[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR635.410]

[Page 191-192]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 635--CONSTRUCTION AND MAINTENANCE--Table of Contents
 
                Subpart D--General Material Requirements
 
Sec. 635.410  Buy America requirements.

    (a) The provisions of this section shall prevail and be given 
precedence over any requirements of this subpart which are contrary to 
this section. However, nothing in this section shall be construed to be 
contrary to the requirements of Sec. 635.409(a) of this subpart.
    (b) No Federal-aid highway construction project is to be authorized 
for advertisement or otherwise authorized to proceed unless at least one 
of the following requirements is met:
    (1) The project either: (i) Includes no permanently incorporated 
steel or iron materials, or (ii) if steel or iron materials are to be 
used, all manufacturing processes, including application of a coating, 
for these materials must occur in the United States. Coating includes 
all processes which protect or enhance the value of the material to 
which the coating is applied.
    (2) The State has standard contract provisions that require the use 
of domestic materials and products, including steel and iron materials, 
to the same or greater extent as the provisions set forth in this 
section.
    (3) The State elects to include alternate bid provisions for foreign 
and domestic steel and iron materials which comply with the following 
requirements. Any procedure for obtaining alternate bids based on 
furnishing foreign steel and iron materials which is acceptable to the 
Division Administrator may be used. The contract provisions must (i) 
require all bidders to submit a bid based on furnishing domestic steel 
and iron materials, and (ii) clearly state that the contract will be 
awarded to the bidder who submits the lowest total bid based on 
furnishing domestic steel and iron materials unless such total bid 
exceeds the lowest total bid based on furnishing foreign steel and iron 
materials by more than 25 percent.
    (4) When steel and iron materials are used in a project, the 
requirements of this section do not prevent a minimal use of foreign 
steel and iron materials, if the cost of such materials used does not 
exceed one-tenth of one percent (0.1 percent) of the total contract cost 
or $2,500, whichever is greater. For purposes of this paragraph, the 
cost is that shown to be the value of the steel and iron products as 
they are delivered to the project.
    (c)(1) A State may request a waiver of the provisions of this 
section if;
    (i) The application of those provisions would be inconsistent with 
the public interest; or
    (ii) Steel and iron materials/products are not produced in the 
United States in sufficient and reasonably available quantities which 
are of a satisfactory quality.
    (2) A request for waiver, accompanied by supporting information, 
must be submitted in writing to the Regional Federal Highway 
Administrator (RFHWA) through the FHWA Division Administrator. A request 
must be submitted sufficiently in advance of the need for the waiver in 
order to allow time for proper review and action on the request. The 
RFHWA will have approval authority on the request.
    (3) Requests for waivers may be made for specific projects, or for 
certain materials or products in specific geographic areas, or for 
combinations of both, depending on the circumstances.
    (4) The denial of the request by the RFHWA may be appealed by the 
State to the Federal Highway Administrator (Administrator), whose action 
on the request shall be considered administratively final.
    (5) A request for a waiver which involves nationwide public interest 
or availability issues or more than one FHWA region may be submitted by 
the RFHWA to the Administrator for action.
    (6) A request for waiver and an appeal from a denial of a request 
must include facts and justification to support the granting of the 
waiver. The FHWA response to a request or appeal will be in writing and 
made available to the public upon request. Any request for a nationwide 
waiver and FHWA's action on such a request may be published in the 
Federal Register for public comment.
    (7) In determining whether the waivers described in paragraph (c)(1) 
of this section will be granted, the FHWA will

[[Page 192]]

consider all appropriate factors including, but not limited to, cost, 
administrative burden, and delay that would be imposed if the provision 
were not waived.
    (d) Standard State and Federal-aid contract procedures may be used 
to assure compliance with the requirements of this section.

[48 FR 53104, Nov. 25, 1983, as amended at 49 FR 18821, May 3, 1984; 58 
FR 38975, July 21, 1993]

    Editorial Note: For a waiver document affecting Sec. 635.410, see 60 
FR 15478, Mar. 24, 1995.