Background
Resources
Waivers
The Build America, Buy America Act (BABAA) requires all federal agencies, including FEMA, to ensure that no federal financial assistance for “infrastructure” projects is provided unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.
For subject FEMA grant programs, these “Buy America” preference requirements apply to awards issued on or after Jan. 2, 2023, as well as funds obligated to existing awards issued on or after Jan. 2, 2023.
Background
The Office of Management and Budget (OMB) has revised Title 2 of the Code of Federal Regulations (2 C.F.R.) to add a new part 184 and revise 2 C.F.R. § 200.322, to provide guidance to federal agencies on how to apply the domestic preference requirements as set forth in BABAA. OMB also issued OMB Memorandum M-24-02, Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure, which provides supplemental implementation guidance to federal agencies on: (1) the application of a Buy America preference to federal financial assistance programs for infrastructure; and (2) the process for waiving such a Buy America preference, including the circumstances under which waivers may be justified as consistent with applicable law and policy. These revisions are effective for subject FEMA awards issued on or after Oct. 23, 2023.
For subject FEMA awards issued between Jan. 2, 2023- Oct. 22, 2023, 2 C.F.R. Part 184 and OMB Memorandum M-24-02 do not apply. Instead, see OMB Memorandum M–22–11, Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure for BABAA implementation guidance.
Not all FEMA grant programs are subject to BABAA. For instance, many of FEMA's disaster programs are not subject to the requirements, including but not limited to, the Public Assistance Program (PA), Hazard Mitigation Grant Program (HMGP), and Fire Mitigation Assistance Grant Program (FMAG). For a full list of FEMA programs not subject to BABAA, please visit Programs and Definitions.
Programs and Definitions
Please see the following links for key definitions of federal financial assistance, as well as the full lists of FEMA federal financial assistance programs for which BABAA does and does not apply.
Subject to BABAA
Definitions
NOT Subject to BABAA
FEMA Resources
The interim policy will provide clarity on the applicability of the BABAA requirements to FEMA financial assistance programs and implements a transparent process for waiver requests.
Respond to four questions to learn whether the domestic preference requirements of BABAA apply to your project.
Once you learn whether your project is subject to the domestic preference requirements of BABAA, download this flyer to learn about the three key requirements of BABAA.
Review the BABAA Best Practices Guide to understand how to document compliance with the BABAA Requirements.
Watch FEMA’s instructional brief on the BABAA requirements.
Read the Policy
Read Frequently Asked Questions
Issuing "Buy America" Waivers
Per section 70914(b) of BABAA, FEMA may waive the application of a "Buy America" preference under an infrastructure program in any case in which FEMA finds that:
- Applying the domestic content procurement preference would be inconsistent with the public interest (public interest waiver);
- Types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality (nonavailability waiver); or
- The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25% (unreasonable cost waiver).
Public Comment Period
As outlined in OMB Memorandum M-24-02, before issuing a waiver, FEMA must make publicly available on FEMA’s website a detailed written explanation for the proposed determination to issue the waiver and provide at least 15 days for public comment on the proposed waiver. FEMA uses this website to post proposed waivers for public comment from the "Buy America" preference requirement for a FEMA program.
FEMA Waivers
Approved Waivers
| Waiver | Applicability Period | Waiver Information |
|---|---|---|
| Small Projects Waiver | Feb. 21, 2023- Feb. 20, 2028 | Waives the BABAA requirements for infrastructure projects under FEMA awards or subawards where the total project cost does not exceed the federal simplified acquisition threshold (currently set at $250,000). |
| De Minimis Waiver | Mar. 14, 2023-Mar. 13, 2028 | Waives the BABAA requirements for up to 5% of the total material costs subject to BABAA, not to exceed $1,000,000. |
| Minor Components Waiver | Jul. 23, 2023- Jul. 22, 2028 | Waives up to five percent of the total material cost of an otherwise domestically produced iron or steel product. |
| Pacific Territories Waiver | Aug. 1, 2023 - Jan. 31, 2025 | Waives the BABAA requirements for infrastructure projects located in the U.S. Pacific Island Territories of the Commonwealth of Northern Mariana Islands, Guam, and American Samoa. |
Proposed Waivers for Public Comment
Expired Waivers
| Waiver | Applicability Period | Waiver Information |
|---|---|---|
| Six Month General Applicability | Jul. 1, 2022- Jan. 1, 2023 | Waiver of the BABAA requirements for all FEMA award recipients and subrecipients to allow for an adjustment period. This waiver expired on Jan. 1, 2023. |
| Six Month Adjustment Period for Tribes | Feb. 6, 2023- Aug. 6, 2023 | Waives the BABAA requirements for all federally recognized Indian tribes for a 6-month period. Waiver expires on Aug. 6, 2023. |
More Information
If you have any questions, please contact your applicable point of contact for more information, including:
- Office of Management and Budget’s Made in America Office Website (Home | Made in America) and the Build America, Buy America Factsheet and FAQs for Award Recipients (whitehouse.gov).
- State Emergency Management Office for:
- Preparedness Grants: State Administrative Agency (SAA) Contacts
- Hazard Mitigation Assistance Grants: State Hazard Mitigation Officers
- FEMA Regional Grants Office
- FEMA Regional/HQ Program Office