Extension of Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance, 22064-22067 [2023-07675]
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22064
Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Notices
average of 1 hour in the first round of
data collection. Semi-structured
interviews with grantee and
subrecipient staff are expected to last an
average of 1 hour in the second round
of data collection. Focus groups with
10 minutes. Informed consent for the
program participants to participate in
the study is expected to take 5 minutes.
Total Estimated Burdens: 477.75
hours.
program participants are expected to
last 90 minutes. 1:1 online interviews
with program participants are expected
to last 45 minutes. Informed consent for
the program participants to provide
contact information is expected to take
EXHIBIT A—ANNUALIZED BURDEN TABLE
Number of
respondents
Information collection
Round 1 Interview with Grantee/Subrecipient Staff .............................................
Round 2 Interview with Grantee/Subrecipient Staff .............................................
Focus Group with Program Participants .......
Interview with Program Participants .............
Informed Consent to Provide Contact Information ........................................................
Informed Consent to Participate in the Study
Total .......................................................
Responses
per annum
Burden hour
per response
Cost
1
1
126
$77.42
$9,754.92
126
105
42
1
1
1
1
1
1
1
1.5
0.75
126
157.5
31.5
77.42
41.86
41.86
9,754.92
6,592.95
1,318.59
147
147
1
1
1
1
0.17
0.08
24.5
12.25
41.86
41.86
1,025.57
512.79
........................
........................
........................
........................
477.75
........................
28,959.74
C. Authority
Section 3507 of the Paperwork
Reduction Act of 1995, 44 U.S.C. 3507.
Todd Richardson,
General Deputy Assistant Secretary for Policy
Development and Research.
[FR Doc. 2023–07701 Filed 4–11–23; 8:45 am]
BILLING CODE 4210–67–P
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
Office of the Secretary, U.S.
Department of Housing and Urban
Development (HUD).
ACTION: Notice.
AGENCY:
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.
SUMMARY:
Interested persons are
invited to submit comments on the
general applicability waiver. Copies of
all comments submitted are available for
inspection and downloading at
www.regulations.gov. To receive
ADDRESSES:
19:25 Apr 11, 2023
Hourly cost
per response
1
This notice is soliciting comments
from members of the public and affected
parties concerning the collection of
information described in Section A on
the following:
(1) Whether the proposed collection
of information is necessary for the
proper performance of the functions of
the agency, including whether the
information will have practical utility;
(2) The accuracy of the agency’s
estimate of the burden of the proposed
collection of information;
(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
(4) Ways to minimize the burden of
the collection of information on those
who are to respond; including through
the use of appropriate automated
collection techniques or other forms of
information technology, e.g., permitting
electronic submission of responses.
HUD encourages interested parties to
submit comments in response to these
questions.
VerDate Sep<11>2014
Annual burden
hours
126
B. Solicitation of Public Comment
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Frequency of
response
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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
www.regulations.gov. 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
www.regulations.gov 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
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Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Notices
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 https://www.fcc.gov/
consumers/guides/telecommunicationsrelay-service-trs. Copies of all
submissions are available for inspection
and downloading at
www.regulations.gov.
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 https://www.fcc.gov/
consumers/guides/telecommunicationsrelay-service-trs. HUD encourages
submission of questions about this
document be sent to BuildAmerica
BuyAmerica@hud.gov.
SUPPLEMENTARY INFORMATION:
ddrumheller on DSK120RN23PROD with NOTICES1
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.
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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 nonTribal 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 https://
www.hud.gov/program_offices/general_
counsel/BABA.
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
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
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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.
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 Governmentto-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.
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’’.
2 https://www.hud.gov/program_offices/public_
indian_housing/ih/regs/govtogov_tcp. See also 81
FR 40893.
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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.
ddrumheller on DSK120RN23PROD with NOTICES1
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
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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
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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-toGovernment 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.
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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
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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-toGovernment 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
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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 foreignsourced 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-togovernment 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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]]>Agencies
[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Notices]
[Pages 22064-22067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07675]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 www.regulations.gov. 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
www.regulations.gov. 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
www.regulations.gov 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 https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
Copies of all submissions are available for inspection and downloading
at www.regulations.gov.
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 https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. HUD encourages submission
of questions about this document be sent to
[email protected].
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
https://www.hud.gov/program_offices/general_counsel/BABA.
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\ https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp. 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
