Buy American Provision
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:
|
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.
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.
|
7 CFR 210.21(d)(6) 7 CFR 220.16(d)(6) |
July 1, 2024 |
Compliance with and Enforcement of the Buy American Provision in the National School Lunch Program
