Construction Program Guide

Buy America

The FHWA's policy for Buy America provides for:

• a domestic manufacturing process for any steel or iron products (including protective coatings) that are permanently incorporated in a Federal-aid highway contract
• alternate bid provisions
• minimal usage criteria for non-domestic products
• a waiver process based on public interest or the availability of domestic products

Authority/Legal Basis

1. Laws

   • The FHWA's statutory provisions for Buy America are found in Title 23 United States Code, Section 313.

2. Regulations

   • Title 23 C.F.R. 635.410 provides the FHWA's regulatory policy regarding Buy America. (Note: this regulation was last updated on November 25, 1983, and does not include revised stewardship, oversight, and applicability requirements resulting from the 1991 ISTEA and the 1998 TEA-21. See the discussion in the FHWA Contract Administration Core Curriculum Manual for current FHWA policy).

3. Rule Makings / Federal Register Notices

   • July 21, 1993 Final Rule Making implements the requirements of ISTEA Section 1041(a) that provide for a revision of FHWA's Buy America requirements to include the application of a coating for steel or iron products.

4. Orders

   • None

5. Policy

   • The FHWA Contract Administration Core Curriculum Manual summarizes the FHWA's policies and provides general guidance for Buy America provisions.
   • Policy Memoranda
     • Headquarters memorandum dated July 6, 1989; Subject: Buy America Requirements provides guidance concerning Buy America certifications, the calculation of a deminimus amount of foreign steel, and the relation of NAFTA to the FHWA's Buy America program.
     • Headquarters memorandum date December 22, 1997; Subject: Buy America Policy Response discusses the application of Buy America to manufactured products.
     • Headquarters memorandum dated October 4, 2005; Subject: Sense of Congress Concerning Buy America provides a legal opinion regarding the Sense of Congress in SAFETEA-LU Section 1928. The opinion reaffirms the FHWA's traditional policy of only applying Buy America requirements on a contract basis.
     • Headquarters memorandum dated March 13, 2008, Subject: "Revised Policy for the Approval of Buy America Waivers" provides for changes in FHWA's review of Buy America waiver requests and requires all waiver requests to be submitted to HIPA-1 for review
   • Rule Makings / Federal Register Notices
     • November 25, 1983 Final Rule Making Buy America Requirements includes the preamble and regulatory narrative that form the basis for the FHWA's current Buy America regulatory policy.
     • February 9, 1994 Notice of a nationwide waiver of Buy America for ferryboat equipment and machinery is the Federal Register notice which lists specific requirements for this nation-wide waiver.
     • March 24, 1995 Notice of a nationwide waiver of Buy America for pig iron and processed, pelletized, and reduced iron ore is the Federal Register notice which lists specific requirements for this nation-wide waiver.

Guidance/Information

1. General Information
   • FHWA Contract Administration Core Curriculum Manual
   • Buy America Non-Regulatory Supplement Guidance provides supplemental information regarding Buy America certifications and the FHWA's Buy America waiver process. (See: No. 2 and No. 4)
   • Quick facts about Buy America provides an abbreviated list of Buy America requirements.
   • Buy America Waivers Approved by the FHWA
   • Notice of Buy America Waiver Request
2. Training
   • FHWA Contract Administration Core Curriculum (Course Description)