U.S. Department of Homeland Security

Washington, DC 20472

March 14, 2023 

Re: Public Interest: De Minimis 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”) for otherwise covered infrastructure 

project purchases, totaling up to 5% of the total applicable project costs1, up to a maximum of 

$1,000,000 (a de minimis threshold), to reduce the administrative burden for recipients and 

subrecipients. Once a Federal financial assistance recipient’s total purchases of materials 

otherwise covered by the Buy America preference reach 5% of applicable project costs or the 

de minimis threshold of $1,000,000, whichever is lower, all other applicable project purchases 

must comply with the Buy America preference. A de minimis waiver ensures that recipients 

and Federal agencies make efficient use of limited resources, especially if the cost of 

processing the individualized waiver(s) would risk exceeding the value of the items waived. 

Guidance outlining the application of the de minimis waiver is forthcoming.

DATES: This waiver is effective upon approval date, which is March 14, 2023, and will remain 

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

1 Applicable project costs are defined for the purpose of this waiver as material costs subject to the Buy America 

preference.
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assistance infrastructure projects for five years from the approval 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 

Investments and Jobs Act (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.

SUPPLEMENTARY INFORMATION:

I. Build America, Buy America

The Build America, Buy America Act (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 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 
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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 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 De 

Minimis products

FEMA is approving a general applicability waiver to the Buy America preference for 

otherwise covered infrastructure project purchases, totaling up to 5% of the total applicable 

project costs, as referenced in Footnote 1 on Page 1, up to a maximum of $1,000,000. The 

waiver is being established 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 distract from the focus on higher value BABAA 

compliant items. Without this waiver, awards may be delayed for infrastructure projects as 

award recipients must exert considerable effort accounting for the sourcing of miscellaneous, 

low-cost items and systematically 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 
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financial assistance programs subject to BABAA), $1.7 billion in project costs would be 

subject to BABAA. Of those $1.7 billion, FEMA will waive otherwise covered infrastructure 

project purchases, totaling up to 5% of the total applicable project costs, as referenced in 

Footnote 1 on Page 1, up to a maximum of $1,000,000. These figures support that a de minimis 

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.

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 de minimis waiver allows the Agency to dedicate critical personnel to 

the compliance activities of higher value BABAA compliant items and strengthen the Agency’s 

ability 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 de minimis 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 is

effective upon approval date, which is March 14, 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 approval date. As FEMA develops efficient waiver review 

capabilities, FEMA will review this waiver within five years of the date on which the waiver 
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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 sixteen 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 waivers as published in this Final Notice. The comments generally favored a De

Minimis waiver as proposed.

A total of seven commenters supported the De Minimis waiver as written, while two

commenters supported the waiver but noted that only 5% should be limited to material costs, 

there should be a 1% cap on any one item, and that a documentation requirement should be 

implemented. Another commenter supported the waiver but with an increase of 10% of project 

costs and with no cap and one commenter suggested a cap greater than $1,000,000. Additionally, 

one commenter submitted questions seeking clarification on compliance to the 5% and 

$1,000,000 limits. FEMA appreciates the input provided on the proposed waiver and believes 

that the monetary thresholds set forth align with BABAA intent to ensure domestic preference 

while balancing program financial limitations and obligations when pursuing infrastructure 

projects. 
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One commenter supported the waiver but suggested matching the Department of 

Transportation’s or Federal Transit Authority’s limits. One commenter suggested the waiver 

have a minimum length of five years, while two commenters noted a need for a Minor 

Components Waiver and a waiver for manual gear valve actuators. FEMA appreciates the 

feedback provided by the commenters and notes that the limitations as set forth in this Final 

Notice will remain, however FEMA will regularly review and evaluate issued waivers to ensure 

that waivers align with BABAA intent and provide value to stakeholder program delivery. 

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 de minimis

waiver. 

At this time, after reviewing the submitted comments, FEMA is issuing this De Minimis 

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

grammatical revisions. 

Robert A. Farmer 

Deputy Assistant Administrator 

Office of Enterprise Grant Services, GPD

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 97.138 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