[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2391 Introduced in Senate (IS)]

113th CONGRESS
  2d Session
                                S. 2391

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 22, 2014

  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 on an urgent basis.
                    ``(B) The articles, materials, or supplies are to 
                be purchased using a local supplier.
                    ``(C) A cost analysis described in paragraph (2) 
                demonstrates that the articles, materials, or supplies 
                to be acquired (if acquired from a company 
                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 on an urgent basis or are not 
        to be purchased using a local supplier, 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).''.

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:
            ``(10) 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 24405(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 1295 of title 33, United States Code, 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. TRANSPARENCY REQUIREMENTS.

    (a) Requirement for Agencies To Notify OMB.--Each agency that 
applies an exception to, or grants a waiver under, chapter 83 of title 
41, United States Code (popularly referred to as the Buy American Act) 
shall submit to the Director of the Office of Management and Budget a 
notification of the application of the exception or the grant of a 
waiver and a statement describing the procurement and the exception 
being applied or waiver granted.
    (b) Requirement for Director of OMB To Post on Website.--Not later 
than 7 days after receiving a notification under subsection (a), the 
Director of the Office of Management and Budget shall post the 
notification on a central, publicly accessible website of the Office.
    (c) Definition of Agency.--In this section, the term ``agency'' has 
the meaning given the term in section 551 of title 5, 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 2533a(b) of title 
                10, United States Code, 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 2533a(c) of such title.
            (3) Compliant specialty metal--
                    (A) as defined in section 2533b(b) of title 10, 
                United States Code; 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 2533b(b).
            (4) An item listed in subsection (a) of section 2534 of 
        title 10, United States Code, 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 2500(1) of such title) is not available.
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