1. Understanding and Navigating the Buy America Act

2. What is the Buy America Act?
The Buy America Act prohibits the use of Federal highway safety grant funds to purchase steel, iron or manufactured products, unless these products are produced in the United States. 23 USC 313

3. History 1933 – First domestic preference legislation
Was intended to be an interim measure
Has been a form of the Buy America (or American) act around since Went through clarification exercises in the 40-60’s.
In 1933, at perhaps the lowest point of the Great Depression, when profits were low and opportunities for economic growth bleak, President Hoover and the U.S. Congress enacted the Buy American Act (BAA), federal legislation that required the U.S. government to prefer American products in its purchases.
Original measure was intended to be “an interim measure imposed to alleviate the impact of Government expenditures on the nation's balance of international payments”. 81 years later we are still dealing with domestic preference requirements.
There has not been much come from NHTSA regarding Buy America requirements until…the latest…

4. What’s the latest?
The guidance document is available for download on the SMSA website
Issued Jan. 23, 2014
Applies to steel, iron and all manufactured products
CURRENTLY No minimum $ threshold
Transit threshold is $100K
FHWA only pertains to steel and iron (not manufactured)
Purchases prior to Jan 23rd not being reviewed
Ok for any US manufactured or assembled product
Pertains to expenditures under 402 and 405

5. What does it apply to? Any product manufactured Pens Pencils Paper
Giveaways
Everything!

6. Can I just buy it? Yes, if you’ve confirmed US made or;
There is a waiver in place allowing purchase
Document. document.
document.
Buy America requires you or your grantees to determine whether your item is USA made. If it is then you need to document that the item is manufactured or assembled in the USA. You can buy it right away.
Requirement applies to everything manufactured or assembled – pens, pencils, paper, office supplies…everything
If not assembled here then BAA outlines the requirements for states to request a waiver from NHTSA. Expect 6 months…
Photo of packaging or other documentation indicating US Made OR ASSEMBLED.

9. Oregon Flow chart for the process Procedure for purchases
Internal and external (grantees)
Procedure for purchases
Internal and external
Procedure for waiver requests
Grant statement
This is a bit about what Oregon has done. I’ve got a sheet of paper here I’ll pass around. Sign up if you want me to you our documents when I get back.

10. USA purchases Documentation Letter or email from vendor/manufacturer
Phone log
Screen print of website
Quote from manufacturer
Photo of the “Made in USA” label
This is the documentation we have determined is acceptable

11. Grantees Purchase Determine if USA made Work with HSO on waiver
Provide justification for waiver
Make expectations clear
If grantee tells you they need a waiver:
Work with HSO to determine if waiver needed
Grantee provides justification and documentation for waiver
Grantee determines and takes responsibility if USA made.
If it doesn’t fly during program review then grantee is responsible for funds.

12. BUY AMERICA ACT PROCESS CHART
Recommendations
Establish a process and/or procedure for both internal staff and grantees
Within organization purchase
Set up a list of most purchased items
Insure staff are trained on documentation requirements
Have a point person who tracks purchases
BUY AMERICA ACT PROCESS CHART
(NHTSA Funds)
Exit
process Y N
Is it on the Buy America Act approved list?
Is it made or assembled in the U.S.A.?
Is there a U.S.A. made alternative?
Could you use match or non-NHTSA funds?
Is there a foreign made alternative that meets NHTSA’s waiver guidelines of cost, quality & public interest?
Item
Requested N N N N Y
Does NHTSA
approve?
Use other funds or don’t buy it
Waiver
process Y Y Y N Y
Document it
Buy
It*
Update BAA approved list
* Follow all state purchasing rules.

13. Waiver Criteria Product purchase may be waived by NHTSA if:
Inconsistent with the public interest (public interest waiver)
Product not produced in the US (non-availability waiver)
Use would increase overall cost by more than 25% (cost waiver)
Here’s the criteria for waiver requests.
This doesn’t mean you can go out and purchase if it meets these criteria. There has to be a waiver requested and approved by NHTSA.

14. NHTSA Waiver Submission
Submit request to NHTSA Region office
Identification of the specific item
Detailed justification that use of funds is warranted
Statement about whether public interest, non-availability or cost waiver
Supporting information that details State’s steps to determine availability of the item in the US or that cost would increase >25%

15. Pending/Current Waivers
10/16/14 Michigan
Suzuki TU-250
Purchase of motorcycle vests
Authorizes use of 402 and 405 funds
Ends 9/30/15
4/1/14, Florida
Purchase of motorcycle helmets
Only for use of Section 403 (R&D)
10/7/13, Wisconsin
Can-Am Spyder
Michigan waiver is for motorcycles, motorcycle vests, projector, copier, etc. It only authorizes use of Section 204 or 205 funds. Does not include SAFETEA-LU Section 2010 funds.
Florida waiver was for purchase of helmets under their demonstration grant with NHTSA. It is only good for FL and only for use of Section 403 Funds
Wisconsin waiver was for purchase of Can-Am Spyder and specifies Section It is only available for one year.
KEEP IN MIND, WAIVERS ARE ONLY GOOD FOR ONE YEAR.

16. Buying Motorcycles US-Manufactured: Michigan waiver H-D Street 500CC
Estimated $6700-$7500/ea
Victory/Indian > 500cc
Lowest MSRP is $12,499
Michigan waiver
Suzuki TU-250’s
Currently these are the only authorized motorcycle expenditures
H-D Street estimated to start production sometime this year.

17. What happens next? Waivers are posted in Federal Register
Waivers are first posted for a 15-day comment period prior to publishing the final decision in the Federal Register
30 days after first posting waiver decision is final unless comments lead NHTSA to pull decision
Florida took six months (per Jeremy)
Michigan took five months (per Chad)
Michigan is currently in the 15-day comment phase. The waiver takes effect 30 days after posting unless comments lead NHTSA to pull the decision.
Waiver is only good for one year. Date will be posted in FR

18. Supplanting?
“replacing routine and/or existing State or local expenditures with the use of Federal grant funds and/or;
using Federal grant funds for costs of activities that constitute general expenses required to carry out the overall responsibilities of State, local, or Federally-recognized Indian tribal governments”
Be really careful if you change revenue streams. It may fix your immediate problem by purchasing motorcycles out of state funds (for example) you may be in trouble in subsequent years. You would need to insure that after a year of purchasing motorcycles of state funds that you don’t change the revenue stream back to federal funds unless you can justify something as non-routine. For example – you may want to consider replacing training bikes that were carbureted to fuel injection (which the TU is). A justification could be that fuel injection reduces maintenance costs. Check with your NHTSA Regional Office prior to any purchase to insure you are in compliance with their requirements. Get it in writing.

19. Who has a waiver request pending?

20. Questions?