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 any project funded under Title 23
• alternate bid provisions
• minimal usage criteria for non-domestic products
• a waiver process based on public interest or the availability of domestic products

On Tuesday, February 12, 2010, The United States Trade Representative's Office announced a tentative agreement between the United States and Canada. The Agreement identifies specific programs for coverage, however, it does not include the highway program. Thus, all Federal-aid highway projects, including those funded under the Recovery Act (excluding TIGER grants, which are subject to section 1605 of the Recovery Act), administered by FHWA will continue to be subject to the Buy America provisions in Title 23 U.S.C. 313.

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

   • 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.

   • 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.

   • 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.

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 December 21, 2012 provides a clarification of FHWA's position regarding the application of Buy America requirements to manufactured products.
     • Headquarters letter to AASHTO dated December 20, 2012 providing an interpretation regarding MAP-21 S. 1518 and the application of Buy America requirements to any contract eligible for Federal highway funding within the scope of an applicable NEPA finding, determination or decision.
     • 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
     • Headquarters memorandum dated June 21, 2011, Subject: "Buy America Interpretation" provides an interpretation of coverage for permanently incorporated products versus temporary products

Guidance/Information

1. General Information
   • Questions and Answers
     • MAP-21 S. 1518 Buy America Questions and Answers
     • Buy America Questions and Answers No. 43, 44 and 45
     • All Buy America Questions and Answers
   • 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)