U.S. Department of Homeland Security

Washington, DC 20472 

February 21, 2023

Re: Public Interest: Small Projects General Applicability Waiver of Section 70914(a) of P.L. 

117-58, Build America, Buy America Act, 2021 for Federal Emergency Management 

Agency (FEMA) Financial Assistance Awards

AGENCY: Grant Programs Directorate, FEMA

ACTION: Notice

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

advises that FEMA grants a general applicability waiver to the Buy America Domestic Content 

Procurement Preference (“Buy America preference”) as applied to small projects, where 

projects under a FEMA federal financial assistance award or subaward is less than the federal 

simplified acquisition threshold (currently set at $250,000). A FEMA federal financial 

assistance award may be comprised of multiple projects with varying levels of cost. The 

waiver would be applicable to any project under the financial award that meets the federal 

simplified acquisitions threshold (currently $250,000 or less). Guidance outlining the 

application of the small projects waiver is forthcoming.

DATES: This waiver will be effective upon approval date, which is February 21, 2023, and will 

remain in effect for recipients and subrecipients of FEMA financial assistance infrastructure 

projects for five years from the issue date. As FEMA develops efficient waiver review 

capabilities, FEMA will review this waiver within five years of the date on which the waiver 

was issued or more often as appropriate to determine its continued utility, applicability and 

relevance with FEMA’s missions and goals consistent with the Infrastructure Investment and 

Jobs Act (IIJA), and the Office of Management and Budget (OMB) Memorandum M-22-11, 
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Initial Implementation Guidance on Application of Buy America Preference in Federal 

Financial Assistance Programs for Infrastructure.

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 

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. Waivers 

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

content 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 
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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 on 

FEMA’s website at https://www.fema.gov/grants/policy-guidance/buy-america. 

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

Small Projects 

The purpose of this waiver is to reduce the administrative burden to recipients and 

subrecipients, which include small and disadvantaged communities, where the costs of 

compliance with the BABAA requirements could significantly negate the benefits of the smallest 

projects. Failure to issue this small projects waiver could undermine the opportunities and 

benefits to such communities requiring FEMA financial assistance, limiting the Agency’s ability 

to deliver critical resources equitably and efficiently. The BABAA requirements apply to 23 

FEMA financial assistance programs. To understand the scope of this waiver, FEMA reviewed 

awards for FY2020 and determined that under FEMA’s Hazard Mitigation Assistance programs 

(which include FEMA’s largest financial assistance programs subject to BABAA), $1.7 billion in 

project costs would be subject to BABAA. Of those $1.7 billion, approximately $10.2 million 

would be exempt under a small projects waiver, which represents 0.6% of total project costs 

subject to BABAA. These figures support that a small projects waiver is appropriate for FEMA 

programs because it would reduce administrative burden for smaller projects while still requiring 

the vast majority of FEMA funding to be subject to the domestic preference requirements of 

BABAA. 

FEMA exercises oversight over the projects undertaken by award and subaward 
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recipients. Under FEMA’s Hazard Mitigation Assistance Programs, each subaward represents a 

discrete construction project. FEMA reviews and approves each subrecipient’s application to 

determine whether the individual project meets program criteria including technical feasibility, 

cost effectiveness and Environmental and Historic Preservation review and is eligible for 

funding. 

Many of the resources and benefits delivered by these programs support projects in 

communities with limited technical and financial expertise to comply with complex, domestic 

preference requirements. Furthermore, FEMA will allocate additional personnel to process 

project-specific waivers. A small projects waiver allows the Agency to dedicate critical 

personnel to the compliance activities of larger projects and to successfully implement the 

BABAA requirements.

To date, FEMA has taken the actions below to implement the BABAA requirements:

1. Promulgated Agency-wide policy;

2. Developed Agency website on BABAA;

3. Ensured Notices of Funding Opportunity and awards were updated, as appropriate, with 

applicable terms and conditions;

4. Engaged in Tribal consultations;

5. Established process for waiver review and routing;

6. Developed outreach strategy plan to provide guidance and training to FEMA staff and 

recipients, subrecipients, and stakeholders; and

7. Developed contract provision and self-certification for recipients and subrecipients to 
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include in their contracts and subcontracts funded by FEMA federal financial assistance 

for infrastructure.

In addition to the actions above, a small projects waiver focused on reducing administrative 

burden on recipients and subrecipients is also a key part of FEMA’s implementation.

IV. 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 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.

V. Limited Duration of Waiver 

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

across its programs providing covered federal financial assistance for infrastructure projects 

and will move swiftly toward completing the processes outlined in this notice. This waiver will 

be effective upon approval date, which is February 21, 2023, and will remain in effect for all 

awards or funding obligated to recipients and subrecipients of FEMA financial assistance 

infrastructure projects for five years from the issue date. As FEMA develops efficient waiver 
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review capabilities, FEMA will review this waiver within five years of the date on which the 

waiver was issued or more often as appropriate to determine its continued utility, applicability 

and relevance with FEMA’s missions and goals consistent with the IIJA, and the 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. 

VI. Public Comments 

FEMA solicited public comments on the waiver as required under Section 70914 of 

BABAA. 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 four comments were received in response to the proposed waiver. 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. The comments generally favored a 

Small Projects waiver as proposed. 

Two commenters expressed support for a larger monetary threshold for the waiver, 

suggesting that the amount should be increased to $500,000 or $1,000,000 rather than the 

proposed $250,000 threshold. One commenter opposed the proposed small projects waiver 

noting that the waiver should not be tied to the Federal simplified acquisition threshold. FEMA 

appreciates the perspectives commenters provided during their review of the Small Projects

Waiver and believes that the small projects waiver monetary threshold is set to the appropriate 

level to balance the intent of the Act with understood limitations and barriers associated with 

smaller projects. 
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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. 

As an extension to public comment on the waivers, FEMA conducted a Request for 

Information (RFI) in July 2022 to solicit feedback from FEMA Headquarters and Regional 

personnel regarding impacts of waivers and needs for additional waivers for grant programs. 

Results from the RFI revealed that stakeholders supported the development of the small 

projects waiver for projects under the federal simplified acquisition threshold (currently 

$250,000).

At this time, after reviewing submitted comments, FEMA is issuing this Small Projects 

waiver with no substantive changes described herein and with other minor, inconsequential 

grammatical revisions. 

 

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 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