21st Century Buy American Act

II 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 regard- ing 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 (popu- larly referred to as the Buy American Act) and certain other laws with respect to certain waivers under those laws, to provide greater transparency regarding excep- tions to domestic sourcing requirements, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘21st Century Buy 4 American Act’’. 5 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1726 IS SEC. 2. INCREASE OF DOMESTIC CONTENT PERCENTAGE 1 TO 60 PERCENT. 2 Section 8301 of title 41, United States Code, is 3 amended by adding at the end the following new para- 4 graph: 5 ‘‘(3) SUBSTANTIALLY ALL.—Articles, materials, 6 or supplies shall be treated as made substantially all 7 from articles, materials, or supplies mined, pro- 8 duced, or manufactured in the United States, if the 9 cost of the domestic components of such articles, 10 materials, or supplies exceeds 60 percent of the total 11 cost of all components of such articles, materials, or 12 supplies.’’. 13 SEC. 3. CRITERIA REQUIRED FOR USE OF OVERSEAS EX- 14 CEPTION. 15 Section 8302 of title 41, United States Code, is 16 amended by adding at the end the following new sub- 17 section: 18 ‘‘(c) CRITERIA FOR USE OF OVERSEAS EXCEP- 19 TION.— 20 ‘‘(1) IN GENERAL.—The exception under sub- 21 section (a)(2)(A) for articles, materials, or supplies 22 to be acquired for use outside the United States may 23 not be used unless one of the following criteria is 24 met: 25 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1726 IS ‘‘(A) The articles, materials, or supplies 1 are needed urgently for national security rea- 2 sons. 3 ‘‘(B) A cost analysis described in para- 4 graph (2) demonstrates that the articles, mate- 5 rials, or supplies to be acquired (if acquired 6 from a firm manufacturing in the United 7 States) would be more than 50 percent more 8 expensive for the Federal agency acquiring the 9 articles, materials, or supplies. 10 ‘‘(2) COST ANALYSIS.—In any case in which ar- 11 ticles, materials, or supplies are to be acquired for 12 use outside the United States and are not needed 13 urgently for national security reasons, before enter- 14 ing into a contract an analysis shall be made of the 15 difference in the cost of acquiring the articles, mate- 16 rials, or supplies from a firm manufacturing the ar- 17 ticles, materials, or supplies in the United States 18 (including the cost of shipping) and the cost of ac- 19 quiring the articles, materials, or supplies from a 20 firm manufacturing the articles, materials, or sup- 21 plies outside the United States (including the cost of 22 shipping).’’. 23 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1726 IS SEC. 4. CRITERIA REQUIRED FOR USE OF PUBLIC INTER- 1 EST EXCEPTION. 2 (a) BUY AMERICAN ACT.—Section 8302 of title 41, 3 United States Code, as amended by section 3, is further 4 amended by adding at the end the following new sub- 5 section: 6 ‘‘(d) CRITERIA FOR USE OF PUBLIC INTEREST EX- 7 CEPTION.—In determining whether a public interest ex- 8 ception shall be applied under subsection (a), the head of 9 a Federal agency shall— 10 ‘‘(1) consider the short-term and long-term ef- 11 fects of applying such exception on employment 12 within the United States, taking into account infor- 13 mation provided by entities that manufacture the ar- 14 ticles, materials, or supplies concerned in the United 15 States; and 16 ‘‘(2) determine that preserving or increasing 17 employment within the United States is consistent 18 with the public interest.’’. 19 (b) FEDERAL TRANSIT ADMINISTRATION FUNDS.— 20 Section 5323(j) of title 49, United States Code, is amend- 21 ed by adding at the end the following new paragraph: 22 ‘‘(14) CRITERIA FOR USE OF PUBLIC INTEREST 23 WAIVER.—In determining whether a public interest 24 waiver shall be issued under paragraph (2)(A), the 25 Secretary shall— 26 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1726 IS ‘‘(A) consider the short-term and long- 1 term effects of applying such waiver on employ- 2 ment within the United States, taking into ac- 3 count information provided by entities that 4 produce the steel, iron, and goods concerned in 5 the United States; and 6 ‘‘(B) determine that preserving or increas- 7 ing employment within the United States is 8 consistent with the public interest.’’. 9 (c) FEDERAL HIGHWAY ADMINISTRATION FUNDS.— 10 Section 313 of title 23, United States Code, is amended 11 by adding at the end the following new subsection: 12 ‘‘(h) CRITERIA FOR USE OF PUBLIC INTEREST FIND- 13 ING.—In determining whether a public interest finding 14 shall be made under subsection (b)(1), the Secretary 15 shall— 16 ‘‘(1) consider the short-term and long-term ef- 17 fects of making such finding on employment within 18 the United States, taking into account information 19 provided by entities that produce the materials or 20 products concerned in the United States; and 21 ‘‘(2) determine that preserving or increasing 22 employment within the United States is consistent 23 with the public interest.’’. 24 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1726 IS (d) AMTRAK FUNDS.—Section 24305(f) of title 49, 1 United States Code, is amended by adding at the end the 2 following new paragraph: 3 ‘‘(5) In deciding whether a public interest exemption 4 shall be issued under paragraph (4)(A)(i), the Secretary 5 shall— 6 ‘‘(A) consider the short-term and long-term ef- 7 fects of issuing such exemption on employment with- 8 in the United States, taking into account informa- 9 tion provided by entities that manufacture the arti- 10 cles, material, or supplies concerned in the United 11 States; and 12 ‘‘(B) determine that preserving or increasing 13 employment within the United States is consistent 14 with the public interest.’’. 15 (e) FEDERAL RAILROAD ADMINISTRATION HIGH- 16 SPEED RAIL PROGRAM FUNDS.—Section 22905(a) of title 17 49, United States Code, is amended by adding at the end 18 the following new paragraph: 19 ‘‘(12) In determining whether a public interest waiver 20 shall be granted under paragraph (2)(A), the Secretary 21 shall— 22 ‘‘(A) consider the short-term and long-term ef- 23 fects of granting such waiver on employment within 24 the United States, taking into account information 25 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1726 IS provided by entities that produce the steel, iron, or 1 goods concerned in the United States; and 2 ‘‘(B) determine that preserving or increasing 3 employment within the United States is consistent 4 with the public interest.’’. 5 (f) FEDERAL AVIATION ADMINISTRATION FUNDS.— 6 Section 50101 of title 49, United States Code, is amended 7 by adding at the end the following new subsection: 8 ‘‘(d) CRITERIA FOR USE OF PUBLIC INTEREST 9 WAIVER.—In determining whether a public interest waiver 10 shall be granted under subsection (b)(1), the Secretary 11 shall— 12 ‘‘(1) consider the short-term and long-term ef- 13 fects of granting such waiver on employment within 14 the United States, taking into account information 15 provided by entities that produce the steel or goods 16 concerned in the United States; and 17 ‘‘(2) determine that preserving or increasing 18 employment within the United States is consistent 19 with the public interest.’’. 20 (g) WATER POLLUTION PREVENTION AND CONTROL 21 GRANTS FOR CONSTRUCTION OF TREATMENT WORKS.— 22 Section 215 of the Federal Water Pollution Control Act 23 (33 U.S.C. 1295) is amended— 24 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1726 IS (1) by inserting ‘‘(a) IN GENERAL.—’’ before 1 ‘‘Notwithstanding’’; and 2 (2) by adding at the end the following new sub- 3 section: 4 ‘‘(b) CRITERIA FOR USE OF PUBLIC INTEREST EX- 5 CEPTION.—In determining whether a public interest ex- 6 ception shall be applied under subsection (a), the Adminis- 7 trator shall— 8 ‘‘(1) consider the short-term and long-term ef- 9 fects of applying such exception on employment 10 within the United States, taking into account infor- 11 mation provided by entities that manufacture the ar- 12 ticles, materials, or supplies concerned in the United 13 States; and 14 ‘‘(2) determine that preserving or increasing 15 employment within the United States is consistent 16 with the public interest.’’. 17 SEC. 5. WAIVER TRANSPARENCY AND STREAMLINING 18 THROUGH THE BUYAMERICAN.GOV WEBSITE. 19 (a) IN GENERAL.—Not later than 180 days after the 20 date of the enactment of this Act, the Administrator of 21 General Services shall maintain an internet website with 22 the address BuyAmerican.gov that will be publicly avail- 23 able and free to access. The website shall include informa- 24 tion on all waivers of and exceptions to Buy American laws 25 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1726 IS that have been requested, are under consideration, or have 1 been granted by executive agencies and be designed to en- 2 able manufacturers and other interested parties to easily 3 identify waivers, and shall provide publicly available con- 4 tact information for the contracting agencies. 5 (b) COLLECTION OF INFORMATION.—The President, 6 in consultation with the heads of relevant agencies, shall 7 develop a mechanism to collect information on requests to 8 waive Buy American laws and other domestic content re- 9 strictions, utilizing existing reporting requirements when- 10 ever possible, for purposes of providing early notice to pos- 11 sible waivers via the website maintained under subsection 12 (a). The heads of executive agencies shall report to the 13 Administrator as quickly as possible waivers requested or 14 under consideration and waivers granted due to the non- 15 availability of procured items or service providers for pur- 16 poses of posting such information on the website main- 17 tained under such subsection. 18 (c) WAIVER TRANSPARENCY AND STREAMLINING.— 19 Not less than 20 days prior to waiving, under his or her 20 statutory authority, any applicable Buy American Law, 21 the head of an executive agency shall submit to the Ad- 22 ministrator of General Services a copy of the request and 23 information available to the executive agency concerning 24 the request. Not later than 5 days after receiving this in- 25 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1726 IS formation from the head of an executive agency, the Ad- 1 ministrator of General Services shall make available to the 2 public, by posting on the website maintained under sub- 3 section (a), a copy of the request and information available 4 to the executive agency concerning the request, and shall 5 allow for informal public comment on the request for at 6 least 15 days prior to making a finding based on the re- 7 quest. 8 (d) INFORMATION AVAILABLE TO THE EXECUTIVE 9 AGENCY CONCERNING THE REQUEST.— 10 (1) REQUIREMENT.—No requested waiver of an 11 applicable Buy American Law may be granted if, in 12 contravention of subsection (c)— 13 (A) the request was not made available to 14 the public; 15 (B) the information available to the execu- 16 tive agency concerning the request was not 17 made available to the public; or 18 (C) no opportunity for public comment 19 concerning the request was granted. 20 (2) SCOPE.—Information made available to the 21 public under this section concerning the request 22 shall properly and adequately document and justify 23 the statutory basis cited for the requested waiver. 24 Such information shall include— 25 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1726 IS (A) a detailed justification for the use of 1 goods, products, or materials mined, produced, 2 or manufactured outside the United States; 3 (B) for requests citing unreasonable cost 4 as the statutory basis of the waiver, a compari- 5 son of the cost of the domestic product to the 6 cost of the foreign product or a comparison of 7 the overall cost of the project with domestic 8 products to the overall cost of the project with 9 foreign-origin products or services, pursuant to 10 the requirements of the applicable Buy Amer- 11 ican law, except that publicly available cost 12 comparison data may be provided in lieu of pro- 13 prietary pricing information; 14 (C) for requests citing availability, quan- 15 tity, or quality as the statutory basis for the 16 waiver, information from a reasonable number 17 of domestic suppliers concerning a product’s 18 availability, quantity, or quality, documentation 19 of the procurement official’s or assistance re- 20 cipient’s efforts to procure from domestic 21 sources and relevant excerpts from project 22 plans, specifications, and permits indicating the 23 required quantity and quality of the relevant 24 products; 25 VerDate Sep 11 2014 04:16 Jun 03, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1726.IS S1726 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1726 IS (D) for requests citing the public interest 1 as the statutory basis for the waiver, a detailed 2 written statement, which shall include all appro- 3 priate factors, justifying why the requested 4 waiver is in public interest; and 5 (E) a certification that th [Text truncated for display. 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