Buy America Requirements for Federally Funded Rail Projects

Abstract

This Legal Research Digest evaluates and analyzes the requirements of four existing Buy America programs applicable to passenger and freight rail systems, each of which present different regulatory and statutory requirements: Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Federal Highway Administration (FHWA), and Amtrak. The digest deals with this topic by addressing similarities and differences among the various programs and their applicability to freight and passenger rail environments. In this analysis, “passenger rail” encompasses high-speed, intercity passenger and commuter rail. The analysis also addresses recent agency changes and policy interpretations, including application of waivers. A critical concern involves those projects that are funded through multiple federal funding sources, potentially subject to different Buy America requirements. The digest presents strategies for resolving multiple, often confusing components. Buy America provisions have been in existence since the 1933 Buy American Act (BAA), applicable to the procurement of goods by federal and state government agencies applying federal grants. FRA grant funds were not historically subject to significant domestic preferences or Buy America requirements; however, that dispensation changed in 2008 when Congress enacted a Buy America provision applicable to FRA grants under the High-Speed Intercity Passenger Rail (HSIPR) program. In addition, since 1978, FRA has also been responsible for administering the Amtrak Buy America provision applicable to procurements by Amtrak with funds from its capital grant. To help clarify and understand the various applicable Buy America provisions, this digest discusses the legislative history pertaining to Buy America, the applicable federal regulations, and how these regulations have been applied to rail system improvements using federal grants. The author provides guidance that rail counsel will find useful as it pertains to rail-related construction and equipment purchases in conformance with applicable federal regulations.