Dear Tribal Leader Letter

On behalf of the White House Council on Native American Affairs (WHCNAA), you are cordially invited to an interagency Tribal consultation on Wednesday, September 21, 2022, 2pm – 5pm EST, on the implementation of the Build America, Buy America (BABA) Act (Pub. L. No. 117-58, §§ 70901-52), which was enacted as part of the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58).

BABA applies a new purchasing preference for American-made products that could significantly impact Tribal infrastructure projects. It provides that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”

This provision does not apply to the P.L. 93-638 agreements that Tribes have with the U.S. Department of the Interior.

The consultation will be held virtually on Wednesday, September 21, 2022, from 2:00-5:00pm ET. Prior to this consultation, a virtual Tribal caucus session will be held from 1:00-2:00pm ET.

Background
On April 18, 2022, the White House Office of Management and Budget released a Memorandum for Heads of Executive Departments and Agencies on Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure (M-22-11). This Memorandum details new requirements enacted by law under the Infrastructure Investment and Jobs Act (Public Law P.L. 117-58), requiring that non-emergency infrastructure financed directly (e.g., Federal grants) or indirectly (e.g., loan guarantees and other types of financial assistance) must be constructed using iron, steel, manufactured products, and construction materials which are produced in the United States.

Amongst these requirements, this Memorandum directs agencies to consult with tribes pursuant to Executive Order 13175. The White House Council on Native American Affairs facilitates inter-agency collaboration and coordination on Tribal issues, including consultation. Rather than agencies seeking Tribal input separately on BABA, the White House Council on Native American Affairs (WHCNAA) is coordinating a joint Tribal consultation on this important issue.

Agencies/Departments Jointly Consulting (With Link to BABA Site of Approved Waivers)
• U.S. Department of Agriculture (USDA)
• U.S. Department of Commerce, National Telecommunications and Information Administration (NTIA)
• U.S. Department of Energy (DOE)
• U.S. Department of Health and Human Services, Administration for Native Americans (ANA)
• U.S. Department of Housing and Urban Development (HUD)
• U.S. Department of the Interior (DOI)
• U.S. Small Business Administration (SBA)
• U.S. Department of Transportation (DOT)

Scope of Consultation
Under this law, agencies must require that grantees, cooperative agreement recipients, and (direct or guarantee) loan recipients use domestic iron, steel, manufactured products, and construction materials in each funded infrastructure project. Agencies are authorized under BABA to issue waivers for specific projects under certain circumstances. WHCNAA is hosting this consultation to better inform agencies on the scope of Tribal Nations’ needs for infrastructure projects, the types of materials Tribes commonly use, whether Tribes source or offer covered materials, and how waivers should be structured where allowable by law.

Registration
Tribal Caucus:
• Date: Wednesday, September 21, 2022
• Time: 1:00p.m. ET – 2:00p.m. ET
• Register at: https://www.zoomgov.com/meeting/register/vJItcO6ppjgoHc_V5wNsj_fjmkdQAVRHSCk
• Note: Tribal caucus is an opportunity for Tribal leaders to discuss relevant BABA consultation issues without federal policymakers online.

Tribal Consultation:
• Date: Wednesday, September 21, 2022
• Time: 2:00p.m. ET – 5:00p.m. ET
• Register at: https://www.zoomgov.com/webinar/register/WN_Qcl_sy3bQwmD6dxmYiYkyA
• Note: Tribal leaders interested in participating in Tribal Caucus must also register for Tribal Consultation.

Proxies
In the event you cannot attend and wish to send a proxy, please notify the White House Council on Native American Affairs by Wednesday, September 14, 2022, at whcnaa@bia.gov.

Written Comment
The White House Council on Native American Affairs encourages tribal leaders to submit written consultation remarks by Thursday, October 20, 2022, to whcnaa@bia.gov.

Questions
Please contact whcnaa@bia.gov if you have any questions.