation plan for all non-
Tribal Recipients. As part of those efforts, HUD has published two
general applicability, public interest waivers covering Exigent
Circumstances and De Minimis and Small Grants, which can be found at
<a href="https://www.hud.gov/program_offices/general_counsel/BABA">https://www.hud.gov/program_offices/general_counsel/BABA</a>.
Additionally, as noted above, HUD previously published a one-year
general applicability, public interest waiver of the BAP in connection
with FFA provided to Tribal Recipients \1\ effective May 14, 2022 to
provide the agency with sufficient time to complete the Tribal
consultation process regarding implementation of the BAP in connection
with infrastructure projects. During the pendency of such waiver, HUD
actively participated in governmentwide consultation efforts with
respect to the applicability of the provisions of the Build America,
Buy America Act to Tribal Recipients, generally. Specifically, on
September 21, 2022, eight agencies (U.S. Department of the Interior,
U.S. Department of Agriculture, U.S. Department of Housing and Urban
Development, U.S. Department of Homeland Security, U.S. Department of
Energy, U.S. Department of Transportation, U.S. Department of Commerce,
and U.S. Small Business Administration) participated in a joint
consultation hosted by the White House Council on Native American
Affairs to consult with Tribal Nations on discretionary Buy America
Preference provisions and the waiver categories characterized in the
OMB memorandum. Based on the consultations held, Tribes were requested
to provide written comments and feedback by October 20, 2022 for
Federal agency consideration. The resulting comments were received by
the White House Council and distributed to agencies on October 25,
2022.
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\1\ For purposes of this waiver, the term ``Tribal Recipients''
includes all recipients of grants or loan guarantees administered by
HUD's Office of Native American Programs. This includes Indian
tribes and TDHEs receiving grants and loan guarantee assistance
under the Native American Housing Assistance and Self-Determination
Act's (NAHASDA's) Indian Housing Block Grant Program and Title VI
Loan Guarantee Program, and Indian tribes and Tribal Organizations
receiving Indian Community Development Block Grant funds under the
Housing and Community Development Act of 1974. It also includes
Federal Financial Assistance provided by HUD to the Department of
Hawaiian Home Lands (``DHHL'') which receives annual grant funding
under the Native Hawaiian Housing Block Grant (``NHHBG'') program.
HUD will seek feedback from DHHL on BAP implementation and has an
interest in ensuring that the NHHBG program aligns with the broader
Indian Housing Block Grant program given the similarities amongst
the two programs and the fact that they are both authorized under
``NAHASDA''.
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HUD is now moving forward with consultation on specific plans for
implementation of the BAP in HUD's FFA provided to Tribal Recipients,
in light of the comments received from the Tribal leaders and the
progress the agency has made implementing the BAP in other FFA
programs. In order to appropriately engage in consultation as described
in HUD's Tribal Government-to-Government Consultation Policy,\2\
consistent with President Biden's ``Tribal Consultation and
Strengthening Nation-to-Nation Relationships'' Memorandum regarding the
appropriate application of BAP to such entities, HUD needs an
additional period of time in which to further consult on the more
specific application of the BAP to HUD's Tribal Recipients.
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\2\ <a href="https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp">https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp</a>. See also 81 FR 40893.
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[[Page 22066]]
III. Waivers
Under Section 70914(b), HUD and other Federal agencies have
authority to waive the application of a domestic content procurement
preference when (1) application of the preference would be contrary to
the public interest, (2) the materials and products subject to the
preference are not produced in the United States at a sufficient and
reasonably available quantity or satisfactory quality, or (3) inclusion
of domestically produced materials and products would increase the cost
of the overall project by more than 25 percent. Section 70914(c)
provides that a waiver under section 70914(b) must be published by the
agency with a detailed written explanation for the proposed
determination and provide a public comment period of not less than 15
days. Pursuant to section 70914(d)(2), when seeking to extend a waiver
of general applicability, HUD is required to provide for a public
comment period of not less than 30 days on the continued need such
waiver.
On May 14, 2022, HUD published a General Applicability Waiver of
Build America, Buy America Provisions as Applied to Tribal Recipients
of HUD Federal Financial Assistance for a period of one year. This
current waiver expires on May 14, 2023. During this time period, HUD
participated in an interagency Tribal Consultation on the
implementation of BABA and participated in an interagency workgroup to
address issues raised during the joint consultation.
IV. Tribal Infrastructure and HUD Programs
Many Tribal communities still lack basic infrastructure such as
roads, running water, and indoor plumbing. The need for safe, decent,
and sanitary housing is immense. In its 2017 Housing Needs Study, HUD
concluded that 68,000 new units were needed in Indian Country to
replace inadequate units and eliminate severe overcrowding. That same
study found that the lack of infrastructure was the number one barrier
to housing development in many Tribal communities. Not only is
infrastructure in many Tribal communities in dire need of repair and
modernization, but Tribes also often find it difficult to locate
available supplies, suppliers, and construction labor necessary to
develop that infrastructure.
The COVID-19 pandemic compounded the infrastructure challenges
faced by many Native American communities. Recent feedback from Tribal
Recipients has disclosed the numerous challenges they experienced while
implementing the various HUD COVID-19 relief programs. A lack of
supplies and a lack of available contractors working in Tribal
communities were identified as the primary challenges faced by Tribal
Recipients. Tribal Recipients indicated to HUD that procuring supplies
and materials can be very difficult at times, and this made HUD-funded
infrastructure projects challenging to implement to completion and at
budgeted cost. Even when supplies were available for purchase,
increased costs for steel, lumber, and transportation combined with
lack of developers to bid on projects led to a backlog of construction
projects and severely impacted Tribes' ability to complete important
infrastructure projects and construct new housing.
Unfortunately, many Tribes are more disconnected from American
supply chains than the average HUD grantee due to their remoteness. For
example, some Alaska Native villages are not on the road system, must
develop infrastructure and housing during an extremely short
construction season, and must grapple with unique transportation
limitations, including having to ship basic construction materials only
twice per year by barge at extremely elevated costs. These Tribes often
report to HUD that it can be a major challenge to secure space on a
barge for construction materials. At times, even when space is secured,
any unexpected setbacks faced, such as loss of cargo, materials damaged
through shipping, or miscalculation of the appropriate amount or
quality of materials needed, can result in infrastructure and housing
projects being delayed an entire construction season. These Tribes end
up waiting for the next barge in six months and face cost overruns.
Annually, HUD provides over $1 billion in FFA to almost 600
sovereign Tribal Nations. Programs like the Indian Housing Block Grant
(``IHBG'') and the Indian Community Development Block Grant (``ICDBG'')
program are critical programs that allow the Federal Government to
carry out its trust responsibilities and support affordable housing and
infrastructure development in Tribal communities. Under these programs,
HUD provides block grant funding to Tribal Recipients to help address
these housing and infrastructure needs--particularly for the benefit of
low- and moderate-income families. HUD anticipates that the BAP will
apply to some projects funded under these programs. Accordingly, HUD
must ensure that Tribal Recipients are able to effectively implement
the BAP in a manner that ensures that the purposes of BABA are carried
out, while at the same time preventing additional undue barriers to the
development of Tribal infrastructure, which has suffered from decades
of underinvestment.
HUD has determined that the prior one-year waiver period was
insufficient to fully consult and assess the impacts that BAP will have
on HUD's Tribal Recipients. While the interagency consultation webinar
provided HUD with some additional insight into how the BAP will impact
Tribal communities generally, HUD is particularly interested in seeking
more tailored Tribal feedback on the impact of the BAP on
infrastructure projects that are funded under HUD's various Tribal
programs. Additionally, since the interagency webinar was held in 2022,
HUD has determined to implement the BAP in a phased manner across its
non-Tribal programs. With the benefit of this recent determination, HUD
needs additional time to seek Tribal feedback on whether and when HUD
should take a similar phased approach with respect to the
implementation of the BAP under its Tribal programs. HUD will also
assess the unique and diverse conditions of Tribal communities across
Indian Country and determine how the BAP should be applied after taking
those conditions into account. Additional time is needed to consult
with Tribal Leaders.
V. Public Interest in a General Applicability Waiver of Buy America
Provisions for Tribes, TDHEs, and Other Tribal Entities (``Tribal
Recipients'')
In this notice, HUD is seeking comment on a limited, one-year
extension of HUD's existing public interest, general applicability
waiver of the BAP in connection with HUD's FFA to Tribal Recipients to
provide the Department with sufficient time to complete consultation
consistent with HUD's Tribal Government-to-Government Consultation
Policy. HUD's `Tribal Government-to-Government Consultation Policy' was
adopted in compliance with Executive Order 13175, ``Consultation with
Indian Tribal Governments,'' and outlines the internal procedures and
principles HUD must follow when communicating and coordinating on HUD
programs and activities that affect Native American Tribes. HUD's
Tribal Consultation policy recognizes the right of Tribes to self-
government and facilitates Tribal participation and input in HUD's
implementation of programs and FFA directed to Tribal communities.
[[Page 22067]]
In fiscal year 2023, Tribal Entities received over $1 billion
through the Department's programs. Infrastructure is an eligible
activity under some of these programs and could be subject to the BAP.
HUD believes that full compliance with the BAP will create ongoing
demand for domestically produced products and deepen domestic supply
chains. Because the potential application of BAP mandated by the Act
would be new to all HUD Tribal FFA recipients, HUD has not had the
benefit of engaging in fulsome consultation consistent with its Tribal
Consultation policy concerning the application of the BAP to Tribal
Recipients--particularly with respect to how the BAP should apply to
HUD's various Tribal programs, how the BAP should be phased in to allow
for successful implementation, and how compliance will be verified.
While HUD participated in a general consultation session as part of a
governmentwide interagency process regarding the general application of
the BAP to Tribal Recipients, because of the significance and
potentially wide scope of new requirements necessary to demonstrate
compliance with BAP or to seek waivers of BAP for specific products or
projects, it is imperative that HUD further engage in Tribal
consultation on the specific intended application of the BAP to FFA
awarded to HUD's Tribal Recipients.
HUD now has the benefit of having fully considered an appropriate
method of phased implementation across its other FFA programs and has
begun the methodical implementation of the BAP in those other FFA
programs. With the benefit of this experience and the benefit of the
governmentwide consultation efforts, HUD will conduct a more tailored
consultation process with the Tribal Recipients of HUD FFA specifically
focused on the BAP application to HUD's various Tribal housing and
community development programs. HUD believes that the Tribal
consultation process is necessary for the successful implementation of
the BAP across its covered FFA programs funding infrastructure
projects, that a full and meaningful Tribal consultation process will
allow HUD to determine the potential impact of the Act's Buy America
Preference on Tribal governments and communities and will inform a
tailored implementation for Tribal Recipients that recognizes the
sovereignty and unique status of Tribal governments. Accordingly, HUD
has determined that it would be contrary to the public's interest to
apply the BAP to FFA awards to Tribal Recipients prior to completion of
further Tribal consultation.
VI. Planned Tribal Consultation
Similar to other HUD programs, HUD will seek Tribal feedback
consistent with HUD's Tribal Government-to-Government Consultation
Policy and Executive Order 13175 on when and how to phase in the BAP
for FFA provided to Tribal Recipients. HUD will also solicit Tribal
feedback on other related issues, including how to effectively
implement the BAP for extremely remote communities, such as remote
Native Alaskan Villages, that are more disconnected from traditional
supply chains, have an extremely short construction seasons, are
located off the road system, and are reliant on barges to ship
construction materials. HUD acknowledges that rural Tribal communities
and Alaska Native Villages have expressed major concerns about
availability of American-made products and continue to struggle with
challenges because of their proximity away from main supply sources.
Tribes are already facing major challenges with accessing construction
materials, and major cost overruns due to a lack of available
materials--particularly in remote Tribal communities.
During the one-year waiver period, HUD has identified various
scheduled national and regional convenings and conferences where HUD
intends to host in-person Tribal consultation sessions with Tribal
leaders to discuss the BAP. Additionally, HUD will seek to engage with
Tribes and Tribal housing practitioners at the various quarterly and
semi-annual regional housing association meetings that are planned
during the one-year waiver period. These association meetings are
routinely attended by HUD Tribal Recipients who will be charged with
complying with the BAP once it goes into effect. Consistent with past
practice, HUD also intends to conduct some Tribal consultation
virtually. HUD will do so by soliciting written feedback from Tribal
leaders specifically addressing the impact of the BAP on HUD's Tribal
programs.
After receiving Tribal feedback, HUD will seek to implement the BAP
in a manner that advances the Made in America objectives while also
ensuring that the BAP implementation does not serve as a major barrier
to Tribal communities' efforts to develop critical infrastructure. Many
Tribal communities lack running water, sewer, roads, and basic
infrastructure. HUD will implement the BAP in a thoughtful manner that
ensures that Tribal Recipients can effectively implement the BAP
without substantial negative impacts on planned and ongoing critical
infrastructure projects. HUD will also seek to provide additional
technical assistance resources to ensure that Tribal Recipients can
build capacity and be in a better position to comply with the BAP.
Based on prior practice, HUD is proposing a one-year extension of its
general applicability, public interest waiver of the application of the
BAP in connection with FFA awards to Tribal Recipients that are
obligated by HUD during the pendency of the waiver.
VII. Assessment of Cost Advantage of a Foreign-Sourced Product
Under OMB Memorandum M-22-11, ``Memorandum for Heads of Executive
Departments and Agencies,'' published on April 18, 2022, agencies are
expected to assess ``whether a significant portion of any cost
advantage of a foreign-sourced product is the result of the use of
dumped steel, iron, or manufactured products or the use of injuriously
subsidized steel, iron, or manufactured products'' as appropriate
before granting a public interest waiver. HUD's analysis has concluded
that this assessment is not applicable to this waiver, as this waiver
is not based in the cost of foreign-sourced products.
VIII. Limited Duration of the Waiver
HUD remains committed to the successful implementation of the
important BAP across its programs providing covered FFA for
infrastructure projects, while recognizing the unique government-to-
government relationship it has with Tribal Recipients receiving HUD FFA
for infrastructure projects. HUD is committed to engaging in a timely
consultation process as noted above to further this goal.
IX. Solicitation of Comments
As required under section 70914 of the Act, HUD is soliciting
comment from the public on the waiver announced in this Notice for a
period of 30 days. If issued, this waiver would be applicable to HUD
FFA that HUD obligates on or after the effective date of the final
waiver and throughout the applicable waiver periods.
Marcia L. Fudge,
Secretary.
[FR Doc. 2023-07675 Filed 4-11-23; 8:45 am]
BILLING CODE 4210-67-P
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