I 111th CONGRESS 2d Session H. R. 4553 IN THE HOUSE OF REPRESENTATIVES February 2, 2010 Mr. Murphy of Connecticut (for himself, Ms. Sutton, Mr. Schauer, and Mr. Lipinski) introduced the following bill; which was referred to the Committee on Oversight and Government Reform A BILL To amend the Buy American Act with respect to certain waivers under that Act, to provide greater transparency regarding exceptions to domestic sourcing requirements, and for other purposes.

1.

Short title

This Act may be cited as the 21st Century Buy American Act.

2.

Grants to domestic manufacturers

(a)

Program authorized

The Secretary of Commerce is authorized to establish and carry out a program to award grants to eligible entities in accordance with this section. (b)

Eligibility requirements

The Secretary of Commerce shall establish eligibility requirements for purposes of the grants 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 Commerce, 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 grant

The amount of any grant under this section may not exceed $5,000,000 per entity. (d)

Use of funds

(1)

In general

Each eligible entity receiving a grant under this section shall use the grant funds for any of the following purposes: (A)Increasing its ability to compete for a Government contract for a nonavailable item. (B)Increasing its ability to produce a nonavailable item. (C)Increasing its capacity to produce items that are vital to national security. (D)Increasing its capacity to create additional or retain existing jobs. (E)Modernizing or renovating existing manufacturing facilities using domestically made equipment. (F)Covering costs associated with obtaining access to adjustment assistance under chapter 3 of title II of the Trade Act of 1974 (19 U.S.C. 2341 et seq.). (2)

Limitation

No funds in a grant awarded under this section may be used for profits of an eligible entity. (e)

Application requirements

To receive a grant under this section, an eligible entity shall submit an application to the Secretary of Commerce 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 grant, but such statement shall not be the sole factor used in determining the award of the grant. (f)

Annual evaluation of grant recipients by Department of Commerce

The Secretary of Commerce each year shall evaluate recipients of grants under this section to determine the proper allocation of grant funds. (g)

Definition of nonavailable item

In this section, the term nonavailable item means an article, material, or supply— (1)that has been determined by a Federal agency, pursuant to the Buy American Act (41 U.S.C. 10a et seq.), to not be mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; (2)that has been subject to a waiver under section 1605 of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5; 123 Stat. 303); or (3)that is listed on the list of nonavailable articles under subpart 25.104 of the Federal Acquisition Regulation.

3.

Requirements relating to certain waivers of Buy American Act

(a)

Special rules relating to certain waivers

Section 2 of the Buy American Act (41 U.S.C. 10a) is amended by adding at the end the following new subsection: (c)

Special rules

The following rules apply in carrying out the provisions of subsection (a): (1)

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 in which 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 of 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 of acquiring the articles, materials, or supplies from a company manufacturing the articles, materials, or supplies outside the United States (including the cost of shipping). (2)

Effect on domestic employment

In determining whether a public interest waiver, or waiver for use outside the United States, shall be granted under subsection (a), the head of a Federal agency shall— (A)consider the short-term and long-term effects of granting such a waiver 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 (B)determine that preserving or increasing employment within the United States is consistent with the public interest. . (b)

Definition

Section 1 of the Buy American Act (41 U.S.C. 10c) is amended by adding at the end the following new subsection: (c)

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. .

4.

Transparency requirements

(a)

Requirement for agencies To notify OMB

Each agency that applies an exception to the Buy American Act (41 U.S.C. 10a et seq.) shall submit to the Director of the Office of Management and Budget a notification of the application of the exception and a statement describing the procurement and the exception being applied. (b)

Requirement for Director of OMB To post on Web site

Within 7 days after receipt of any notification under subsection (a), the Director of the Office of Management and Budget shall post the notification on a central, publicly accessible Web site of the Office. (c)

Definition of agency

In this section, the term agency has the meaning given under section 551 of title 5, United States Code.

5.

Requirement for annual report by Comptroller General on exceptions to Buy American Act and other domestic source requirements

(a)

Report requirement

(1)

In general

Not later than 60 days after the end of a fiscal year, the Comptroller General of the United States shall submit to Congress a report on the amount of the acquisitions made by each agency in that fiscal year of articles, materials, or supplies purchased from entities that manufacture the articles, materials, or supplies outside of the United States. (2)

Contents of report

The report required by paragraph (1) shall separately include, for the fiscal year covered by such report— (A)the dollar value of any articles, materials, or supplies that were manufactured outside the United States; (B)an itemized list of all waivers granted with respect to such articles, materials, or supplies under the Buy American Act (41 U.S.C. 10a et seq.), section 1605(a) of the American Recovery and Reinvestment Act of 2009 (123 Stat. 303), or any other law that requires procurement of goods or services from a domestic source, and a citation to the treaty, international agreement, or other law under which each waiver was granted; (C)if any articles, materials, or supplies were acquired from entities that manufacture articles, materials, or supplies outside the United States, the specific exception under section 2 of the Buy American Act (41 U.S.C. 10a), section 1605(a) of the American Recovery and Reinvestment Act of 2009 (123 Stat. 303), or any other law that requires procurement of goods or services from a domestic source, that was used to purchase such articles, materials, or supplies; and (D)a summary of— (i)the total procurement funds expended on articles, materials, and supplies manufactured inside the United States; and (ii)the total procurement funds expended on articles, materials, and supplies manufactured outside the United States. (b)

Public availability

The Comptroller General shall make the report publicly available to the maximum extent practicable. (c)

Exception for intelligence community

The report required under this section shall not cover acquisitions made by an agency, or component thereof, that is an element of the intelligence community as specified in, or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). (d)

Definition of agency

In this section, the term agency has the meaning given under section 551 of title 5, United States Code.