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U.S. Department of the Treasury

General Applicability Waiver of Build America, Buy America Provisions for Tribal 

Government 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 general applicability waiver from the Buy 

America Domestic Content Procurement Preference (BAP) as applied to federal financial assistance 

provided to Tribal government recipients of the Local Assistance and Tribal Consistency Fund 

(LATCF), 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. This one-year Tribal consultations waiver will apply to all award agreements entered into with 

Tribal governments during the one-year period beginning on the effective date of the waiver. In 

addition, in the case of award agreements entered into with Tribal governments prior to the date of 

the final waiver, the Tribal consultation waiver will apply to all expenditures incurred after the date 

of the final waiver on an infrastructure project.

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 In accordance with the Build America, Buy America 

Act and for the reasons discussed below, Treasury believes that the Tribal consultation waiver is in 

the public interest. 

DATES: Comments on the proposed waiver were due on or before December 17, 2022. The waiver 

is effective beginning January 17, 2023. The BAP will not apply to award agreements entered into 

by recipients during the one-year period following the effective date of the waiver or to expenditures 

incurred after the effective date of the final waiver by recipients that have entered into award

agreements prior to the effective date of the final waiver.

SUMMARY AND RESPONSE TO COMMENTS: Treasury received one comment from the 

public, from a private steel manufacturing company located in North Carolina. The commenter is 

opposed to Treasury issuing a Tribal consultation waiver from the BAP requirements for iron, steel, 

manufactured products, and construction materials for infrastructure projects funded by awards made 

to Tribal government recipients of the LATCF. The commenter opposes the proposed waiver with 

1 This waiver only applies if there is no other federal financial assistance used for such project that is subject to the 

Buy America Preference.
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respect to steel and asserts that Treasury had ample time to implement BAP. The commenter also

claims Treasury had sufficient enough time to conduct Tribal consultation on the issue due to the 

date of BAP’s enactment, and expresses that a general applicability waiver would undermine the 

purpose of BAP and states that project specific waivers should instead be considered. Tribal 

governments have typically not submitted public comments on proposed Treasury guidance or 

regulations and instead preferred to engage with Treasury through Tribal consultation. Treasury has 

received constant communication from Tribes since opening LATCF requesting more formal Tribal 

consultation prior to the application of BAP to inform Treasury’s implementation with regard to over 

574 Tribal nations with diverse and unique geographies, markets, and internal capacity. This limited 

waiver is to satisfy Treasury consultation obligations and comply with Treasury’s Tribal 

Consultation Policy which was adopted in compliance with Executive Order 13175, “Consultation 

and Coordination with Indian Tribal Governments,”. See https://home.treasury.gov/policyissues/coronavirus/assistance-for-state-local-and-tribal-governments/local-assistance-and-tribalconsistency-fund/buy-america-preference for a more detailed summary of specific items that were 

identified in the comments submitted by the public and Treasury’s response. 

FOR FURTHER INFORMATION CONTACT: 

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

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 
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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 the District of Columbia, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin 

Islands, eligible revenue sharing counties and Tribal governments for use on any governmental 

purpose except for a lobbying activity. Payments are to be spread across two tranches, for fiscal years

2022 and 2023. 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. 

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

Many Tribal governments have historically 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.

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 M-22-

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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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. This work to date 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.

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

efforts, the Office of Gulf Coast Restoration has recently issued a six-month adjustment period 

waiver for all requirements of the Act. 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 further ramp up staff or contractual capacity 

in order to minimize delays for critically important ecosystem and economic restoration projects, 

including activities related to disaster preparedness, mitigating climate risk, building resilience, and 

promoting sustainable economic development and job creation. To promote coordination with Direct 

Component recipients, Treasury stood up a Treasury RESTORE Act Domestic Procurement Working 

Group to solicit suggestions from Direct Component eligible entities 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 (ORP), which implements the LATCF, will 

leverage the experience and information developed by the Office of Gulf Coast Restoration. 

IV. Waivers

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 
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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) Tribal Consultation 

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

Fund

Treasury is issuing a program-wide, general applicability (non-product specific) Tribal 

consultation waiver for Tribal government recipients of the LATCF. The Tribal consultation waiver 

will apply to all award agreements entered into with Tribal governments in the one-year period after 

the date of the final waiver.

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 In addition, in the case of award agreements entered into with Tribal 

governments prior to the date of the final waiver, the Tribal consultation waiver will apply to all 

expenditures incurred on an infrastructure project after the date of the final waiver if there is no other 

federal financial assistance used for such project that is subject to the Buy America Preference.4 

The Tribal consultation waiver is necessary for Treasury to comply with its own policies and 

procedures. Specifically, Treasury’s Tribal Consultation Policy was adopted in compliance with 

Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” and 

outlines the internal procedures and principles Treasury must follow when communicating and 

coordinating on Treasury programs and activities that affect Native American Tribes. Treasury’s 

Tribal Consultation Policy recognizes the right of Tribes to self-government and facilitates Tribal 

participation and input in Treasury’s implementation of programs and federal financial assistance 

directed to Tribal communities. For these reasons, OMB’s guidance on application of the BAP 

provides for agencies to engage in Tribal consultations before applying BAP requirements.5 Because 

the LATCF is the first Treasury program that includes Tribes as recipients to be subject to BAP 

mandated by the Build America, Buy America Act, Treasury has not had the benefit of engaging in 

consultation pursuant to its Tribal Consultation Policy concerning the application of the BAP to 

Tribes. Because of the significance and potentially wide scope of new requirements related to 

compliance with BAP, it is imperative that Treasury take time to engage in Tribal consultation and 

then fully consider information gathered through such consultation. Treasury has determined that it 

3 The waiver would apply to any reallocations made pursuant to these award agreements.

4 This condition would be included because under the Buy America, Build America Act and the terms of the award, 

if award funds that are subject to BAP are used for a project, the entirely of expenditures on that project are subject 

to the BAP. 

5 See OMB Memorandum M-22-11, supra n. 2 at 3. 
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would be contrary to the public’s interest to apply the BAP prior to completion of these Tribal 

consultation processes. Treasury’s waiver will allow sufficient time for completion of the Tribal 

consultation processes regarding how BAP should be applied to Tribes in Treasury’s federal financial 

assistance programs. 

As stated above, 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.

Treasury believes that increasing domestic supply for infrastructure projects is in the long-term 

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 Tribal consultation waiver, Treasury recognizes the limited 

capacity of Tribal government recipient governments to implement and comply with the 

requirements of the Act. Tribal government recipients have indicated that immediately applying these 

requirements would lead to project delays and not allow governments to respond to urgent needs 

within their communities. 

Recipients have not yet had the chance to assess the application of the BAP to their use of 

LATCF funds. Recipients have not yet considered the process for applying for project-specific 

waivers. 

The Tribal consultation waiver allows 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 Tribal 

consultation waiver period also allows Treasury to determine how best to provide guidance to 

recipients regarding compliance with the BAP. Should the program be extended, these recipients will 

be in a 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 
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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. Treasury is issuing the Tribal consultation waiver in order 

to better understand recipient needs and provide sufficient time to address these gaps in Treasury’s

knowledge base and anticipates that without a waiver, there would be lengthy delays in recipient 

ability to carry out these critical projects. Over the past six months, Treasury has opened both the 

county and Tribal government portions of the program, which included developing and releasing 

allocation methodology and program guidance, determined compliance, reporting, and audit 

requirements, and award terms and agreement structures. During this time, Treasury concurrently 

engaged and conducted in outreach to stakeholders and recipients on the key details and 

requirements, such as relaying this is not a project-specific grant program, but a flexible revenuesharing program. 

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, but 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 take-up of the program. Should Congress consider an extension of the program, 

the Tribal consultation waiver 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 Tribal consultation 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. By learning directly from 

recipients, Treasury will be well-informed 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 Tribal governments and eligible revenue-sharing counties, Treasury 
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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, 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 PRA 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 Made in America law’s objectives for the 

long term and will use the consultation process 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 state, local, and Tribal 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. 

Treasury also recognizes that Tribes have already expressed significant concerns with the 

application of the BAP to the LATCF program, including as relates to the following issues: 

1. Supply chain issues: Many Tribes have reported that Tribal governments are facing 

resource scarcity because their smaller sized procurements and rurality results in 

suppliers often contracting with larger purchasers for their limited supplies. When 

supplies reach Tribal and rural areas, often the costs are four times higher. Due to 

these constraints, many Tribes report that time is essence in accessing goods as they 

face rising costs. 

2. Weather: Many Tribes are located in rural areas that with severe winter weather,

which limits construction season to a few months. As a result, Tribes were seeking to 

procure goods as soon as possible to enable construction to commence in 2022. 

3. Staff capacity: The majority of Tribes have reported severe capacity constraints as a 

result of deaths and infection among Tribal government staff. This may mean that a 

single Tribal staffer is managing over 30 programs. Tribal governments with high 
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poverty rates are particularly impacted by these constraints and most likely to seek 

LACTF funds before a waiver is granted.

These concerns were included in a July 27, 2022, letter sent by the Coalition of Large Tribes and 

expressed in other communications with Tribal leaders. The concerns that have been raised with 

Treasury so far make it clear that Treasury will need to engage in a thorough consultation process. 

Treasury is issuing a one-year Tribal consultation waiver to allow Treasury to allow it to conduct and 

respond to a Tribal consultation. This period is consistent with the approach taken by other agencies. 

One year will allow Treasury enough time to prepare for and participate in the Tribal consultation, 

review and consider comments received during the consultation, and prepare to implement 

procedures to implement BAP, as necessary, in ways that are responsive to the needs and concerns of 

Tribes as provided in the consultation. 

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 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 issuing a public 

interest waiver.6 Treasury’s analysis has concluded that this assessment is not applicable to the Tribal 

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

VII. Limited Duration of the Waiver

The waiver is effective beginning January 17, 2023. The BAP will not apply to award 

agreements entered into by recipients during the one-year period following the effective date of the 

waiver7or to expenditures incurred after the effective date of the final waiver by recipients that have 

entered into award agreements prior to the effective date of the final waiver. As discussed, the Tribal 

consultation waiver 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”, 

6 See OMB Memorandum M-22-11, supra n. 2 at 12.

7 As noted above, the waiver would apply to any reallocations made pursuant to these award agreements.
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“FOR FURTHER INFORMATION CONTACT”, and “SUMMARY AND RESPONSE TO 

COMMENTS” sections of this notice of the final waiver.