Notice2024-14837
Extension of Public Interest, General Applicability Tribal Consultation Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 8, 2024
Effective
September 30, 2024
Issuing agencies
Housing and Urban Development Department
Abstract
In accordance with the Build America, Buy America Act (BABA or the Act), this Final Notice advises that HUD is extending the previously issued public interest, general applicability Tribal Consultation waiver of the Build America, Buy America Act (BABA) Domestic Content Procurement Preference (the Buy America Preference or the BAP) as applied to Federal Financial Assistance (FFA) provided to Tribes, Tribally Designated Housing Entities (TDHEs), and other Tribal Entities (hereinafter collectively, Tribal Recipients) until September 30, 2024. This limited waiver extension is critical in keeping with the Federal Government's commitment to consult with Tribes and build Tribal capacity as established through Executive order before applying the Buy America preference to programs that affect Tribal communities.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 130 (Monday, July 8, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 130 (Monday, July 8, 2024)]
[Notices]
[Pages 55964-55966]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14837]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-02D]
Extension of Public Interest, General Applicability Tribal
Consultation 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 or the Department).
ACTION: Final notice.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Build America, Buy America Act (BABA or
the Act), this Final Notice advises that HUD is extending the
previously issued public interest, general applicability Tribal
Consultation waiver of the Build America, Buy America Act (BABA)
Domestic Content Procurement Preference (the Buy America Preference or
the BAP) as applied to Federal Financial Assistance (FFA) provided to
Tribes, Tribally Designated Housing Entities (TDHEs), and other Tribal
Entities (hereinafter collectively, Tribal Recipients) until September
30, 2024. This limited waiver extension is critical in keeping with the
Federal Government's commitment to consult with Tribes and build Tribal
capacity as established through Executive order before applying the Buy
America preference to programs that affect Tribal communities.
DATES: HUD published this Final Notice of a limited waiver extension on
its website on July 1, 2024. The limited waiver extension applies to
awards obligated or incrementally funded on or after the effective date
of the Final Notice and until September 30, 2024. In the case of awards
obligated prior to the effective date of the Final Notice, the limited
waiver applies to expenditures on or after the effective date of this
Final Notice.
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/telecommunicationsrelay-service-trs">https://www.fcc.gov/consumers/guides/telecommunicationsrelay-service-trs</a>. HUD encourages submission
of questions about this document be sent to
<a href="/cdn-cgi/l/email-protection#d290a7bbbeb693bfb7a0bbb1b390a7ab93bfb7a0bbb1b392baa7b6fcb5bda4"><span class="__cf_email__" data-cfemail="1b596e72777f5a767e6972787a596e625a767e6972787a5b736e7f357c746d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Build America, Buy America
The Build America, Buy America 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
has announced detailed plans for 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.
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.
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 phased implementation waivers
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/build_america_buy_america/waiver">https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver</a>.
Additionally, HUD previously published two general applicability,
public interest waivers of the BAP in connection with FFA provided to
Tribal
[[Page 55965]]
Recipients \1\ through May 22, 2024, to provide the agency with
sufficient time to complete the Tribal consultation process regarding
implementation of the BAP in connection with infrastructure projects,
both generally and specifically in connection with FFA received from
HUD. This waiver extension is critical in keeping with the Federal
Government's commitment to follow consultation policies established
through Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, before applying the Buy America Preference
to programs that affect Tribes.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
IV. Tribal Infrastructure and HUD Programs
Many Tribal communities are without basic infrastructure such as
roads, running water, and indoor plumbing. Critical infrastructure in
many Tribal communities is severely deficient and in need of repair and
modernization. Addressing infrastructure needs is especially difficult
for Tribes due to challenges faced with locating available supplies,
suppliers, and construction labor necessary for development.
Some Alaska Native villages are located off the road system, have
short construction seasons because of extreme weather, and must grapple
with unique transportation limitations, including having to ship basic
construction materials twice per year by barge or air freight 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. A project can be delayed
for six months or longer until the next barge or carrier can arrive,
which results in significant cost overruns.
Annually, HUD provides over $1 billion in FFA to 574 Federally
recognized Tribal Nations. The Indian Housing Block Grant and the
Indian Community Development Block Grant programs are critical funding
sources 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 grants to Tribal Recipients to address 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 and transition to
compliance.
V. HUD's Consultation Policy
HUD's ``Tribal Government-to-Government Consultation Policy,''
adopted in compliance with Executive Order 13175, ``Consultation with
Indian Tribal Governments,'' 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.
Consistent with its Tribal Government-to-Government Consultation
Policy, HUD has actively participated in consultation efforts with
respect to the applicability of the BAP to Tribal Recipients.
Initially, on September 21, 2022, eight agencies participated in a
joint consultation hosted by the White House Council on Native American
Affairs to consult with Tribal Nations on discretionary BAP provisions
and the waiver categories characterized in OMB initial implementation
guidance M-22-11. Tribes were initially 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.
Since that time, and in light of the comments received from the
Tribal leaders and the progress the Department has made implementing
the BAP in other FFA programs, HUD engaged in consultation with respect
to specific plans for implementation of the BAP in HUD's FFA provided
to Tribal Recipients consistent with HUD's Tribal Government-to-
Government Consultation Policy \2\ and with President Biden's ``Tribal
Consultation and Strengthening Nation-to-Nation Relationships''
Memorandum \3\.
---------------------------------------------------------------------------
\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.
\3\ <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/</a>.
---------------------------------------------------------------------------
During the past year, HUD held a series of Tribal consultation
sessions across the country to obtain feedback from Tribes on the
likely impact of employing the BAP in HUD's Tribal programs. As a
result, HUD received over 100 comments from Tribes throughout the
nation. Consultation sessions were held at the following events:
<bullet> National Congress of American Indians Mid-Year session,
Prior Lake, Minnesota, June 7, 2023;
<bullet> Southern Plains Indian Housing Association session,
Durant, Oklahoma, July 11, 2023;
<bullet> Nevada/California Indian Housing Association, Sparks,
Nevada, August 13-16, 2023;
<bullet> United Native American Housing Association conference,
Salt Lake City, Utah, August 22-24, 2023;
<bullet> Northwest Indian Housing Association, Coeur d'Alene,
Idaho, September 12-14, 2023;
<bullet> Affiliated Tribes of Northwest Indians Annual Meeting,
Chehalis, Washington, September 18-21, 2023;
<bullet> HUD ONAP National Tribal Housing Summit, Saint Paul,
Minnesota, October 31-November 2, 2023;
<bullet> National Congress of American Indians Conference, New
Orleans, Louisiana, November 12-17, 2023;
<bullet> Alaska BIA Provider's Conference, Anchorage, AK, November
29, 2023.
In addition to conducting in-person Tribal consultation sessions,
HUD invited Tribes to submit written comments to HUD. HUD received
written comments from HUD's Tribal Intergovernmental Advisory Committee
and other Tribal grantees. HUD continues to process and evaluate the
comments received throughout this process.
VI. Public Interest in an Extension of HUD's General Applicability
Waiver of the BAP for FFA Provided to Tribal Recipients
This limited waiver extension permits the use of non-domestic iron,
steel, manufactured products, and construction materials in such
projects that may otherwise be prohibited under section 70914(a) of
BABA for HUD
[[Page 55966]]
Federal financial assistance agreements with Tribal Recipients. This
limited waiver extension applies to awards obligated or incrementally
funded on or after the effective date of this Final Notice and until
September 30, 2024. In the case of awards obligated prior to the
effective date of this Final Notice, the limited waiver applies to
expenditures on or after the effective date of this Final Notice. As
such, HUD is issuing a limited waiver extension to allow the Department
sufficient time to both complete its own evaluation of comments
received through the consultations described above consistent with
HUD's Tribal Government-to-Government Consultation Policy and provide
clear guidance and technical assistance to recipients so that they
understand expectations for the conclusion of the limited waiver
extension, as HUD transitions to full BABA compliance in a timely
manner. This approach is consistent with the policy of Executive Order
13175.
During the limited waiver extension period, HUD intends to complete
its analysis of comments received during its own Tribal consultation
sessions with Tribes concerning the application of the BAP and fully
brief the Office of Management and Budget on all Tribal feedback
received. After considering all Tribal feedback, HUD intends to publish
additional programmatic guidance. The guidance will provide Tribal
Recipients with additional information including how the BAP will apply
to HUD's various Tribal programs, ways that Tribal Recipients can
comply with the BAP, and the process that Tribal Recipients must follow
to request BAP waivers. HUD will provide training resources to ensure
that Tribal Recipients are in a good position to implement the BAP
under HUD's Tribal programs. HUD will also use this limited extension
period 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.
HUD intends to implement the BAP in a manner that advances the Made
in America objectives while also ensuring that Tribal Sovereignty and
Self-Determinations are respected and the treaty and trust obligations
of the United States are honored. At the conclusion of this limited
waiver extension, Tribal recipients will be expected to transition to
full compliance with BABA requirements.
VII. Assessment of Cost Advantage of a Foreign-Sourced Product
Under OMB Memorandum M-24-02, ``Implementation Guidance on
Application of the Buy America Preference in Federal Financial
Assistance Programs for Infrastructure,'' published on October 25,
2023, 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 and incompliance with applicable law, 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 on 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 public
infrastructure projects, while recognizing the unique government-to-
government relationship it has with Tribal Recipients receiving HUD FFA
for public infrastructure projects and the new directives set forth in
Executive Order 14112. HUD is committed to engaging its Federal agency
partners in a timely manner as noted above to further this goal.
IX. Solicitation of Comments
As required under section 70914 of the Act, HUD solicited comments
from the public on the proposed limited waiver extension for a period
of 30 days. Eight comments were submitted through the Federal Register
during this comment period. HUD thoroughly reviewed and considered them
along with the six previously submitted public comments and additional
written comments in support of a waiver extension that Tribal leaders
and stakeholders submitted during the current comment period. All eight
comments supported a BABA waiver for Tribal Recipients as long as
possible and seven, including a resolution submitted by the National
Congress of American Indians, urged a permanent blanket waiver for all
HUD-funded awards for Tribal Recipients. Of the six previously
submitted public comments, two are supportive of an extension, one is
not related to the Tribal waiver extension, but rather construction
materials including cast lampposts and related LED fixtures, and three
opposed an extension of the waiver. Although previous comments opposed
a waiver extension, HUD appreciates all the submitted public comments.
As such, HUD believes the limited waiver extension of the application
of the BAP as set forth in this Final Notice is appropriate and in the
public interest considering the importance of HUD's Tribal consultation
and subsequent development of implementation guidance. HUD will
continue to monitor the implementation of the BAP across its programs
to ensure the most robust application possible due to the important
public interests discussed above.
Adrianne R. Todman,
Acting Secretary.
[FR Doc. 2024-14837 Filed 7-5-24; 8:45 am]
BILLING CODE 4210-67-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 8, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.