Build America, Buy America (BABA) Resources
Background
On November 15, 2021, President Joseph R. Biden Jr. signed into law the Infrastructure Investment and Jobs Act (“IIJA”), which includes the Build America, Buy America Act (“the Act”). The Act strengthens Made in America Laws and will bolster America’s industrial base, protect national security, and support high-paying jobs. The Act requires that no later than May 14, 2022—180 days after the enactment of the IIJA—the head of each covered Federal agency shall ensure that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”
The Infrastructure Investment and Jobs Act requires the following Buy America preference:
- All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
- All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.
- All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.
What defines “infrastructure”?
- An infrastructure project is any activity related to the construction, alteration, maintenance, or repair of infrastructure. Infrastructure does not need to be the primary purpose of the project.
- BABA applies to an entire infrastructure project, even if it is funded by both Federal and non-Federal funds, or funded under more than one Federal awards.
- Infrastructure, at a minimum, includes the structures, facilities, and equipment for:
- Buildings and real property
- Water systems, including drinking water and wastewater systems
- Dams, ports, harbors, and other maritime facilities
- Roads, highways, and bridges
- Public transportation
- Intercity passenger and freight railroads
- Electrical transmission facilities and systems
- Utilities and broadband infrastructure
- Energy generation, transport, and distribution (including EV charging)
What is not “infrastructure”?
- Non-infrastructure expenditures (e.g., services, labor)
- Projects that do not “serve a public function” (e.g., private homes for personal use)
- Temporary items removed before project completion (e.g., scaffolding)
- Equipment and furnishings that are not an integral part of the infrastructure project (e.g., chairs, desks, laptops)
Covered Domestic Products under BABA
The product consists wholly or predominately (50%+) of iron or steel or a combination. All manufacturing processes from initial melting through coatings must occur in the US. This is consistent with American Iron and Steel requirements for EPA’s SRF and WIFIA programs.
These products are processed into a specific shape or form before it is brought to the worksite and 55% or greater of the total cost of components must be produced in the US. This includes products that have historically been a challenge to source domestically (e.g., pumps, electronic controls, solar panels, EV chargers).
All manufacturing process for the construction material must occur in the US. This varies slightly by material. It excludes iron/steel products, manufactured products, cement & cementitious materials, aggregates (e.g., stone, sand, or gravel, aggregate binding agents/additives).
| Construction Material | “Produced in the US” means all manufacturing processes occurred in the US: |
| Non-ferrous metals | From initial smelting or melting through final shaping, coating, and assembly |
| Plastic and polymer-based products | From initial combination of constituent plastic or polymer-based inputs, or, where applicable, constituent composite materials, until the item is in its final form |
| Glass | From initial batching and melting of raw materials through annealing, cooling, and cutting |
| Fiber optic cable | From the initial ribboning (if applicable), through buffering, fiver stranding and jacketing |
| Optical fiber | From the initial preform fabrication stage through the completion of the draw |
| Lumber | From initial debarking through treatment and planning |
| Drywall | From initial blending of mined or synthetic gypsum plaster and additives through cutting and drying of sandwiched panels |
| Engineered wood | From the initial combination of consituent materials until the wood product is in its final form |
Available BABA Waivers
BABA gives EPA the authority issue a waiver in certain, limited circumstances. Waivers are used as a compliance mechanism on projects where BABA applies and to identify market gaps for domestic manufacturers. Wherever possible, waivers should be used as a tool to transition to domestic supply. Recipients should make every effort to find and use domestic items before resorting to a waiver.
Small Project General Applicability Waiver
The Small Project General Applicability Waiver is critical to reduce the administrative burden to potential assistance recipients, including predominantly small and disadvantaged communities, where the costs of compliance with Build America, Buy America could significantly negate the benefits of the smallest grants and projects. This is a general applicability waiver of BABA requirements for small projects, where assistance agreements or subawards under assistance agreements are less than $250,000.
De Minimus General Applicability Waiver
Due to the critical need to reduce the administrative burden for recipients and agencies and to ensure recipients can effectively carry out the EPA funded activity in a timely manner, it is in the public interest to waive Build America, Buy America requirements for products used in and incorporated into a project that cumulatively comprise no more than five percent of the total project cost with the De Minimus General Applicability Waiver.
Minor (Ferrous) Components of Iron and Steel Products General Applicability Waiver
The Build America, Buy America Act requires that the iron and steel used in a product is melted and/or poured in the United States and all subsequent operations occur domestically. The cost of the minor components of iron and steel products tend to be very small. Without the waiver, small, miscellaneous iron and steel components could prevent a manufacturer from providing critical infrastructure products that otherwise could be made with majority domestic iron and steel. This waiver would allow manufacturers of iron and steel products to utilize a small portion (up to five percent by product material cost) of non-domestic or unknown origin iron and steel minor components within their otherwise domestically manufactured iron and steel products.
Clean Ports Program General Applicability Public Interest Waiver
The waiver applies to certain Clean Ports Program grantee expenditures for zero emission (ZE) mobile port equipment that meets each of the following criteria:
- the contracted order date for the equipment is on or before December 31, 2027;
- the contracted delivery date for the equipment is on or before December 31, 2028;
- and the equipment is delivered no later than July 1, 2029.
- NOTE: yard trucks and ship-to-shore cranes have different timelines than other equipment covered by the domestic content waiver provision. See details in the 55 Percent Domestic Content Waiver Provision section of the waiver.
55% Domestic Content Waiver Provision
The waiver allows Clean Ports Program grantees to purchase certain types of zero-emissions mobile port equipment that does not meet the 55% domestic content BABA requirement. This equipment must still be manufactured in the United States.
The following zero-emission mobile port equipment is covered by the 55% domestic content waiver provision described above:
- Zero emission cranes:
- Rubber tire gantry cranes
- Mobile harbor cranes
- Rail-mounted gantry cranes
- Automatic stacking cranes
- Ship-to-shore cranes (note that the domestic content waiver provision for this equipment is more limited than others; please see for more details 55 Percent Domestic Content Waiver Provision section of the waiver)
- Other zero emission cargo handling equipment (with the exception of equipment types listed below that are excluded from this waiver provision):
- Bulk cargo handling equipment
- Containerized cargo handling equipment
- Straddle Carriers
- Mobile shore power cable management systems
- Zero emission class 3-8 vehicles:
- Drayage trucks
- Yard trucks (also known as terminal tractors, yard tractors, or yard hostlers)
- Zero emission locomotives:
- Switch locomotives
- Zero emission vessels:
- Tugboats
- Push boats
- Pull boats
- Ferries
The zero-emission cargo handling equipment that are not covered by the waiver of 55% domestic content requirement are:
- Battery electric (BE) heavy forklifts 36,000lbs 24” & 48” Load Center (L.C.)
- BE heavy forklifts 55,000lbs 48” L.C.
- BE heavy forklifts 65,000lbs 48” L.C.
- BE heavy forklifts 92,500lbs 48” L.C.
- BE heavy forklifts 100,000lbs 48” L.C.
- BE loaded top-pick container handler (up to 6-high-stack and 90,000lbs)
- BE empty side-pick container handler (up to 8-high stack and 20,000lbs)
- BE reach stacker (up to 5-high stack and 99,000lbs)
Supplemental De Minimis Waiver Provision
The EPA’s existing public interest De Minimis waiver allows up to 5 percent of total project cost to be used on items that are not required to demonstrate compliance with BABA requirements; this existing 5 percent waiver will remain applicable to the Clean Ports Program. Through this notice, the EPA is waiving BABA requirements for an additional 15 percent of the total material costs associated with zero emission mobile port equipment, that recipients may only use to purchase zero emission mobile port equipment (other than cranes) that do not meet domestic manufacturing requirements in this waiver (i.e., are not domestically assembled and do not meet domestic content requirements for manufactured products.
Questions?
For questions regarding the Build America, Buy America Act, contact BABA-OW@epa.gov.
For questions regarding the BABA waivers, contact EPA_BABA_Waiver@epa.gov.