[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Notices]
[Pages 26221-26223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09511]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-02]
General Applicability Waiver of Build America, Buy America
Provisions as Applied to Tribal Recipients of HUD Federal Financial
Assistance
AGENCY: Office of the Secretary, U.S. Department of Housing and Urban
Development (HUD).
ACTION: Notice.
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SUMMARY: In accordance with the Build America, Buy America Act, this
notice advises that HUD is proposing a general applicability waiver for
one year to the Buy America Domestic Content Procurement Preference
(``Buy America Preference,'' or ``BAP'') as applied to Federal
Financial Assistance provided to Tribes, Tribally Designated Housing
Entities (TDHEs), and other Tribal Entities. In accordance with the
Act, HUD has found that this general applicability waiver is in the
public interest, as it provides the Department with the opportunity to
first engage in consultation as described in HUD's Tribal Government-
to-Government Consultation Policy, consistent with President Biden's
``Tribal Consultation and Strengthening Nation-to-Nation
Relationships'' Memorandum regarding the potential application of BAP
to such entities.
DATES: Comments on the proposed waiver set out in this document are due
on or before May 14, 2022. This waiver is effective for one year after
May 14, 2022, unless, after reviewing any comments, HUD publishes a
subsequent notice in the Federal Register explaining any changes to its
determination to issue the waiver.
ADDRESSES: Interested persons are invited to submit comments on the
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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). Individuals with speech or hearing impairments may access
this number via TTY by calling the Federal Information Relay Service at
(800) 877-8339 (this is a toll-free number). Copies of all submissions
are available for inspection and downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Joseph Carlile, Department of Housing
and Urban Development, 451 Seventh Street SW, Room 10226, Washington,
DC 20410-5000 at (202) 402-7082. 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 (the Act) was enacted on
November 15, 2021, as part of the Infrastructure Investment and Jobs
Act (IIJA). Public Law 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.
II. HUD's Progress in Implementation of the Act
Since the enactment of the Act, HUD has worked diligently to
implement the BAP. Consistent with the requirements of section 70913 of
the Act, HUD has produced a report that identifies and evaluates all of
HUD's Federal Financial Assistance programs with potentially eligible
uses of funds that include infrastructure as defined by the Act to
determine which programs would be in compliance with the BAP and which
would be considered inconsistent with section 70914 of the Act and thus
``deficient'' as defined by section 70913(c) of the Act. The report was
submitted to Congress and the Office of Management and Budget (OMB) and
published in the Federal Register within 60 days after the date of
enactment of the Act, on January 19, 2022. Specifically, HUD published
the required report in a notice entitled ``Identification of Federal
Financial Assistance Infrastructure Programs Subject to the Build
America, Buy America Provisions of the Infrastructure Investment and
Jobs Act'' in compliance with section 70913. 87 FR 2894. In the report,
HUD erred on the side of over-inclusiveness in accordance with OMB
guidance, finding that none of HUD's discretionary funding programs
reviewed to date fully meet the BAP requirements outlined in section
70914 of the Act and are considered ``deficient'' under the definition
in section 70913(c). Since issuing the report, HUD has held regular
meetings with Departmental offices and consulted administrative and
economic data to plan to implement the Act.
III. Waivers
Under Section 70914(b), HUD has 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
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. Information on this waiver may be
found at the web page at this link: https://www.hud.gov/program_offices/general_counsel/BABA.
IV. Public Interest in a General Applicability Waiver of Buy America
Provisions for Tribes, TDHEs, and Other Tribal Entities
In this notice, HUD is seeking comment on a general applicability
waiver of the BAP to HUD's Federal Financial Assistance awards to
provide the Department with sufficient time to comply with HUD's Tribal
consultation process. HUD's Tribal Government-to-Government
Consultation Policy \1\ 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
Federal financial assistance directed to Tribal communities.
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\1\ https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp. See also 81 FR 40893.
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As HUD's previous Federal Register Notice advised, many of the
Department's programs will be subject to the BAP and have previously
not required compliance with similar Buy American preferences. In
fiscal year 2022, Tribes, TDHEs, and other Tribal Entities will receive
$1 billion through the Department's programs where infrastructure is an
eligible activity, and
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may 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 the majority of HUD's programs and
Federal Financial Assistance, HUD has not had the benefit of engaging
in consultation pursuant to its Tribal Consultation policy concerning
the application of the BAP to Tribes, TDHEs, and other Tribal Entities.
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 take time to engage in Tribal consultation and then fully consider
information gathered through such consultation in determining how best
to ensure compliance with the Act in connection with Federal Financial
Assistance awards to Tribes, TDHEs, and other Tribal Entities. HUD
believes that the Tribal consultation process is key to the successful
implementation of the BAP across its covered Federal Financial
Assistance programs funding infrastructure projects and 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. Therefore, HUD has determined that it would be
contrary to the public's interest to apply the BAP prior to completion
of these Tribal consultation processes. HUD is hereby waiving the
application of the BAP to its Federal Financial Assistance awards to
Tribes, TDHEs, and other Tribal Entities obligated for the duration of
this waiver to allow sufficient time for completion of the Tribal
consultation processes regarding how BAP should be applied to Tribes,
TDHEs, and other Tribal Entities. HUD may choose to consult with Tribes
in coordination with other Federal agencies that also fund Tribal
infrastructure projects.
V. 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.
VI. Limited Duration of the Waiver
HUD remains committed to the successful implementation of the
important BAP across its programs providing covered Federal Financial
Assistance for infrastructure projects, recognizing the unique
relationship it has with Tribes, TDHEs, and other Tribal Entities
receiving HUD Federal Financial Assistance for infrastructure projects.
HUD is committed to engaging in a timely consultation process as noted
above.
This waiver is effective as of May 14, 2022, and will remain in
effect for all Federal Financial Assistance for infrastructure projects
obligated to Tribes, TDHEs, and other Tribal Entities for one year, or
until HUD publishes a notice extending the waiver or a final notice
confirming the completion of HUD's Tribal consultation process and
announcing the termination of this general applicability waiver.
VII. Solicitation of Comments
As required under Section 70914 of the Act, HUD is soliciting
comment from the public on the waiver. Please refer to the DATES and
ADDRESSES sections of this notice for information on submission of
comments.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-09511 Filed 4-29-22; 11:15 am]
BILLING CODE 4210-67-P