[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1726 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 1726
To amend chapter 83 of title 41, United States Code (popularly referred
to as the Buy American Act) and certain other laws with respect to
certain waivers under those laws, to provide greater transparency
regarding exceptions to domestic sourcing requirements, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 20, 2021
Mr. Murphy introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend chapter 83 of title 41, United States Code (popularly referred
to as the Buy American Act) and certain other laws with respect to
certain waivers under those laws, to provide greater transparency
regarding exceptions to domestic sourcing requirements, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``21st Century Buy American Act''.
SEC. 2. INCREASE OF DOMESTIC CONTENT PERCENTAGE TO 60 PERCENT.
Section 8301 of title 41, United States Code, is amended by adding
at the end the following new paragraph:
``(3) Substantially all.--Articles, materials, or supplies
shall be treated as made substantially all from articles,
materials, or supplies mined, produced, or manufactured in the
United States, if the cost of the domestic components of such
articles, materials, or supplies exceeds 60 percent of the
total cost of all components of such articles, materials, or
supplies.''.
SEC. 3. CRITERIA REQUIRED FOR USE OF OVERSEAS EXCEPTION.
Section 8302 of title 41, United States Code, is amended by adding
at the end the following new subsection:
``(c) Criteria for Use of Overseas Exception.--
``(1) In general.--The exception under subsection (a)(2)(A)
for articles, materials, or supplies to be acquired for use
outside the United States may not be used unless one of the
following criteria is met:
``(A) The articles, materials, or supplies are
needed urgently for national security reasons.
``(B) A cost analysis described in paragraph (2)
demonstrates that the articles, materials, or supplies
to be acquired (if acquired from a firm manufacturing
in the United States) would be more than 50 percent
more expensive for the Federal agency acquiring the
articles, materials, or supplies.
``(2) Cost analysis.--In any case in which articles,
materials, or supplies are to be acquired for use outside the
United States and are not needed urgently for national security
reasons, before entering into a contract an analysis shall be
made of the difference in the cost of acquiring the articles,
materials, or supplies from a firm manufacturing the articles,
materials, or supplies in the United States (including the cost
of shipping) and the cost of acquiring the articles, materials,
or supplies from a firm manufacturing the articles, materials,
or supplies outside the United States (including the cost of
shipping).''.
SEC. 4. CRITERIA REQUIRED FOR USE OF PUBLIC INTEREST EXCEPTION.
(a) Buy American Act.--Section 8302 of title 41, United States
Code, as amended by section 3, is further amended by adding at the end
the following new subsection:
``(d) Criteria for Use of Public Interest Exception.--In
determining whether a public interest exception shall be applied under
subsection (a), the head of a Federal agency shall--
``(1) consider the short-term and long-term effects of
applying such exception on employment within the United States,
taking into account information provided by entities that
manufacture the articles, materials, or supplies concerned in
the United States; and
``(2) determine that preserving or increasing employment
within the United States is consistent with the public
interest.''.
(b) Federal Transit Administration Funds.--Section 5323(j) of title
49, United States Code, is amended by adding at the end the following
new paragraph:
``(14) Criteria for use of public interest waiver.--In
determining whether a public interest waiver shall be issued
under paragraph (2)(A), the Secretary shall--
``(A) consider the short-term and long-term effects
of applying such waiver on employment within the United
States, taking into account information provided by
entities that produce the steel, iron, and goods
concerned in the United States; and
``(B) determine that preserving or increasing
employment within the United States is consistent with
the public interest.''.
(c) Federal Highway Administration Funds.--Section 313 of title 23,
United States Code, is amended by adding at the end the following new
subsection:
``(h) Criteria for Use of Public Interest Finding.--In determining
whether a public interest finding shall be made under subsection
(b)(1), the Secretary shall--
``(1) consider the short-term and long-term effects of
making such finding on employment within the United States,
taking into account information provided by entities that
produce the materials or products concerned in the United
States; and
``(2) determine that preserving or increasing employment
within the United States is consistent with the public
interest.''.
(d) Amtrak Funds.--Section 24305(f) of title 49, United States
Code, is amended by adding at the end the following new paragraph:
``(5) In deciding whether a public interest exemption shall be
issued under paragraph (4)(A)(i), the Secretary shall--
``(A) consider the short-term and long-term effects of
issuing such exemption on employment within the United States,
taking into account information provided by entities that
manufacture the articles, material, or supplies concerned in
the United States; and
``(B) determine that preserving or increasing employment
within the United States is consistent with the public
interest.''.
(e) Federal Railroad Administration High-Speed Rail Program
Funds.--Section 22905(a) of title 49, United States Code, is amended by
adding at the end the following new paragraph:
``(12) In determining whether a public interest waiver shall be
granted under paragraph (2)(A), the Secretary shall--
``(A) consider the short-term and long-term effects of
granting such waiver on employment within the United States,
taking into account information provided by entities that
produce the steel, iron, or goods concerned in the United
States; and
``(B) determine that preserving or increasing employment
within the United States is consistent with the public
interest.''.
(f) Federal Aviation Administration Funds.--Section 50101 of title
49, United States Code, is amended by adding at the end the following
new subsection:
``(d) Criteria for Use of Public Interest Waiver.--In determining
whether a public interest waiver shall be granted under subsection
(b)(1), the Secretary shall--
``(1) consider the short-term and long-term effects of
granting such waiver on employment within the United States,
taking into account information provided by entities that
produce the steel or goods concerned in the United States; and
``(2) determine that preserving or increasing employment
within the United States is consistent with the public
interest.''.
(g) Water Pollution Prevention and Control Grants for Construction
of Treatment Works.--Section 215 of the Federal Water Pollution Control
Act (33 U.S.C. 1295) is amended--
(1) by inserting ``(a) In General.--'' before
``Notwithstanding''; and
(2) by adding at the end the following new subsection:
``(b) Criteria for Use of Public Interest Exception.--In
determining whether a public interest exception shall be applied under
subsection (a), the Administrator shall--
``(1) consider the short-term and long-term effects of
applying such exception on employment within the United States,
taking into account information provided by entities that
manufacture the articles, materials, or supplies concerned in
the United States; and
``(2) determine that preserving or increasing employment
within the United States is consistent with the public
interest.''.
SEC. 5. WAIVER TRANSPARENCY AND STREAMLINING THROUGH THE
BUYAMERICAN.GOV WEBSITE.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Administrator of General Services shall
maintain an internet website with the address BuyAmerican.gov that will
be publicly available and free to access. The website shall include
information on all waivers of and exceptions to Buy American laws that
have been requested, are under consideration, or have been granted by
executive agencies and be designed to enable manufacturers and other
interested parties to easily identify waivers, and shall provide
publicly available contact information for the contracting agencies.
(b) Collection of Information.--The President, in consultation with
the heads of relevant agencies, shall develop a mechanism to collect
information on requests to waive Buy American laws and other domestic
content restrictions, utilizing existing reporting requirements
whenever possible, for purposes of providing early notice to possible
waivers via the website maintained under subsection (a). The heads of
executive agencies shall report to the Administrator as quickly as
possible waivers requested or under consideration and waivers granted
due to the non-availability of procured items or service providers for
purposes of posting such information on the website maintained under
such subsection.
(c) Waiver Transparency and Streamlining.--Not less than 20 days
prior to waiving, under his or her statutory authority, any applicable
Buy American Law, the head of an executive agency shall submit to the
Administrator of General Services a copy of the request and information
available to the executive agency concerning the request. Not later
than 5 days after receiving this information from the head of an
executive agency, the Administrator of General Services shall make
available to the public, by posting on the website maintained under
subsection (a), a copy of the request and information available to the
executive agency concerning the request, and shall allow for informal
public comment on the request for at least 15 days prior to making a
finding based on the request.
(d) Information Available to the Executive Agency Concerning the
Request.--
(1) Requirement.--No requested waiver of an applicable Buy
American Law may be granted if, in contravention of subsection
(c)--
(A) the request was not made available to the
public;
(B) the information available to the executive
agency concerning the request was not made available to
the public; or
(C) no opportunity for public comment concerning
the request was granted.
(2) Scope.--Information made available to the public under
this section concerning the request shall properly and
adequately document and justify the statutory basis cited for
the requested waiver. Such information shall include--
(A) a detailed justification for the use of goods,
products, or materials mined, produced, or manufactured
outside the United States;
(B) for requests citing unreasonable cost as the
statutory basis of the waiver, a comparison of the cost
of the domestic product to the cost of the foreign
product or a comparison of the overall cost of the
project with domestic products to the overall cost of
the project with foreign-origin products or services,
pursuant to the requirements of the applicable Buy
American law, except that publicly available cost
comparison data may be provided in lieu of proprietary
pricing information;
(C) for requests citing availability, quantity, or
quality as the statutory basis for the waiver,
information from a reasonable number of domestic
suppliers concerning a product's availability,
quantity, or quality, documentation of the procurement
official's or assistance recipient's efforts to procure
from domestic sources and relevant excerpts from
project plans, specifications, and permits indicating
the required quantity and quality of the relevant
products;
(D) for requests citing the public interest as the
statutory basis for the waiver, a detailed written
statement, which shall include all appropriate factors,
justifying why the requested waiver is in public
interest; and
(E) a certification that the procurement official
or assistance recipient made a good faith effort to
solicit bids for domestic products supported by terms
included in requests for proposals, contracts, and
communications with the prime contractor.
(e) Comptroller General Report.--Not later than two years after the
date of the enactment of this Act, the Comptroller General of the
United States shall submit to Congress a report describing the
implementation of this section, including recommendations for any
legislation to improve the collection and reporting of information
regarding waivers of and exceptions to Buy American laws.
(f) Definitions.--In this section:
(1) Buy american law.--The term ``Buy American Law'' means
any law, regulation, Executive order, regulation, or rule
relating to Federal contracts or grants that requires or
provides a preference for the purchase or use of goods,
products, or materials mined, produced, or manufactured in the
United States, including--
(A) chapter 83 of title 41, United States Code
(commonly referred to as the ``Buy American Act'');
(B) section 5323(j) of title 49, United States Code
(commonly referred to as the ``Buy America Act'');
(C) section 2533a of title 10, United States Code
(commonly referred to as the ``Berry Amendment'');
(D) section 2533b of title 10, United States Code;
and
(E) section 604 of the American Recovery and
Reinvestment Act of 2009 (6 U.S.C. 453b).
(2) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.
SEC. 6. LOANS AND LOAN GUARANTEES TO DOMESTIC MANUFACTURERS UNDER
DEFENSE PRODUCTION ACT.
(a) Program Authorized.--The President, acting through the
Secretary of Defense, may establish and carry out a program to make or
guarantee loans under title III of the Defense Production Act (50
U.S.C. App. 2091 et seq.) to eligible entities in accordance with this
section.
(b) Eligibility Requirements.--The Secretary of Defense shall
establish eligibility requirements for purposes of the loans or loan
guarantees under this section in order to provide assistance to any
entity that--
(1) is a manufacturer in the United States;
(2) is a firm certified as eligible to apply for adjustment
assistance under section 251(c) of the Trade Act of 1974 (19
U.S.C. 2341(c)); and
(3) meets one of the following criteria:
(A) The entity mines, produces, or manufactures a
nonavailable item.
(B) The entity is the last remaining manufacturer
of an item in the United States, as determined by the
Secretary of Defense, and can prove hardship because of
foreign competition.
(C) The entity is the last remaining manufacturer
of an item in the United States and that item is
considered to be vital for national security purposes
by the Department of Defense or another department or
agency of the United States.
(c) Amount of Loan or Loan Guarantee.--The amount of any loan made
or guaranteed under this section may not exceed $5,000,000 per entity.
(d) Use of Funds.--Each eligible entity receiving a loan or loan
guarantee under this section shall use the funds of the loan made or
guaranteed only for one or more of the following purposes:
(1) Increasing its ability to compete for a Government
contract for a nonavailable item.
(2) Increasing its ability to produce a nonavailable item.
(3) Increasing its capacity to produce items that are vital
to national security.
(e) Application Requirements.--To receive a loan or loan guarantee
under this section, an eligible entity shall submit an application to
the Secretary of Defense at such time, in such manner, and containing
such information as the Secretary may require. At a minimum, the
application shall include a statement regarding the number of direct
full-time domestic jobs expected to be created or retained as a result
of the loan made or guaranteed, but such statement shall not be the
sole factor used in determining the award of the loan or loan
guarantee.
(f) Annual Evaluation of Loan or Loan Guarantee Recipients by
Department of Defense.--The Secretary of Defense each year shall
evaluate recipients of loans or loan guarantees under this section to
determine the proper allocation of loan funds that are loaned or
guaranteed.
(g) Definition of Nonavailable Item.--In this section, the term
``nonavailable item'' means any of the following:
(1) An article, material, or supply--
(A) that has been determined by a Federal agency,
pursuant to chapter 83 of title 41, United States Code
(popularly referred to as the Buy American Act), to not
be mined, produced, or manufactured in the United
States in sufficient and reasonably available
commercial quantities of a satisfactory quality; or
(B) that is listed on the list of nonavailable
articles under subpart 25.104 of the Federal
Acquisition Regulation.
(2) An article or item--
(A) that is described in section 4862 of title 10,
United States Code, as transferred and redesignated by
section 1870(c)(2) of the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021
(Public Law 116-283), and grown, reprocessed, reused,
or produced in the United States; and
(B) satisfactory quality and sufficient quantity of
which cannot be procured as and when needed at United
States market prices, as determined by the Secretary of
Defense or the Secretary of the military department
concerned, pursuant to section 4862(c) of such title.
(3) Compliant specialty metal--
(A) as defined in section 4862 of title 10, United
States Code, as transferred and redesignated by section
1870(c)(2) of the William M. (Mac) Thornberry National
Defense Authorization Act for Fiscal Year 2021 (Public
Law 116-283); and
(B) satisfactory quality and sufficient quantity of
which, and in the required form, cannot be procured as
and when needed, as determined by the Secretary of
Defense or the Secretary of the military department
concerned, pursuant to such section 4862(b).
(4) An item listed in subsection (a) of section 4864 of
title 10, United States Code, as transferred and redesignated
by section 1870(c)(2) of the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021 (Public
Law 116-283), if the Secretary determines, under subsection
(d)(4) of such section, that satisfactory quality of the item
manufactured by an entity that is part of the national
technology and industrial base (as defined in section 4801(1)
of such title, as transferred and redesignated by section
1866(c) of the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021 (Public Law 116-283)) is
not available.
SEC. 7. TECHNICAL AND CLARIFYING AMENDMENT.
Section 8301(1) of title 41, United States Code, is amended by
inserting ``Guam, the Northern Mariana Islands,'' after ``American
Samoa,''.
<all>
21st Century Buy American Act
#1726 | S Congress #117
Policy Area: Government Operations and Politics
Subjects: Administrative law and regulatory proceduresBuy American requirementsCongressional oversightDigital mediaGovernment information and archivesGovernment lending and loan guaranteesGovernment studies and investigationsInfrastructure developmentManufacturingMilitary procurement, research, weapons developmentPublic contracts and procurementPublic participation and lobbyingTransportation costsWater qualityWater use and supply
Last Action: Read twice and referred to the Committee on Homeland Security and Governmental Affairs. (5/20/2021)
Bill Text Source: Congress.gov
Summary and Impacts
Original Text