[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3741 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 3741

To amend the Buy American Act to increase the requirement for American-
made content, to tighten the waiver provisions, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 28, 2004

  Mr. Brown of Ohio (for himself and Mr. Ryan of Ohio) introduced the 
   following bill; which was referred to the Committee on Government 
                                 Reform

_______________________________________________________________________

                                 A BILL


 
To amend the Buy American Act to increase the requirement for American-
made content, to tighten the waiver provisions, 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 ``Buy American Improvement Act of 
2004''.

SEC. 2. REQUIREMENTS FOR WAIVERS.

    (a) In General.--Section 2 of the Buy American Act (41 U.S.C. 10a) 
is amended--
            (1) by striking ``Notwithstanding'' and inserting the 
        following:
    ``(a) In General.--Notwithstanding''; and
            (2) by adding at the end the following:
    ``(b) Special Rules.--The following rules shall apply in carrying 
out the provisions of subsection (a):
            ``(1) Public interest waiver.--A determination that it is 
        inconsistent with the public interest to enter into a contract 
        in accordance with this Act may not be made after a notice of 
        solicitation of offers for the contract is published in 
        accordance with section 18 of the Office of Federal Procurement 
        Policy Act (41 U.S.C. 416) and section 8(e) of the Small 
        Business Act (15 U.S.C. 637(e)).
            ``(2) Domestic bidder.--A Federal agency entering into a 
        contract shall give preference to a company submitting an offer 
        on the contract that manufactures in the United States the 
        article, material, or supply for which the offer is solicited, 
        if--
                    ``(A) that company's offer is substantially the 
                same as an offer made by a company that does not 
                manufacture the article, material, or supply in the 
                United States; or
                    ``(B) that company is the only company that 
                manufactures in the United States the article, 
                material, or supply for which the offer is solicited.
            ``(3) Use outside the united states.--
                    ``(A) In general.--Subsection (a) shall apply 
                without regard to whether the articles, materials, or 
                supplies to be acquired are for use outside the United 
                States if the articles, materials, or supplies are not 
                needed on an urgent basis or if they are acquired on a 
                regular basis.
                    ``(B) Cost analysis.--In any case where the 
                articles, materials, or supplies are to be acquired for 
                use outside the United States and are not needed on an 
                urgent basis, before entering into a contract an 
                analysis shall be made of the difference in the cost 
                for acquiring the articles, materials, or supplies from 
                a company manufacturing the articles, materials, or 
                supplies in the United States (including the cost of 
                shipping) and the cost for acquiring the articles, 
                materials, or supplies from a company manufacturing the 
                articles, materials, or supplies outside the United 
                States (including the cost of shipping).
            ``(4) Domestic availability.--The head of a Federal agency 
        may not make a determination under subsection (a) that an 
        article, material, or supply is not mined, produced, or 
        manufactured, as the case may be, in the United States in 
        sufficient and reasonably available commercial quantities and 
        of satisfactory quality, unless the head of the agency has 
        conducted a study and, on the basis of such study, determined 
        that--
                    ``(A) domestic production cannot be initiated to 
                meet the procurement needs; and
                    ``(B) a comparable article, material, or supply is 
                not available from a company in the United States.
            ``(5) Certain congressional purchases.--Subsection (a) 
        shall not apply with respect to a contract entered into by the 
        office of a Member of the House of Representatives or the 
        office of a Senator during a fiscal year if--
                    ``(A) the funds used to make payment under the 
                contract are derived from the Members' Representational 
                Allowance under section 101(a) of the House of 
                Representatives Administrative Reform and Technical 
                Corrections Act (2 U.S.C. 57b) or the Senators' 
                Official Personnel and Office Expense Account 
                established under subsection (a) of the first section 
                of Public Law 100-137 (2 U.S.C. 58c), as the case may 
                be; and
                    ``(B) the aggregate amount expended by the office 
                during the year for the article, material, or supply 
                which is the subject of the contract does not exceed 
                $100.
    ``(c) Reports.--
            ``(1) In general.--Not later than 60 days after the end of 
        each fiscal year, the head of each Federal agency shall submit 
        to Congress a report on the amount of the acquisitions made by 
        the agency from entities that manufacture the articles, 
        materials, or supplies outside the United States in that fiscal 
        year.
            ``(2) Content of report.--The report required by paragraph 
        (1) shall separately indicate the following information:
                    ``(A) The dollar value of any articles, materials, 
                or supplies for which this Act was waived.
                    ``(B) An itemized list of all waivers granted with 
                respect to such articles, materials, or supplies under 
                this Act.
                    ``(C) A list of all articles, materials, and 
                supplies acquired, their source, and the amount of the 
                acquisitions.
            ``(3) Public availability.--The head of each Federal agency 
        submitting a report under paragraph (1) shall make the report 
        publicly available by posting on an Internet website.''.
    (b) Definitions.--Section 1 of the Buy American Act (41 U.S.C. 10c) 
is amended--
            (1) by striking subsection (c) and inserting the following:
    ``(c) Federal Agency.--The term `Federal agency' means any 
executive agency (as defined in section 4(1) of the Federal Procurement 
Policy Act (41 U.S.C. 403(1))) or any establishment in the legislative 
or judicial branch of the Government.''; and
            (2) by adding at the end the following:
    ``(d) Substantially All.--Articles, materials, or supplies shall be 
treated as made substantially all from articles, materials, or supplies 
mined, produced, or manufactured, as the case may be, in the United 
States, if the cost of the domestic components of such articles, 
materials, or supplies exceeds 75 percent.''.
    (c) Conforming Amendments.--
            (1) Section 2 of the Buy American Act (41 U.S.C. 10a) is 
        amended by striking ``department or independent establishment'' 
        and inserting ``Federal agency''.
            (2) Section 3 of such Act (41 U.S.C. 10b) is amended--
                    (A) by striking ``department or independent 
                establishment'' in subsection (a), and inserting 
                ``Federal agency''; and
                    (B) by striking ``department, bureau, agency, or 
                independent establishment'' in subsection (b) and 
                inserting ``Federal agency''.
            (3) Section 633 of the National Military Establishment 
        Appropriations Act, 1950 (41 U.S.C. 10d) is amended by striking 
        ``department or independent establishment'' and inserting 
        ``Federal agency''.
            (4) Section 69 of the Revised Statutes of the United States 
        (2 U.S.C. 109) is repealed.

SEC. 3. DETERMINATIONS OF UNREASONABLE COST AND INCONSISTENT WITH THE 
              PUBLIC INTEREST.

    (a) In General.--Not later than 1 year after the date of the 
enactment of this Act, the Secretary of Commerce shall prescribe final 
regulations establishing, for purposes of applying section 2(a) of the 
Buy American Act (41 U.S.C. 10a(a))--
            (1) definitions for the terms ``unreasonable cost'' and 
        ``inconsistent with the public interest'';
            (2) purposes for which a waiver may be granted under such 
        section based on unreasonable cost or on inconsistency with the 
        public interest; and
            (3) procedures for all Federal agencies covered by the Act 
        to consistently apply the waivers described in paragraph (2).
    (b) Advisory Panel.--Not later than 30 days after the date of the 
enactment of this Act, the Secretary shall appoint a panel to be known 
as the ``Buy American Advisory Panel'' consisting of members as 
follows:
            (1) The Administrator of General Services or the 
        Administrator's designee, who shall serve as Chairman.
            (2) The Secretary of Defense or the Secretary's designee.
            (3) A representative of the manufacturing industry who is 
        employed by a manufacturing business that produces the majority 
        of its goods in the United States and is a Federal contractor 
        at the time of appointment to the panel.
            (4) A representative of the services industry who is 
        employed by a services business that provides the majority of 
        its services to clients in the United States and is a Federal 
        contractor at the time of appointment to the panel.
            (5) A representative of labor in the manufacturing 
        industry.
            (6) A representative of labor in the services industry.
            (7) An academic economist.
    (c) Compensation and Expenses.--The Secretary of Commerce shall 
provide the support services, facilities, and funds necessary for the 
performance of the Advisory Panel's functions. No member may receive 
compensation for service as a member of the Advisory Panel, but a 
member of the Advisory Panel who is not a government employee may 
receive travel expenses, including per diem in lieu of subsistence, in 
accordance with applicable provisions under subchapter I of chapter 57 
of title 5, United States Code.
    (d) Report.--The Chairman of the Advisory Panel shall, not later 
than 180 days after the date of the enactment of this Act, submit to 
the Secretary of Commerce a report making recommendations for 
implementing the requirements of subsection (a).

SEC. 4. DUAL-USE TECHNOLOGIES.

    The head of a Federal agency (as defined in section 1(c) of the Buy 
American Act (as amended by section 2)) may not enter into a contract, 
nor permit a subcontract under a contract of the Federal agency, with a 
foreign entity that involves giving the foreign entity plans, manuals, 
or other information that would facilitate the manufacture of a dual-
use item on the Commerce Control List unless approval for providing 
such plans, manuals, or information has been obtained in accordance 
with the provisions of the Export Administration Act of 1979 (50 U.S.C. 
App. 2401 et seq.) and the Export Administration Regulations (15 C.F.R. 
part 730 et seq.).
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