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What type of Service-funded projects does BABA affect? BABA applies to any public infrastructure project carried out in the United States under federal awards issued, or amended to add funding, after May 14, 2022, unless to project is covered by an applicable waiver (see waiver section below).
Does BABA apply to my project? BABA requirements apply when ALL the following conditions are met:
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Examples provided in the IIJA and 2 CFR 184(c) include, at a minimum, the structures, facilities, and equipment for:
- roads, highways, and bridges;
- public transportation;
- dams, ports, harbors, and other maritime facilities;
- intercity passenger and freight railroads;
- freight and intermodal facilities;
- airports;
- water systems, including drinking water and wastewater systems;
- electrical transmission facilities and systems;
- utilities; broadband infrastructure; and buildings and real property; and
- energy generation, transportation, and distribution including electric vehicle (EV) charging.
This list is not exhaustive. Under 2 CFR 184.3(d), Federal agencies are directed to interpret “infrastructure” broadly, considering whether the project will serve a public function, whether it is publicly owned and operated, or privately operated on behalf of the public, and whether it functions as a place of public accommodation. The guidance FASO has received further directs that this interpretation should be based on:
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- Iron and Steel Products. All manufacturing processes, from melting through coating application, must occur in the United States. This applies to items consisting wholly or predominantly (i.e., more than 50% of component cost) of iron and steel.
- Manufactured Products. A manufactured product is compliant if:
- It was manufactured in the United States, and
- More than 55 percent of the total cost of all components of the manufactured product are mined, produced, or manufactured in the United States (unless a different domestic content standard applies under law or regulation).
3. Construction Materials. All manufacturing processes must occur in the United States. Construction materials include:
- Non-ferrous metals
- Plastics and polymer-based products
- Glass and optic glass
- Fiber optic cable and optical fiber
- Lumber
- Engineered wood
- Drywall
Note: Aggregate materials (stone, sand, gravel, cement, additives) are explicitly exempt under IIJA §70917(c).
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- Permanently or functionally attached to the public infrastructure, or
- Consumed in or incorporated into public infrastructure, or
- Required for the project to achieve its intended public function.
BABA does not apply to:
- Tools, equipment, and supplies removed after construction (e.g. temporary scaffolding),
- Most furnishings (e.g. movable chairs or desks), or
- Mobile equipment used within or at the site (e.g. Trucks or boats).
Are there exceptions to BABA? Some (or all) costs of an otherwise covered infrastructure project may be exempt from BABA requirements if it falls under one of the existing general applicability waivers, including:
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Recipients may also request project-specific or product-specific waiver. These waiver options are discussed below.
Do U.S. federally financed infrastructure projects outside of the United States have to comply with BABA? No. Under 2 CFR 184.1, BABA only applies to infrastructure projects in the United States." Projects occurring in Canada, Mexico, or other countries are not subject to BABA.
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Recipients should request written confirmation from the manufacturer that the product meets the 55% component cost requirement. If the manufacturer cannot verify compliance or no compliant option is available, then the recipient would need to submit a product-specific waiver request (see below).
Does the Service have a certificate of origin template available for documenting compliance with BABA? No, the Service does not have a certificate of origin template available, nor do we require a specific format for certifying or documenting compliance. Certifications may be in any format, provided they:
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If project costs exceed the SAT due to cost overruns paid entirely with non-Federal funds, does the small grants waiver still apply? No. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements. The threshold for the small grants waiver is at the total award level, which includes all federal funds, cost share contributions, and other costs required to complete the approved project (i.e., “overmatch”). Since the total costs exceed the SAT, the small grants waiver would not apply (see project expenses section above).
De Minimis General Applicability Waiver
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This section describes BABA waivers that were in effect following the passage of the IIJA, but which have since expired. These expired waiver may have overlapped a portion of the Period of Performance for an existing award. Recipients should ensure that the BABA exemptions provided by these expired waivers were only applied to applicable applicable portions of their award Period of Performance. . For information on current BABA waivers, refer to section section above.
DOI General Applicability Waiver – Six-Month Adjustment Period
Expired: July 13, 2022 to January 12, 2023
Temporarily suspended the BABA requirements for all applicable awards during the effective period to allow non-Federal entities to adjust their procurement processes to fully comply with the BABA requirements. Once the waiver expired, the BABA requirements were again applicable to all USFWS awards that involved infrastructure projects.
Pacific Island Territories Waiver
Expired: August 15, 2023 to February 15, 2025
Allowed the use of non-domestic iron, steel, manufactured products, and construction materials in infrastructure projects located within the Pacific Island territories of CNMI, Guam, or American Samoa when the total Federal award exceeded the Simplified Acquisition Threshold. For current projects, refer to the Multi-Agency Pacific Island Territories Waiver described in the previous section.
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A one-year general applicability waiver to BABA requirements for federal financial assistance agreements awarded to Federally recognized Indian Tribes. For current projects, refer to the Multi-Agency Tribal Waiver described in the previous section.
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Recipients seeking a waiver from BABA requirements should first verify that the project is subject to BABA (see Applicability section above). If BABA requirements apply, and compliance with BABA is not feasible, a recipient may request a BABA waiver for a specific grant or project, subject to review by the Made in America Office, if they can adequately demonstrate:
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For FWS-issued awards, recipients must submit all waiver requests to the Service in writing to : fwhqfasupport@fws.gov.the Federal Project Officer listed on their Notice of Award.
Subject Line: “Buy America Waiver Request.”
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"Federal agencies should use the following principles before issuing a waiver of any type:
- Time-limited: In certain limited circumstances, a Federal agency may determine that a waiver should be constrained principally by a length of time, rather than by the specific projects to which it applies. Waivers of this type may be appropriate, for example, when an item that is “nonavailable” is widely used in projects funded by a particular program’s awards. When issuing such a waiver, the agency should identify a short, definite time frame (e.g., no more than one to two years [underline added]) designed to ensure that, as domestic supply becomes available, domestic producers will have prompt access to the market created by the program.
- Targeted: Waivers that are not limited to particular projects should apply only to the item(s), product(s), or material(s) or category(ies) of item(s), product(s), or material(s) necessary. Waivers that are overly broad will tend to undermine domestic preference policies. Broader waivers will receive greater scrutiny from Made In America Office.
- Conditional: Federal agencies are encouraged to issue waivers with specific conditions that support the policies of the Act and the Executive Order."
These principles and criteria should be viewed as minimum requirements for the use of waivers by Federal agencies."
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For program-specific financial assistance questions, contact the Service Point of Contact listed in your Notice of Funding Opportunity or Notice of Award.General questions regarding BABA applicability or implementation may be sent to: fwhqfasupportperc@fws.gov.
