[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1726 Introduced in Senate (IS)]

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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,''.
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