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U.S. Department of the Treasury

Public Interest Adjustment Period General Applicability Waiver of Build America, Buy 

America Provisions for County and Territory Recipients of the Local Assistance and Tribal 

Consistency Fund

ACTION: Notice of Final Waiver

SUMMARY: In accordance with the Build America, Buy America Act, this notice advises that the 

Department of the Treasury (Treasury) is issuing a six-month public interest adjustment period 

general applicability waiver from the Buy America Domestic Content Procurement Preference (BAP) 

as applied to federal financial assistance provided to non-Tribal government recipients of the Local 

Assistance and Tribal Consistency Fund (LATCF), including certain counties, the District of 

Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S. Virgin Islands(county recipients). 1 

The LATCF was established by section 605 of the Social Security Act as added by section 9901 of 

the American Rescue Plan Act. This waiver will cover all iron and steel, manufactured products, and 

construction materials used in infrastructure projects required by the Build America, Buy America 

Act. In accordance with the Build America, Buy America Act, Treasury believes that this public 

interest adjustment period general applicability waiver is in the public interest, as it allows recipients, 

manufacturers and contractors, as well as Treasury, sufficient time to prepare to implement the Act 

for the long-term while allowing critical projects to be funded in the meantime. Treasury is 

separately considering issuing a waiver that would apply to Tribal government recipients of the 

LATCF.

DATES: Comments on the proposed waiver were due on or before September 21, 2022. The waiver 

is effective from September 27, 2022 to March 26, 2023. Under this waiver, the BAP will not apply 

to LATCF award agreements entered into by recipients during the waiver period.

COMMENTS: Treasury did not receive any comments on this waiver.

FOR FURTHER INFORMATION CONTACT: 

Please submit any questions, comments, or concerns to LATCF@treasury.gov.

1 Section 605 (42 U.S.C. 805) provides for Treasury to make payments to “eligible revenue sharing counties,” which 

are defined to include certain counties to be determined by Treasury and the District of Columbia, the 

Commonwealth of Puerto Rico, Guam, and the U.S. Virgin Islands.
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SUPPLEMENTARY INFORMATION:

I. Build America, Buy America

The Build America, Buy America Act was enacted on November 15, 2021, as part of the 

Infrastructure Investment and Jobs Act (IIJA), Pub. L. 117-58. The Build America, Buy America 

Act establishes a domestic content procurement preference, the BAP, for federal infrastructure 

programs. Under the Build America, Buy America Act and guidance issued by the Office of 

Management and Budget (OMB), the iron, steel, manufactured products, and construction materials 

used in an infrastructure project under a LATCF award must be produced in the United States. 

Section 70912 of the Build America, Buy America Act 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. 

The Build America, Buy America Act’s requirements do not apply to expenditures using LATCF 

funds for infrastructure projects undertaken in response to the COVID-19 public health emergency or 

in response to or anticipation of other major disasters or emergencies declared by the President under 

the Stafford Act. 2 

II. Local Assistance and Tribal Consistency Fund 

The American Rescue Plan Act appropriated $2 billion to Treasury to provide payments from 

the LATCF to Tribal governments and eligible revenue sharing counties, defined to include the 

District of Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S. Virgin Islands, for use on 

any governmental purpose except for a lobbying activity. Eligible recipients must submit a request 

for funding to receive their payments, and recipients must submit periodic reports to Treasury on 

their expenditures, but payments are made in full in advance of use by recipients, and Treasury does 

not pre-approve projects consistent with the requirements in section 605 of the Social Security Act as 

added by section 9901 of the American Rescue Plan Act. 

The purpose of the LATCF program is to serve as a general revenue enhancement program. 

Many eligible revenue sharing counties and eligible Tribal governments have historically 

2 More specifically, as provided in OMB’s guidance, the requirements of the Buy America, Build America Act do 

not apply to expenditures made in anticipation of or in response to an event or events that qualify as an “emergency” 

or “major disaster” within the meaning of the Stafford Act, 42 U.S.C. § 5122(1), (2). See OMB Memorandum M22-11, “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance 

Programs for Infrastructure” (April 18, 2022) at 3-4, available at https://www.whitehouse.gov/wpcontent/uploads/2022/04/M-22-11.pdf.
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experienced fluctuations in their revenues, and this program is designed, in part, to supplement 

existing federal programs that augment and stabilize revenues for these communities. Treasury’s 

allocations to recipients are required to take into account the economic conditions of recipients. 

Recipients have broad discretion on uses of funds, similar to the ways in which they may use funds 

generated from their own local revenue sources. Recipients may use these funds on any 

governmental purpose other than a lobbying activity. 

Although at this point the program is limited to two tranches of funding, it is considered to be 

a pilot program to supplement and stabilize revenues of governments that have significant economic 

need. Treasury anticipates that its collection of information through program reporting as to how 

recipients use funds from the LATCF will inform further discussion as to whether to extend the 

program. Treasury also expects that this reporting will inform how, if LATCF is extended, BABA 

could be implemented effectively for LATCF or similar programs.

III. Treasury’s Progress in Implementation of the Act

Since the enactment of the Build America, Buy America Act, Treasury has worked diligently 

to prepare to implement the BAP. To date, this work has primarily been led by Treasury’s Office of 

Gulf Coast Restoration, which administers Treasury’s awards under the Resources and Ecosystems 

Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act 

(“RESTORE Act”). The RESTORE Act Direct Component program administered by the Office of 

Gulf Coast Restoration is the other program administered by Treasury to which the BAP applies. As 

such, the LATCF will leverage the work done by the Office of Gulf Coast Restoration to implement 

the requirements of BABA for the LATCF program.

Treasury has held regular meetings with Departmental and programmatic offices and 

consulted with OMB to plan to implement the requirements of the BAP. Treasury has been an active 

participant in the Made in America Office’s Buy America Preference Working Group. Treasury also 

proactively contacted the program offices for the Environmental Protection Agency (EPA) State 

Revolving Fund, which has implemented domestic content procurement preference requirements for 

iron and steel for water systems projects, to identify lessons learned and best practices. Discussions 

with EPA informed the proposal for a six-month public interest adjustment period general 

applicability waiver, as EPA indicated that even implementing the requirements for iron and steel 

requires significant staff and contractor resources, as well as robust policies, procedures, and 

systems. Treasury also learned through these discussions that few resources exist across the federal 
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government to support the implementation to evaluate the construction materials and manufactured 

products requirements of the Act. Treasury is reviewing the responses to the Request for Information 

(RFI) recently issued by OMB to identify domestic sources of construction materials.

To allow sufficient time to build resources and internal capacity that leverage these 

collaborative efforts, Treasury is issuing this six-month public interest adjustment period general 

applicability waiver for LATCF. This will allow Treasury to apply the lessons learned from other 

agencies’ implementation of domestic content procurement preference requirements for iron and 

steel products, as well as the results of the RFI, and leverage best practices across Treasury. For 

example, to promote coordination with their recipients, the Treasury Office of Gulf Coast Restoration 

stood up a Treasury RESTORE Act Domestic Procurement Working Group to solicit suggestions 

from eligible recipients to develop the best approach for implementation of these new requirements, 

and to fill knowledge gaps and better understand and document the demand for domestically 

produced iron, steel, manufactured products, and construction materials. Treasury’s Office of 

Recovery Programs, which implements the LATCF, is engaging with the Office of Gulf Coast 

Restoration on these matters and will leverage the experience and information developed by the 

Office of Gulf Coast Restoration should the LATCF be extended to provide for awards beyond the 

period of this waiver. 

IV. Waiver

Under Section 70914(b) of the Build America, Buy America Act, Treasury has authority to 

waive the application of a domestic content procurement preference for projects undertaken by 

individual recipients 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. 

V. Public Interest in a General Applicability (Non-Product Specific) Adjustment Period 

Waiver of Buy America Provisions Under the Local Assistance and Tribal Consistency 

Fund
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Treasury is issuing a program-wide, public interest adjustment period general applicability 

(non-product specific) waiver of the BAP for county recipients of the LATCF. The waiver will last 

for six months from September 27, 2022 to March 26, 2023. The BAP will not apply to award 

agreements entered into by county recipients during the waiver period. 3 

Treasury believes that increasing domestic supply for infrastructure projects is in the longterm public interest; Treasury has already seen how supply chain disruptions have negatively 

impacted construction project schedules and budgets. However, in the near term, immediate 

application of these requirements would likely be inconsistent with the public interest for several 

reasons. 

First and foremost, in issuing this waiver, Treasury recognizes the limited capacity of 

recipient governments to implement and comply with the requirements of the Act. Although 

Treasury has not yet determined which counties will be eligible recipients under the LATCF, 

Treasury expects that most county recipients will have very limited capacity, given the intent of the 

program to provide additional revenue support for counties that have suffered a negative revenue 

impact. 

LATCF is a new program and recipients have not yet had the chance to assess the application 

of the BAP to their use of LATCF funds, including assessment of the extent to which the projects 

they will undertake using the funds will involve materials subject to the BAP requirements. 

Recipients have not yet considered the process for applying for project-specific waivers. The waiver 

period will allow recipients to develop an understanding of the BAP requirements, what information 

they will need to determine whether they are compliant with the BAP, what information they will 

need to determine whether to apply for a project-specific waiver, and what resources they will need 

to develop to ensure compliance and apply for waivers. The waiver period will also allow Treasury 

to determine how and to what extent it would be able to provide guidance to recipients regarding 

compliance with the BAP. Should the program be extended, then both recipients and Treasury will 

be in a better position to develop the resources needed to meet these requirements. 

Although LATCF recipients may use these funds on any governmental purpose other than a 

lobbying activity, each infrastructure project funded using their LATCF payment could potentially 

involve hundreds or thousands of components qualifying as manufactured products or construction 

3 The waiver will apply to any reallocations made pursuant to these award agreements.
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materials, for which the timely availability of sufficient quantities of these categories of goods at a 

reasonable cost has yet to be determined. Many iron and steel products (including rebar, manhole 

covers, sheet metal, and steel beams) as well as lumber, PVC, and water treatment pumps are used 

commonly in construction projects, and the universe of possible construction materials and 

manufactured products is largely unknown because those categories of goods relative to LATCF are 

still being defined. Treasury is issuing the waiver to provide sufficient time to address these gaps in 

Treasury’s knowledge base and anticipates that without an adjustment period waiver, there would be 

lengthy delays in recipient ability to meet critical needs. 

Furthermore, the LATCF is structured as a general revenue enhancement financial assistance 

program rather than as a project-based grant program. As noted above, eligible recipients must 

submit a request for funding to receive their payments, and recipients must submit periodic reports to 

Treasury on their expenditures. However, consistent with the American Rescue Plan Act, payments 

are made in full in advance of use by recipients, and Treasury does not pre-approve projects or 

particular expenses. This structure makes it more difficult to engage with recipients on project 

specific waivers and would require recipients to themselves identify when a project would be subject 

to the BAP, to assess how the BAP’s requirements would apply to the acquisition of particular 

materials for that project, and to assess whether a waiver would be appropriate. This will be 

especially difficult for entities with less capacity to engage with Treasury and may discourage takeup of the program which negatively impacts eligible recipients and would be inconsistent with 

legislative intent. Should Congress consider an extension of the program, the adjustment period will 

give Treasury the time it needs to engage with Congress on possible modifications of the program to 

address these challenges. 

Treasury will use the waiver period to engage with recipients about the types of information 

that could be necessary to either request waivers or demonstrate compliance with the BAP 

requirements, the scope of other public interest waivers (e.g., small grant waivers, de minimis 

waivers), recipients’ capacity for implementing and complying with the new requirements, their 

needs for additional guidance, and what new information collections might be necessary as relates 

to BAP requirements should the LATCF program be extended. In the event of an extension of the 

program, Treasury would use waivers as a balanced, practical, and efficient tool to ensure projects 

stay on time, on task, and on budget. By learning directly from recipients, Treasury will be wellinformed so that waivers from BAP will be limited, targeted, and conditional where appropriate.

With knowledge of specific supply chain limitations applicable to the particular circumstances of 
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counties, Treasury will be able to better plan for issuing waivers for specific items or specific 

periods of time to enable agencies, recipients, and the private market to build capacity. 

Additionally, as a result of engagement with stakeholders afforded by an adjustment period, 

Treasury will be equipped to provide recipients of LATCF payments with the opportunity to fully 

evaluate and comment on any proposed information collection for the implementation of the BAP 

requirements subject to the Paperwork Reduction Act clearance process.

In addition, Treasury considered the Office of Recovery Programs’ internal capacity to 

implement the new requirements and how implementation may impact the Office’s ability to 

efficiently carry out other policy and programmatic priorities in accordance with the public interest. 

The Office appreciates the opportunity to advance the Build America, Buy America Act’s 

objectives for the long term and will use the adjustment period to determine what additional 

capacity would be needed should the LATCF program be extended and to request additional budget 

resources, as appropriate. Immediate implementation without capacity-building measures could 

hinder the Office’s core mission to assist county governments with their responses to the public 

health emergency to ensure as robust and equitable a recovery as possible. The system 

development effort to implement BAP requirements would require substantial staff resources to 

ensure successful development, testing, data migration, user training, and system launch, further 

straining the Office’s capacity to implement a major new statutory requirement. 

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

Under section 70921(b)(2) of the Build America, Buy America Act and OMB guidance, 

agencies are expected to assess “whether a significant portion of any cost advantage of a foreignsourced 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 issuing a public 

interest waiver. 4 Treasury’s analysis has concluded that this assessment is not applicable to this

waiver, as this waiver is not based on the cost of foreign-sourced products.

VII. Limited Duration of the Waiver

Treasury is issuing a waiver to be effective for six months from September 27, 2022 to 

March 26, 2023. The BAP will not apply to award agreements entered into by recipients during the 

4 See OMB Memorandum M-22-11 at 12.
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period which the waiver is in place. 5 As discussed above, the waiver period will allow Treasury to 

meet the objectives outlined above.

VIII. Solicitation of Comments

As required under Section 70914 of the Build America, Buy America Act, Treasury

completed the solicitation of comment from the public on this waiver. Please refer to the “DATES”, 

“FOR FURTHER INFORMATION CONTACT”, and “SUMMARY AND RESPONSE TO 

COMMENTS” sections of this notice for information on submission of comments.

5 The waiver will apply to any reallocations made pursuant to these award agreements.