b'LEGISLATIVE REPORTLEGISLATIVE Buy America RequirementsMay Accompany Federal GrantsED WELCH // PVA LEGISLATIVE DIRECTORP VA vessel operators frequently take ad- Trump and Biden administrations have tough- In addition, the Buy America provision has vantageoffederalgrantstoconstructened the requirements. Most recently, the Buildbeen expanded to cover construction mate-new vessels or terminals. The primaryAmerican, Buy American Act (BABAA), wasrials. This term includes non-ferrous metals agencies providing these grants are the Feder- included in the massive Infrastructure Invest- (aluminum,forinstance),plasticsandpoly-al Highway Administration (FHWA) and thement and Jobs Act (IIJA) (Public Law 117-58)mer-basedproducts(includingpolyvinyl-FederalTransitAdministration(FTA).Butsigned into law by President Biden on Nov. 15,chloride,compositebuildingmaterials,and these grants come with certain strings attached,2021. BABAA does not supersede the previouspolymers used in fiber optic cables), and glass including Buy America requirements. With re- Buy America requirements, but rather expands(including optic glass).spect to the U.S. passenger vessel sector, Buyupon them.America requirements most commonly comeOn limited occasions, the federal agency pro-into play when an operator receives grant fundsNot too long ago, the Buy America require- viding the funds may provide a waiver of the to help finance a ferry vessel or ferry terminal.ment specified that at least 50 percent of iron,Buy America requirements. Waivers are hard steel, and certain manufactured products musttocomeby.Thethreetypesofwaiversare Buy America requirements in one form or an- be produced in America. The 50 percent re- (1) inconsistent with the public interest; (2) other have been found in various federal lawsquirementhasbeenratchetedup.Nowthetheproductsormaterialsarenotproduced for many years. In the past decade, both therequirement has been increased to 70 percent. in the U.S. in sufficient and reasonably avail-ablequantitiesorofasatisfactoryquality (non-availabilitywaiver;and(3)application of the Buy America requirement will increase the cost of the overall project by more than 25 percent (unreasonable cost waiver).INNOVATIVE Both FTA and FHWA have their own regula-UNIQUEtions regarding the Buy America requirements. While similar, they are not identical.PROVEN One might assert that the U.S. cabotage lawsthe Jones Act and the Passenger Vessel Services Actcould be considered Buy America stat-utes.Theyreservethecoastwisecarriageof freight and passengers (that is, from one U.S. port to another) to vessels built in America. However, they address only the construction of the vessel as a whole and do not specify that theconstructionmaterialsorvesselcompo-nents must be produced in the United States. Nor does their applicability depend upon fed-eral funding for the vessel; they cover any ves-sel, publicly or privately owned, engaged in the coastwise trades. In fact, on Jan. 25, 2021, just days after he was inaugurated, President Biden issued Executive Order 14005 entitled Ensur-ing the Future Is Made in All of America by All of Americas Workers. In it, he defined the term Made in America Laws to include laws requiringdomesticpreferenceformaritime transport, including the Merchant Marine Act of 1920 (Public Law 66-261), also known as the Jones Act.Bellingham, WA | 360.647.7602Sales@allamericanmarine.comFOGHORN 24'