U.S. Department of Homeland Security

Washington, DC 20472

February 6, 2023 

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

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”) as applied to Tribal 

recipients and subrecipients (Tribes). In accordance with BABAA, FEMA has found that this 

general applicability waiver is in the public interest as it provides FEMA with the opportunity 

to first engage in consultation, as described in FEMA Policy #101-002-02, FEMA Tribal 

Consultation Policy, regarding the potential application of the BABAA requirements.

DATES: This waiver is effective upon approval date, which is February 6, 2023, and will remain 

in effect for all awards or funding obligated to Tribal recipients and subrecipients of FEMA federal 

financial assistance infrastructure projects for six months from the date of final approval, which is 

August 6, 2023.

SUPPLEMENTARY INFORMATION:

I. Build America, Buy America

The Build America, Buy America Act (BABAA) was enacted on Nov. 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 
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after the date of enactment, FEMA must ensure that none of the funds made available for

infrastructure projects may be obligated by FEMA 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, 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. 

II. FEMA’s Progress in Implementation of BABAA

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

America preference. FEMA coordinated 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. Pursuant to 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 list proposed waivers for public 

comment. FEMA has issued a Grant Alert notifying internal and stakeholders of the 

requirements of BABAA. The alert provides a link to where they can access the list of FEMA 

financial assistance programs for infrastructure subject and not subject to the requirements of 

BABAA (also included 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 developing official FEMA Policy and processes to fully implement the 
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requirements of BABAA. 

III.Waivers

Under section 70914(b), FEMA 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%. 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 webpage at this link: https://www.fema.gov/grants/policyguidance/buy-america. 

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

Tribal Recipients and Subrecipients

FEMA received comments on the proposed general applicability waiver of the BABAA 

requirements to FEMA’s Federal financial assistance awards to provide the Agency with 

sufficient time to comply with FEMA’s Tribal consultation process. FEMA’s Tribal 

Consultation Policy outlines internal procedures and principles that FEMA must follow when 

communicating and coordinating on FEMA programs and activities that affect Tribes. 

FEMA’s Tribal consultation policy recognizes the right of Tribes to self-governance and 

facilitates Tribal participation and input in FEMA’s implementation of programs and Federal 

financial assistance directed to Tribal communities.
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In Fiscal Year 2021, Tribes received approximately $16,656,907 in funding either as 

direct recipients or subrecipients of FEMA financial assistance programs that are now subject 

to the Buy America preference under BABAA. Based on reported Fiscal 2019 figures, that 

number may increase to approximately $30 million. Because of the significance and 

potentially wide scope of the new BABAA requirements on Tribal governments, FEMA has 

determined that it would be contrary to the public interest to apply the BABAA requirements 

before the completion of the Tribal consultation process. 

FEMA believes the Tribal consultation process is key to the successful implementation 

of the BABAA requirements across its covered federal financial assistance programs funding 

infrastructure projects. A full and meaningful Tribal consultation process will allow FEMA to 

determine the potential impact of the Buy America preference requirements on Tribal 

governments and communities and will inform a tailored implementation for Tribal recipients 

that recognizes the sovereignty and unique status of Tribal governments. 

During the waiver period, FEMA will continue to engage and coordinate Tribal 

Consultations with OMB’s Senior Policy Advisor for Native Affairs at the Domestic Policy 

Council to include FEMA in cross agency Tribal consultations. 

V. Assessment of Cost Advantage of a Foreign-Sourced Product

Under OMB Memorandum M-22-11, 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. FEMA has 

concluded that this assessment is not applicable to this waiver, as this waiver is not based in 
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the cost of foreign-sourced products. FEMA will perform additional market research during 

the duration of the waiver and consult with International Trade Administration 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 programs providing covered federal financial assistance for infrastructure 

projects and will move swiftly towards completion of the processes outlined in this notice. 

This waiver is effective as of approval date, February 6, 2023, and will remain in effect for all

Tribal recipients and subrecipients of federal financial assistance for infrastructure projects for 

six months, until August 6, 2023. The Buy America preference requirements will not attach to 

awards or funding obligated for tribal recipients and subrecipients during the six-month 

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

funding obligated after the waiver expires. 

VII. Public Comments

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

public on the waiver. In particular, FEMA invited interested parties to comment on the length, 

purpose and scope of the waiver to allow FEMA to make an informed final determination on 

this waiver. A total of three comments were received in response to the proposed waiver, with 

one comment not being relevant to the waiver itself. FEMA thoroughly reviewed and 

considered each of the comments in determining to move forward with the issuance of this 

waiver as published in this Final Notice.
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One commenter opposed the six-month adjustment period waiver for Tribal recipients, 

noting that BABAA requirements have been enacted since November 2021 with an intended 

implementation timeline of May 2022. The commenter notes that FEMA recipients already had 

a six-month grace period and noted that affording more time undermines BABAA requirements 

already set forth. FEMA appreciates the perspectives the commenter provided and believes that 

implementing a General Applicability Waiver for Tribal recipients alleviates inequitable burden 

BABAA requirements may have on this subset of recipients. Additionally, granting this waiver 

provides FEMA adequate time to consult with tribal recipients regarding BABAA 

requirements, as required by FEMA’s Tribal Consultation Policy. 

Additionally, one commenter expressed opposition to BABAA due to projected cost 

burdens associated with domestic materials. The commenter noted that waivers helped alleviate 

the burden, however their continued efforts to progress cost-beneficial projects may result in 

challenges in project delivery due to BABAA requirements. FEMA appreciates the input the 

commenter provided and will continue to evaluate how BABAA requirements may place 

financial burdens and challenges for its partners, however, at this time, FEMA and other 

required federal agencies must adhere to requirements set forth by BABAA. At this time, after 

reviewing the submitted comments, FEMA is issuing this General Applicability Waiver for 

Tribal Subrecipients with no substantive changes described herein and with other minor, 

inconsequential grammatical revisions. 

 

Pamela S. Williams

Assistant Administrator, Grant Programs Directorate

FEMA
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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 97.139 Safeguarding Tomorrow Through Ongoing Risk Mitigation Revolving Loan Fund (Safeguarding 

Tomorrow RLF)

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