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THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234 Office of P-20 Education Policy |
Buy American Requirement
School Food Authorities (SFAs) participating in the National School Lunch Program (NSLP) and/or School Breakfast Program (SBP) must follow the Buy American Provision found in Program regulations 7 CFR 210.21(d) and 7 CFR 220.16(d), respectively.
The Buy American provision requires SFAs to purchase, to the maximum extent practicable, domestic commodities or products which are defined as agricultural commodities that are produced in the United States (U.S.) and food products that are processed in the U.S. substantially using agricultural commodities produced in the U.S.
- “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. Therefore, over 51% of the final processed product (by weight or volume) must consist of agricultural commodities that were grown domestically.
Buy American Exceptions
There are two limited exceptions when non-domestic foods may be purchased:
- 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
- Competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product.
SFAs must maintain documentation to demonstrate the acceptable use of the 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 as described below.
Cap on Non-Domestic Food Purchases
The recently published final rule, Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans (89 FR 31962, April 25, 2024), established in regulations a new threshold for SFAs that use the Buy American exceptions described above.
The limit on the percent of total commercial food costs from non- domestic foods will be phased in over the next seven 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.
All non-domestic food items purchased, including items listed on the Federal Acquisitions Regulations Nonavailable articles list, must be counted toward the cap on non-domestic purchases.
Tracking Non-Domestic Food Purchases
SFAs must track and demonstrate compliance with the Buy American provision and cap on non-domestic food purchases. To facilitate this process, a standard excel tracking form can be found here: Buy American Exceptions Tracking Standard Form.
This tool assists SFAs in documenting the use of the limited Buy American exceptions and will calculate the percent of total commercial food costs from non- domestic foods.
Temporary Accommodation for SY 2025-2026
USDA has provided an accommodation provision in Program regulations to provide the New York State Education Department (SED) the ability to approve temporary relief for SFAs that demonstrate they cannot meet the cap on non-domestic food purchases established in Program regulations.
For the 2025-2026 School Year, the temporary accommodation will allow SFAs to exceed the 10 percent cap on non-domestic food purchases provided the SFA demonstrates to SED that they are unable to meet the threshold requirement. SFAs may only seek a temporary accommodation for non-domestic purchases that qualify under one or more of the allowed Buy American exceptions.
SFAs approved for the accommodation are expected to work with SED through on-going technical assistance and training while making progress toward compliance with the Buy American requirements.
Requesting a Temporary Accommodation from the Buy American Threshold Requirement
To request an accommodation for the 2025-2026 School Year, SFAs must complete the SFA Accommodation Plan SY 2025-2026 and email it to CN@nysed.gov.
A SED Child Nutrition Program Representative will review complete requests and may approve these requests and provide technical assistance, as necessary.
