U.S. Department of Homeland Security

Washington, DC 20472

July 1, 2022 

Re: General Applicability of Build America, Buy America Act Provisions as Applied to 

Recipients and Subrecipients of FEMA Federal Financial Assistance Programs for 

Infrastructure

AGENCY: Grant Programs Directorate, Federal Emergency Management Agency (FEMA)

ACTION: Notice

SUMMARY: In accordance with the Build America, Buy America Act (BABAA) this notice 

advises that FEMA grants a general applicability waiver for six months to the Buy America 

Domestic Content Procurement Preference (“Buy America preference”) to provide the agency 

with sufficient time to maximize the use of American made iron, steel, manufactured products, 

and construction materials in all federally-funded infrastructure projects. FEMA grants this 

waiver to prepare for compliance with the new Made in America standards for iron, steel, 

manufactured products, and construction materials. During this time period, FEMA expects its

stakeholders (i.e., state, local, tribal, and territorial (SLTT) governments, and other recipients 

and subrecipients, as well as industry partners and other stakeholders) to begin the compliance 

process using feedback from this waiver and continued engagement with FEMA through the 

waiver period, while FEMA works to create robust enforcement and compliance mechanisms. 

Industry partners and other stakeholders are encouraged to inform FEMA of currently 

sufficient domestic availability of categories of materials to help FEMA narrow its 

applicability of BABAA to rapidly encourage domestic sourcing. This will also include 

soliciting information relating to FEMA’s potential information collection needs and the 

associated burdens that would be placed on recipients and subrecipients pursuant to the 
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requirements of the Paperwork Reduction Act (PRA). 

DATES: This waiver is effective upon approval, July 1, 2022, and will remain in effect for all 

FEMA federal financial assistance infrastructure projects for a period of six months from the date 

of final approval, which is January 1, 2023.

SUPPLEMENTARY INFORMATION:

I. Build America, Buy America

BABAA was enacted on November 15, 2021, as part of the Infrastructure Investment 

and Jobs Act (IIJA). Pub. L. 117-58. BABAA establishes a domestic content procurement

preference, the Buy America preference, for federal infrastructure programs. Section 70914(a) 

of BABAA establishes that no later than 180 days after the date of enactment, FEMA must

ensure that none of the funds made available for infrastructure projects may be obligated by 

FEMA unless FEMA 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, 

BABAA 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. This waiver will 

allow FEMA time to identify the items that are relevant to the programs covered under this 

waiver and assess whether any items will be used in the infrastructure industrial strategy or six 

critical supply chains: the defense industrial base; the public health and biological 

preparedness industrial base; the information and communications technology (ICT) industrial 

base; the energy sector industrial base; the transportation industrial base; and supply chains for 

agricultural commodities and food production.
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II. FEMA’s Progress in Implementation of BABAA

Since the enactment of BABAA, FEMA has worked diligently to implement the Buy 

America preference. Consistent with the requirements of section 70913 of BABAA, FEMA 

has been working with the Department of Homeland Security to produce a report that 

identifies and evaluates all of FEMA’s federal financial assistance programs with potentially 

eligible uses of funds that include infrastructure as defined by BABAA to determine which 

programs would be in compliance with the Buy America preference and which would be 

considered inconsistent with section 70914 of BABAA and thus “deficient” as defined by 

section 70913(c) of BABAA. Pursuant to Office of Management and Budget (OMB) 

Memorandum M-22-11, (Initial Implementation Guidance on Application of Buy America 

Preference in Federal Financial Assistance Programs for Infrastructure), FEMA has 

developed a website where stakeholders can learn about the requirements of BABAA and it is 

also where FEMA will post proposed waivers for public comment. FEMA has issued a Grant 

Alert notifying stakeholders of the requirements of BABAA. The Grant Alert also provides a 

link to where stakeholders can access the list of FEMA financial assistance programs for 

infrastructure subject and not subject to the requirements of BABAA (also included at the end 

of this document as Table A: FEMA Federal Financial Assistance Programs Subject to 

BABAA Buy America Preference). FEMA has also established an intra-agency working group 

to coordinate the development of official FEMA policy and processes to fully implement the 

requirements of BABAA. 

III.Waivers

Under section 70914(b), FEMA has authority to waive the application of a domestic 
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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. 

This waiver, future proposed and final waivers, and additional information about the 

waiver process may be found on the webpage at this link: https://www.fema.gov/grants/policyguidance/buy-america. 

IV.Public Interest in a General Applicability Waiver of Buy America Provisions

In this notice, FEMA received public comments on the proposed general applicability waiver 

of the Buy America preference to FEMA’s federal financial assistance awards to provide the 

Agency with sufficient time to properly ensure compliance with the Buy America preference 

as required by BABAA. In fiscal year 2022, FEMA award recipients will receive more than 

$4.1 billion through the Agency’s programs where infrastructure is an eligible activity and 

may be subject to the Buy America preference. FEMA believes that full compliance with the 

Buy America preference will create ongoing demand for domestically produced products and 

deepen domestic supply chains. FEMA anticipates that in order to ensure full compliance 

with the Buy America preference, it will need to impose additional information collection 

requirements on recipients and subrecipients of federal financial assistance from FEMA. 

Specifically, FEMA expects such recipients and subrecipients to face additional paperwork
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 burdens in complying with the Buy America preference and in submitting requests for 

product or project specific waivers of the Buy America preference. 

Many of FEMA’s programs are subject to the Buy America preference and have 

previously not required compliance with similar Buy America preferences. Because the potential 

application of the Buy America preference mandated by BABAA is new to FEMA’s federal 

financial assistance programs, FEMA does not have a full understanding of the impact on 

FEMA’s programs. FEMA also does not have adequate information concerning the types of 

documentation that recipients and subrecipients must submit to demonstrate compliance with the 

Buy America preference and must develop a mechanism for seeking product- or project-specific 

waivers under BABAA. With the goal of timely implementing the new Buy America preference 

requirements, FEMA received public comments on whether the proposed waiver of the Buy 

America preference requirement for iron, steel, manufactured products, and construction 

materials under BABAA is in the public interest, and whether the waiver should be granted in 

order to provide sufficient time for FEMA to: 

1. Seek information and feedback from SLTT governments and other recipients and

subrecipients, as well as industry partners and other stakeholders on challenges and

solutions;

2. Gather data on the sourcing of the full range of materials and products used in FEMA

federal financial assistance for infrastructure projects and strategies to build up domestic

capacity; and

3. Allow a reasonable adjustment period after OMB’s issuance of final standards in order

for FEMA, its recipients/subrecipients, industry partners, and other stakeholders to
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develop and transition to the new compliance and certification processes for iron, steel, 

manufactured products, and construction materials.

Therefore, FEMA has determined that it would be contrary to the public’s interest to 

apply the Buy America preference to federal financial assistance obligated by FEMA prior to 

completion of these processes. FEMA is hereby waiving the application of the Buy America 

preference to its federal financial assistance awards or funds obligated during the waiver 

period to allow for the completion of the processes as described and the receipt of approval 

from OMB for the appropriate information collections.

During the waiver period, FEMA expects to take rapid action to prepare for 

compliance with the new requirements, including, for example:

1. Promulgating Agency-wide policy and processes;

2. Ensuring Notices of Funding Opportunity and awards are updated as appropriate

with applicable terms and conditions;

3. Developing and implementing a tribal consultation strategy;

4. Collaborating with industry partners to understand the market and best practices for

evaluating requirements of BABAA;

5. Establishing certification processes for award recipients and subrecipients subject to 

BABAA;

6. Providing user-friendly guidance and training to FEMA staff and stakeholders;

7. Developing contract provisions for recipients and subrecipients to include in their 

contracts and subcontracts funded by FEMA federal financial assistance for 

infrastructure;
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8. Ensuring contractors, subcontractors, and industry partners are prepared to certify

compliance with Buy America requirements, provide all relevant information, and 

include required contract provisions prescribing Buy America requirements; and

9. Creating a tracking system to capture and analyze trends of waiver requests.

During the waiver period, FEMA will also coordinate with the General Services 

Administration (GSA) and the new OMB Made in America Office by ensuring there is 

appropriate cross-linking to websites. FEMA will also ensure staff is trained on using the 

upcoming GSA website, to be made available by November 2022, to ensure the waiver 

process runs smoothly.

By the end of the waiver period, FEMA expects award recipients and subrecipients,

industry partners, and other stakeholders to be ready to implement the Buy America preference

standards, consistent with BABAA and implementing guidance and standards. To the extent 

award recipients, subrecipients, industry partners, or other stakeholders seek future projectspecific or broader waivers beyond this temporary waiver, they should be expected to provide

rigorous justification of the lack of domestic availability, in addition to explaining the difficulty 

of complying and the need for an adjustment period.

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.
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FEMA has concluded that this assessment is not applicable to this waiver, as this waiver is not 

based on the cost of foreign-sourced products. FEMA will perform additional market research 

during the duration of the waiver and consult with International Trade Administration (ITA) to 

better understand the market to limit the use of waivers caused by dumping of foreign-sourced 

products.

VI.Limited Duration of Waiver

FEMA is committed to the successful implementation of the important Buy America 

preference across its financial assistance infrastructure programs and will move swiftly 

towards completion of the processes outlined in this notice. This waiver is effective as of July 

1, 2022 and will remain in effect for all FEMA financial assistance for infrastructure projects 

for six months, through January 1, 2023, or until FEMA publishes a notice extending the 

waiver or a final notice confirming the completion of the PRA process described. The Buy 

America preference requirements will not attach to awards or funding obligated during this

waiver period and the Buy America preference requirements will only attach to any awards or 

funding obligated after this waiver period ends. 

VII. Public Comments

As required under Section 70914 of BABAA, FEMA solicited comments from the 

public on the draft waiver on June 6, 2022 through June 21, 2022. In particular, FEMA invited

interested industry partners to identify themselves and provide information on which of their 

products do or do not comply with the Made in America standards. After reviewing the 
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comments provided, FEMA concluded it was in the public interest to grant this waiver.

_____________________________________ 

Pamela S. Williams

Assistant Administrator, Grant Programs Directorate

FEMA

Attachment: Table A: FEMA Federal Financial Assistance Programs Subject to BABAA Buy 

America Preference
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Table A: FEMA Federal Financial Assistance Programs Subject to BABAA Buy America Preference 

#

FEMA Grant 

Program 

Office

Assistance 

Listing Number FEMA Grant Program

1. GPD 97.044 Assistance to Firefighters Grant Program (AFG)

2. FIMA 97.047 Building Resilient Infrastructure and Communities (BRIC)

3. NPD 97.040 Chemical Stockpile Emergency Preparedness Program (CSEPP)

4. ORR 97.024 Emergency Food and Shelter Program (EFSP – Regular & Humanitarian)

5. GPD 97.042 Emergency Management Performance Grant Program (EMPG)

6. GPD 97.052 Emergency Operations Center Grant Program (EOCGP)

7. GPD 97.044 Fire Prevention & Safety (FP&S)

8. FIMA 97.029 Flood Mitigation Assistance (FMA) (including Swift Current)

9. GPD 97.067 Homeland Security Grant Program (HSGP)

10. GPD 97.057 Intercity Bus Security Grant Program (IBSGP)

11. GPD 97.075 Intercity Passenger Rail (IPR)

12. NCP TBD Next Generation Warning System (NGWS)

13. GPD 97.008 Nonprofit Security Grant Program (NSGP)

14. GPD 97.056 Port Security Grant Program (PSGP)

15. FIMA 97.047 Pre-Disaster Mitigation (PDM)

16. FIMA 97.041 Rehabilitation of High Hazard Potential Dams (HHPD)

17. FIMA TBD Safeguarding Tomorrow Through Ongoing Risk Mitigation (STORM) Act revolving loan fund

18. GPD 97.083 Staffing for Adequate Fire and Emergency Response (SAFER)

19. GPD 97.137 State and Local Cybersecurity Grant Program (SLCGP)

20. GPD 97.075 Transit Security Grant Program (TSGP)

21. GPD 97.137 Tribal Cybersecurity Grant Program (TCGP)

22. GPD 97.067 Tribal Homeland Security Grant Program (THSGP)

23. ORR 97.025 Urban Search & Rescue (US&R)

Legend for FEMA Grant Program Offices:

• FIMA - Federal Insurance and Mitigation Administration

• GPD - Grant Programs Directorate

• NCP - National Continuity Programs

• NPD - National Preparedness Directorate

• ORR - Office of Response and Recovery