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, 43424-43427 [2024-10860]
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43424
Federal Register / Vol. 89, No. 97 / Friday, May 17, 2024 / Notices
information, before submitting the
collection to OMB for approval. To
comply with this requirement, HUD is
publishing notice of the proposed
collection of information set forth in
this document.
Whether seeking a loan, Social
Security benefits, veterans’ benefits, or
other services provided by the Federal
Government, individuals and businesses
expect Government customer services to
be efficient and intuitive, just like
services from leading private-sector
organizations. Yet the 2016 American
Consumer Satisfaction Index and the
2017 Forrester Federal Customer
Experience Index show that, on average,
Government services lag nine
percentage points behind the private
sector.
A modern, streamlined and
responsive customer experience means:
Raising government-wide customer
experience to the average of the private
sector service industry; developing
indicators for high-impact Federal
programs to monitor progress towards
excellent customer experience and
mature digital services; and providing
the structure (including increasing
transparency) and resources to ensure
customer experience is a focal point for
agency leadership. To support this,
OMB Circular A–11 Section 280
established government-wide standards
for mature customer experience
organizations in government and
measurement. To enable Federal
programs to deliver the experience
taxpayers deserve, they must undertake
three general categories of activities:
Conduct ongoing customer research,
gather and share customer feedback, and
test services and digital products.
These data collection efforts may be
either qualitative or quantitative in
nature or may consist of mixed
methods. Additionally, data may be
collected via a variety of means,
including but not limited to electronic
or social media, direct or indirect
observation (i.e., in person, video and
audio collections), interviews,
questionnaires, surveys, and focus
groups. HUD will limit its inquiries to
data collections that solicit strictly
voluntary opinions or responses. Steps
will be taken to ensure anonymity of
respondents in each activity covered by
this request.
The results of the data collected will
be used to improve the delivery of
Federal services and programs. It will
include the creation of personas,
customer journey maps, and reports and
summaries of customer feedback data
and user insights. It will also provide
government-wide data on customer
experience that can be displayed on
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performance.gov to help build
transparency and accountability of
Federal programs to the customers they
serve.
Respondents: Collections will be
targeted to the solicitation of opinions
from respondents who have experience
with the program or may have
experience with the program in the near
future. For the purposes of this request,
‘‘customers’’ are individuals,
businesses, and organizations that
interact with a Federal Government
agency or program, either directly or via
a Federal contractor. This could include
individuals or households; businesses
or other for-profit organizations; not-forprofit institutions; State, local or tribal
governments; Federal government; and
Universities.
Estimated Number of Respondents:
1,500,000.
Estimated Number of Responses:
1,500,000.
Frequency of Response: One time per
collection.
Average Hours per Response: Varied,
dependent upon the data collection
method used. The possible response
time to complete a questionnaire or
survey may be 3 minutes or up to 2
hours to participate in an interview.
Estimated Burden: 75,000.
B. Solicitation of Public Comment
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
comment in response to these questions.
C. Authority
Section 3507 of the Paperwork
Reduction Act of 1995, 44 U.S.C.
chapter 35.
Joseph Carter,
Customer Experience Strategist, Office of the
Chief Financial Officer.
[FR Doc. 2024–10875 Filed 5–16–24; 8:45 am]
BILLING CODE 4210–67–P
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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
Office of the Secretary,
Department of Housing and Urban
Development (HUD or the Department).
ACTION: Notice.
AGENCY:
In accordance with the Build
America, Buy America Act (BABA or
the Act), this notice advises that HUD is
proposing an extension to the
previously issued public interest,
general applicability Tribal Consultation
waiver until September 30, 2024 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). This proposed 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 13175, Consultation
and Coordination with Indian Tribal
Governments, before applying the Buy
America preference to programs that
affect Tribal communities.
DATES: HUD published this proposed
waiver extension on its website on May
10, 2024. Comments on the proposed
waiver set out in this document are due
on or before June 17, 2024. HUD will
consider comments received and
announce any formal adoption of this
proposed waiver extension through a
subsequent notice. If made final, the
waiver extension would apply to awards
obligated or incrementally funded on or
after the effective date of the waiver
extension until September 30, 2024. In
the case of awards obligated prior to the
effective date, the proposed waiver
extension would apply to expenditures
on or after the effective date of the
waiver extension.
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.
SUMMARY:
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Federal Register / Vol. 89, No. 97 / Friday, May 17, 2024 / Notices
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).
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 BuildAmerica
BuyAmerica@hud.gov.
SUPPLEMENTARY INFORMATION:
I. Build America, Buy America
The Build America, Buy America Act
was enacted on November 15, 2021, as
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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 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 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
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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
https://www.hud.gov/program_offices/
general_counsel/build_america_buy_
america/waiver. Additionally, HUD
previously published two general
applicability, public interest waivers of
the BAP in connection with FFA
provided to Tribal 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 proposed 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
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.
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applying the Buy America Preference to
programs that affect Tribes.
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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 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-toGovernment 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
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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
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:
• National Congress of American
Indians Mid-Year session, Prior Lake,
Minnesota, June 7, 2023;
• Southern Plains Indian Housing
Association session, Durant, Oklahoma,
July 11, 2023;
• Nevada/California Indian Housing
Association, Sparks, Nevada, August
13–16, 2023;
2 https://www.hud.gov/program_offices/public_
indian_housing/ih/regs/govtogov_tcp. See also 81
FR 40893.
3 https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/01/26/memorandum-ontribal-consultation-and-strengthening-nation-tonation-relationships/.
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• United Native American Housing
Association conference, Salt Lake City,
Utah, August 22–24, 2023;
• Northwest Indian Housing
Association, Coeur d’Alene, Idaho,
September 12–14, 2023;
• Affiliated Tribes of Northwest
Indians Annual Meeting, Chehalis,
Washington, September 18–21, 2023;
• HUD ONAP National Tribal
Housing Summit, Saint Paul,
Minnesota, October 31–November 2,
2023;
• National Congress of American
Indians Conference, New Orleans,
Louisiana, November 12–17, 2023;
• 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 during this process.
VI. Public Interest in an Extension of
HUD’s General Applicability Waiver of
the BAP for FFA Provided to Tribal
Recipients
This proposed 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
Federal financial assistance agreements
with Tribal Recipients. The proposed
waiver extension would apply to awards
obligated or incrementally funded on or
after the effective date of the proposed
waiver extension until September 30,
2024. In the case of awards obligated
prior to the effective date, the proposed
waiver extension would apply to
expenditures on or after the effective
date of the final waiver. HUD is seeking
comment on the granting of a limited
extension to HUD’s existing public
interest, general applicability waiver of
the BAP in connection with HUD’s FFA
to Tribal Recipients for HUD to conduct
additional Tribal Consultations. HUD
proposes this limited 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
waiver, as HUD transitions to full BABA
compliance in a timely manner. This
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approach is consistent with the policy
of Executive Order 13175.
During the proposed waiver
extension, 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
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 SelfDeterminations are respected and the
treaty and trust obligations of the United
States are honored. At the conclusion of
this proposed limited 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 Buy America Preference
across its programs providing covered
FFA for infrastructure projects, while
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recognizing the unique government-togovernment relationship it has with
Tribal Recipients receiving HUD FFA
for infrastructure projects and the new
directives set forth in Executive Order
14112. HUD is committed to engaging
its Federal agency partners in a timely
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 proposed waiver
extension announced in this notice for
a period of 30 days. If made final, the
proposed waiver extension would apply
to awards obligated or incrementally
funded on or after the effective date of
the proposed waiver extension until
September 30, 2024. In the case of
awards obligated prior to the effective
date, the waiver would apply to
expenditures on or after the effective
date of the final waiver.
Adrianne R. Todman,
Acting Secretary.
[FR Doc. 2024–10860 Filed 5–16–24; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–7086–N–01]
60-Day Notice of Proposed Information
Collection: Management Certification &
Entity Profile; OMB Control No.: 2502–
0305
Office of the Assistant
Secretary for Housing—Federal Housing
Commissioner, HUD.
ACTION: Notice.
AGENCY:
HUD is seeking approval from
the Office of Management and Budget
(OMB) for the information collection
described below. In accordance with the
Paperwork Reduction Act, HUD is
requesting comment from all interested
parties on the proposed collection of
information. The purpose of this notice
is to allow for 60 days of public
comment.
SUMMARY:
DATES:
Comments Due Date: July 16,
2024.
Interested persons are
invited to submit comments regarding
this proposal.
Written comments and
recommendations for the proposed
information collection can be sent
within 60 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
ADDRESSES:
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43427
‘‘Currently under 60-day Review—Open
for Public Comments’’ or by using the
search function. Interested persons are
also invited to submit comments
regarding this proposal by name and/or
OMB Control Number and should be
sent to: Colette Pollard, Reports
Management Officer, REE, Department
of Housing and Urban Development,
451 7th Street SW, Room 8210,
Washington, DC 20410–5000; telephone
202–402–3577 (this is not a toll-free
number) or email:
PaperworkReductionActOffice@
hud.gov.
FOR FURTHER INFORMATION CONTACT:
Colette Pollard, Reports Management
Officer, REE, Department of Housing
and Urban Development, 451 7th Street
SW, Washington, DC 20410; email
Colette Pollard at Colette.Pollard@
hud.gov or telephone 202–402–3400.
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.
Copies of available documents
submitted to OMB may be obtained
from Ms. Pollard.
SUPPLEMENTARY INFORMATION: This
notice informs the public that HUD is
seeking approval from OMB for the
information collection described in
Section A.
A. Overview of Information Collection
Title of Information Collection:
Management Certification & Entity
Profile.
OMB Approval Number: 2502–0305.
OMB Expiration Date: 09/30/2023.
Type of Request: Reinstatement,
without change, of previously approved
collection for which approval has
expired.
Form Number: HUD–9832
Management Entity Profile; HUD–9839–
a Project Owner’s Certification for
Owner-Managed Multifamily Housing
Projects; HUD–9839–b Project Owner’s/
Management Agent’s Certification for
Multifamily Housing Projects for
Identity-of-Interest or Independent
Management Agents; HUD–9839–c
Project Owner’s/Borrower’s Certification
for Elderly Housing Projects Managed
by Administrators.
Description of the need for the
information and proposed use: Owners
of HUD-held, -insured, or subsidized
multifamily housing projects must
provide information for HUD’s oversight
of management agents/entities.
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[Federal Register Volume 89, Number 97 (Friday, May 17, 2024)]
[Notices]
[Pages 43424-43427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10860]
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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, Department of Housing and Urban
Development (HUD or the Department).
ACTION: Notice.
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SUMMARY: In accordance with the Build America, Buy America Act (BABA or
the Act), this notice advises that HUD is proposing an extension to the
previously issued public interest, general applicability Tribal
Consultation waiver until September 30, 2024 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). This proposed 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 13175,
Consultation and Coordination with Indian Tribal Governments, before
applying the Buy America preference to programs that affect Tribal
communities.
DATES: HUD published this proposed waiver extension on its website on
May 10, 2024. Comments on the proposed waiver set out in this document
are due on or before June 17, 2024. HUD will consider comments received
and announce any formal adoption of this proposed waiver extension
through a subsequent notice. If made final, the waiver extension would
apply to awards obligated or incrementally funded on or after the
effective date of the waiver extension until September 30, 2024. In the
case of awards obligated prior to the effective date, the proposed
waiver extension would apply to expenditures on or after the effective
date of the waiver extension.
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.
[[Page 43425]]
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).
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
[email protected].
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 https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver. Additionally, HUD previously published two general
applicability, public interest waivers of the BAP in connection with
FFA provided to Tribal 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 proposed 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
[[Page 43426]]
applying the Buy America Preference to programs that affect Tribes.
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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.
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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 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\
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\2\ https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp. See also 81 FR 40893.
\3\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/.
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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:
National Congress of American Indians Mid-Year session,
Prior Lake, Minnesota, June 7, 2023;
Southern Plains Indian Housing Association session,
Durant, Oklahoma, July 11, 2023;
Nevada/California Indian Housing Association, Sparks,
Nevada, August 13-16, 2023;
United Native American Housing Association conference,
Salt Lake City, Utah, August 22-24, 2023;
Northwest Indian Housing Association, Coeur d'Alene,
Idaho, September 12-14, 2023;
Affiliated Tribes of Northwest Indians Annual Meeting,
Chehalis, Washington, September 18-21, 2023;
HUD ONAP National Tribal Housing Summit, Saint Paul,
Minnesota, October 31-November 2, 2023;
National Congress of American Indians Conference, New
Orleans, Louisiana, November 12-17, 2023;
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 during this process.
VI. Public Interest in an Extension of HUD's General Applicability
Waiver of the BAP for FFA Provided to Tribal Recipients
This proposed 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 Federal financial assistance agreements with Tribal
Recipients. The proposed waiver extension would apply to awards
obligated or incrementally funded on or after the effective date of the
proposed waiver extension until September 30, 2024. In the case of
awards obligated prior to the effective date, the proposed waiver
extension would apply to expenditures on or after the effective date of
the final waiver. HUD is seeking comment on the granting of a limited
extension to HUD's existing public interest, general applicability
waiver of the BAP in connection with HUD's FFA to Tribal Recipients for
HUD to conduct additional Tribal Consultations. HUD proposes this
limited 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 waiver, as HUD transitions to full BABA
compliance in a timely manner. This
[[Page 43427]]
approach is consistent with the policy of Executive Order 13175.
During the proposed waiver extension, 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 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 proposed
limited 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 Buy America Preference 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 and the new directives
set forth in Executive Order 14112. HUD is committed to engaging its
Federal agency partners in a timely 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 proposed waiver extension announced in
this notice for a period of 30 days. If made final, the proposed waiver
extension would apply to awards obligated or incrementally funded on or
after the effective date of the proposed waiver extension until
September 30, 2024. In the case of awards obligated prior to the
effective date, the waiver would apply to expenditures on or after the
effective date of the final waiver.
Adrianne R. Todman,
Acting Secretary.
[FR Doc. 2024-10860 Filed 5-16-24; 8:45 am]
BILLING CODE 4210-67-P
