Construction Program Guide

Convict Produced Material / Convict Labor

FHWA policy prohibits the use of convict labor and material for projects located on Federal-aid highways.

Authority / Legal Basis

1. Laws

   • Title 23 U.S.C. 114(b) - "Convict Labor and Convict Produced Materials" provides the statutory basis for the convict produced material and convict labor prohibitions. The prohibition is limited by statute to projects on a "Federal-aid system". However, since the 1991 ISTEA modified the definition of a "Federal-aid system" without changing the language in Section 114, the applicability of the prohibition has been interpreted by FHWA to mean projects located on Federal-aid highways. See Mr. Schimmoller's May 9, 1996 memorandum and Mr. Baccus's May 14, 1997 legal opinion.

2. Regulations

   • Title 23 C.F.R. 635.117(a) provides the FHWA's regulatory policy for convict labor.
   • Title 23 C.F.R. 635.417 provides the FHWA's regulatory policy for convict produced materials. Such materials are prohibited from use on the Federal-aid highway system, except that "Materials produced after July 1, 1991, by convict labor may only be incorporated in a Federal-aid highway construction project if such materials have been:
     1. Produced by convicts who are on parole, supervised release, or probation from a prison or
     2. Produced in a qualified prison facility and the cumulative annual production amount of such materials for use in Federal-aid highway construction does not exceed the amount of such materials produced in such facility for use in Federal-aid highway construction during the 12-month period ending July 1, 1987."

3. Orders

   • None

4. Policy

   • Policy Memoranda

     • Mr. Baccus's May 14, 1997 legal opinion Regarding the "Applicability of Convict Labor"
     • Mr. Schimmoller's May 9, 1996 memorandum "Applicability of Convict Labor Prohibition to Transportation Enhancement Projects"
     • Headquarters memorandum dated May 8, 1985, Subject: Procurement of Signing Material
     • Headquarters memorandum dated February 5, 1988, Subject: Convict Labor and Convict Produced Material

5. Other

   FHWA HQ polled the Division Offices to determine the types, quantities, and costs of convict-produced materials produced in each State for the 12-month period ending July 1, 1987. The allowable material types and quantities the results of the survey are in the table below. States not listed did not incorporate convict produced materials into its Federal-aid highway construction products during that period. By statute, each state listed is limited to the convict-produced materials and quantities shown:

   State	Material	Quantity	Cost
   California	Aluminum Tear Drop Assemblies	3,500 ea	$2,800
   	Aluminum Guide Plates	5,000 ea	$5,750
   	Type K Markers	2,200 ea	$7,786
   		Total	$16,536
   District Of Columbia	Sign Material	Not stated	$325,000
   Iowa	Signs	21,408 sq.ft.	$152,384
   Michigan	Signs	335 ea	$9,752
   Missouri	Signs	42,829 ea	$506,573
   North Carolina	Signs	8,938 ea	$850,652
   	Pavement Markings	25,900 gal.	$116,298
   		Total	$966,950
   North Dakota	Signs - High Intensity	62,784 sq.ft.	$373,370
   	Signs - Engineering Grade	26,664 sq.ft.	$83,256
   	Totals	89,448 sq.ft.	$456,625
   Rhode Island	Signing Material	4,851 ea	$195,521
   Utah	Signs	12,000 sq.ft.	$66,000
   Vermont	Posts	32,202 ea	Not Stated
   	Offset Blocks	11,149 ea
   	Ties	7,911 ea
   	Lumber	76,604 bd.ft.
   	Signs	43,572 sq.ft.
   Virginia	Sign Blanks	45,977 sq.ft.	$92,413
   Washington	Signs	46,000 sq.ft.	$184,000

Guidance

1. General Information

   • The Section II.A.1.b of the FHWA Contract Administration Core Curriculum Manual summarizes the FHWA's policies and provides general guidance for the convict labor prohibition.
   • The Section II.C.5.a of the FHWA Contract Administration Core Curriculum Manual summarizes the FHWA's policies and provides general guidance for the convict produced materials prohibition.

2. Training

   • FHWA Contract Administration Core Curriculum (Course Description)