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Buy American Provision

Buy American Provisions Related to the Final Rule Titled, Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans

Buy American Exceptions Tracking Standard Form

The final rule is effective on July 1, 2024; some provisions have phased-in implementation dates. The following table compares previous requirements with the updated requirements for each provision.

Provision Previous Requirement Updated Requirement Regulations Impacted Implementation Date
Limited Exceptions to the Buy American Requirement Through policy guidance, USDA detailed two limited exceptions for price and availability that school food authorities could use to purchase non- domestic items under the requirement that school food authorities purchase domestic products to the maximum extent practicable.

USDA codified in regulations the two limited exceptions when non-domestic foods may be purchased by school food authorities.

USDA also added to the first exception the option to use the 48 CFR 25.104 Nonavailable articles list, as a list of excepted items.

The final rule codifies the two limited exceptions as follows:

  1. The product is listed on the Federal Acquisitions Regulations Nonavailable articles list found at 48 CFR 25.104 and/or is not produced or manufactured in the U.S. in sufficient and reasonably available quantities of a satisfactory quality; or
  2. Competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product.

7 CFR 210.21(d)(5)

7 CFR 220.16(d)(5)

July 1, 2024
Cap on Non-Domestic Food Purchases USDA had not previously defined a dollar amount or threshold limiting commercial non- domestic food purchases.

USDA established in regulations a new threshold for school food authorities that use exceptions. The limit on the percent of total commercial food costs from non- domestic foods will be phased in over 7 school years.

  • Beginning in SY 2025-2026, the non- domestic food purchases cap will be 10 percent.
  • Beginning in SY 2028-2029, the non- domestic food purchases cap will be 8 percent.
  • Beginning in SY 2031-2032, the non- domestic food purchases cap will be 5 percent.

This phased-in approach will allow schools to gradually adjust to the new requirement and will allow USDA to continue to collect data on use of the Buy American exceptions. Items listed on the Federal Acquisitions Regulations Nonavailable articles list must be counted toward the cap on non-domestic purchases when it goes into effect.

7 CFR 210.21(d)(5)

7 CFR 220.16(d)(5)

July 1, 2025
Exception Documentation and Reporting Requirements Through policy guidance, USDA instructed school food authorities to maintain documentation justifying the use of exceptions. USDA codified in regulations the requirement for school food authorities to maintain documentation to demonstrate the use of exceptions. Items found on the Federal Acquisitions Regulations Nonavailable articles list are exempt from the documentation requirement, but these items must be counted toward the cap on non-domestic purchases when that goes into effect.

7 CFR 210.21(d)(5)(iii)

7 CFR 220.16(d)(5)(iii)

July 1, 2024
Procurement Procedures Through policy guidance, USDA instructed school food authorities to include Buy American provisions in documented procurement procedures, solicitations, or contracts. USDA codified in Program regulations the requirement for school food authorities to include the Buy American provisions in all procurement procedures, solicitations, and contracts. Inclusion of this language in procurement materials is already widely implemented by school food authorities and is codified through this rulemaking.

7 CFR 210.21(d)(3)

7 CFR 220.16(d)(3)

July 1, 2024
Definition of “Substantially” Through policy guidance, USDA defined the term “substantially”.

USDA codified the definition of substantially that was previously provided in guidance.

The definition is as follows: “Substantially using agriculture commodities that are produced in the United States” means over 51 percent of a food product must consist of agricultural commodities that were grown domestically.

7 CFR 210.21(d)(1)(ii)

7 CFR 220.16(d)(1)(ii)

July 1, 2024
Clarification of Requirements for Harvested, Farmed, and Wild Caught Fish The statute and USDA guidance outlined the applicability of Buy American requirements to fish or fish products, but Program regulations did not previously include any specific requirements or information on the Buy American provision’s applicability to fish.

USDA codified in Program regulations, with no changes from current statutory requirements or policy guidance, language that addresses how Buy American requirements apply to fish and fish products.

  • Farmed fish must be harvested within the United States or any territory or possession of the United States.
  • Wild caught fish must be harvested within the Exclusive Economic Zone of the United States or by a United States flagged vessel.

7 CFR 210.21(d)(6)

7 CFR 220.16(d)(6)

July 1, 2024

 

Buy American Fact Sheet

Compliance with and Enforcement of the Buy American Provision in the National School Lunch Program

USDA Nondiscrimination Statement

In accordance with federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, this institution is prohibited from discriminating on the basis of race, color, national origin, sex (including gender identity and sexual orientation), disability, age, or reprisal or retaliation for prior civil rights activity.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (e.g., Braille, large print, audiotape, American Sign Language), should contact the responsible state or local agency that administers the program or USDA’s TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339.

To file a program discrimination complaint, a Complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form which can be obtained online at: https://www.usda.gov/sites/default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant’s name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

  1. mail:
    U.S. Department of Agriculture
    Office of the Assistant Secretary for Civil Rights
    1400 Independence Avenue, SW
    Washington, D.C. 20250-9410; or
  2. fax:
    (833) 256-1665 or (202) 690-7442; or
  3. email:
    Program.Intake@usda.gov

This institution is an equal opportunity provider.

Click here for Nondiscrimination Statement translations.

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