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"Buy America" Preference in FEMA Financial Assistance Programs for Infrastructure

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

These FEMA resources will provide clarity on the applicability of the BABAA requirements to FEMA financial assistance programs and implement a transparent process for waiver requests.

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Respond to the four questions below to learn whether the domestic preference  requirements of the Build America, Buy America Act (BABAA) apply to your project: 1 Program, 2 Date, 3 Project Type, 4  Waivers, BABAA Applies

Respond to four questions to learn whether the domestic preference requirements of BABAA apply to your project.

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The Build America, Buy America Act (BABAA) requires recipients and subrecipients of  certain FEMA financial assistance programs to follow three key requirements for their  infrastructure projects. 1. Domestic Preferences,  2. Contract Language, 3. Waivers

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.

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A generic fact sheet document.

This fact sheet provides key information to FEMA award recipients and subrecipients on the application of three of FEMA’s general applicability waivers of the Build America, Buy America Act domestic preference requirements.

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This is a cover image of the Best Practices guide for the Build America Buy America program.

Review the BABAA Best Practices Guide to understand how to document compliance with the BABAA Requirements.

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Watch FEMA’s instructional brief on the BABAA requirements.

Read the Policy

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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:

  1. Applying the domestic content procurement preference would be inconsistent with the public interest (public interest waiver);
  2. 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
  3. 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 General Applicability Waivers

WaiverApplicability PeriodWaiver Information
Small Projects WaiverFeb. 21, 2023- Feb. 20, 2028Waives 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 WaiverMar. 14, 2023-Mar. 13, 2028Waives the BABAA requirements for up to 5% of the total material costs subject to BABAA, not to exceed $1,000,000.
Minor Components WaiverJul. 23, 2023- Jul. 22, 2028Waives up to five percent of the total material cost of an otherwise domestically produced iron or steel product.
Pacific Territories WaiverAug. 1, 2023 - Jan. 31, 2025Waives 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.

Approved Project Specific Waivers

WaiverTypeApplicability PeriodWaiver Information
Weber Basin Conservancy District: Double Offset Butterfly Valves, Plunger Valves, and ActuatorsNon-availabilityMar. 15, 2024 - Dec. 31, 2025This waiver action permits the use of non-domestic double offset butterfly valves, plunger valves, and actuators in the Davis Aqueduct Reach 1 Parallel Pipeline Project.
Weber Basin Conservancy District: Earthquake Resistant Mechanical Joints and Vertical PumpsNon-availabilityDec. 22, 2023 - Dec. 31, 2025This waiver action permits the use of non-domestic earthquake resistant mechanical joints and vertical pumps in the Davis Aqueduct Reach 1 Parallel Pipeline Project.

Proposed Waivers for Public Comment

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There are no proposed waivers for public comment at this time. Waivers will be posted here as available.

Expired Waivers

WaiverApplicability PeriodWaiver Information
Six Month General ApplicabilityJul. 1, 2022- Jan. 1, 2023Waiver 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 TribesFeb. 6, 2023- Aug. 6, 2023Waives 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: