I 

111TH CONGRESS 

2D SESSION H. R. 4553 

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. 

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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘21st Century Buy 

5 American Act’’. 

6 SEC. 2. GRANTS TO DOMESTIC MANUFACTURERS. 

7 (a) PROGRAM AUTHORIZED.—The Secretary of Com8 merce is authorized to establish and carry out a program 


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1 to award grants to eligible entities in accordance with this 

2 section. 

3 (b) ELIGIBILITY REQUIREMENTS.—The Secretary of 

4 Commerce shall establish eligibility requirements for pur5 poses of the grants under this section in order to provide 

6 assistance to any entity that— 

7 (1) is a manufacturer in the United States; 

8 (2) is a firm certified as eligible to apply for ad9 justment assistance under section 251(c) of the 

10 Trade Act of 1974 (19 U.S.C. 2341(c)); and 

11 (3) meets one of the following criteria: 

12 (A) The entity mines, produces, or manu13 factures a nonavailable item. 

14 (B) The entity is the last remaining manu15 facturer of an item in the United States, as de16 termined by the Secretary of Commerce, and 

17 can prove hardship because of foreign competi18 tion. 

19 (C) The entity is the last remaining manu20 facturer of an item in the United States and 

21 that item is considered to be vital for national 

22 security purposes by the Department of De23 fense or another department or agency of the 

24 United States. 


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1 (c) AMOUNT OF GRANT.—The amount of any grant 

2 under this section may not exceed $5,000,000 per entity. 

3 (d) USE OF FUNDS.— 

4 (1) IN GENERAL.—Each eligible entity receiving 

5 a grant under this section shall use the grant funds 

6 for any of the following purposes: 

7 (A) Increasing its ability to compete for a 

8 Government contract for a nonavailable item. 

9 (B) Increasing its ability to produce a non10 available item. 

11 (C) Increasing its capacity to produce 

12 items that are vital to national security. 

13 (D) Increasing its capacity to create addi14 tional or retain existing jobs. 

15 (E) Modernizing or renovating existing 

16 manufacturing facilities using domestically 

17 made equipment. 

18 (F) Covering costs associated with obtain19 ing access to adjustment assistance under chap20 ter 3 of title II of the Trade Act of 1974 (19 

21 U.S.C. 2341 et seq.). 

22 (2) LIMITATION.—No funds in a grant awarded 

23 under this section may be used for profits of an eli24 gible entity. 


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1 (e) APPLICATION REQUIREMENTS.—To receive a 

2 grant under this section, an eligible entity shall submit 

3 an application to the Secretary of Commerce at such time, 

4 in such manner, and containing such information as the 

5 Secretary may require. At a minimum, the application 

6 shall include a statement regarding the number of direct 

7 full-time domestic jobs expected to be created or retained 

8 as a result of the grant, but such statement shall not be 

9 the sole factor used in determining the award of the grant. 

10 (f) ANNUAL EVALUATION OF GRANT RECIPIENTS BY

11 DEPARTMENT OF COMMERCE.—The Secretary of Com12 merce each year shall evaluate recipients of grants under 

13 this section to determine the proper allocation of grant 

14 funds. 

15 (g) DEFINITION OF NONAVAILABLE ITEM.—In this 

16 section, the term ‘‘nonavailable item’’ means an article, 

17 material, or supply— 

18 (1) that has been determined by a Federal 

19 agency, pursuant to the Buy American Act (41 

20 U.S.C. 10a et seq.), to not be mined, produced, or 

21 manufactured in the United States in sufficient and 

22 reasonably available commercial quantities of a sat23 isfactory quality; 

24 (2) that has been subject to a waiver under sec25 tion 1605 of the American Recovery and ReinvestVerDate Nov 24 2008 05:03 Feb 03, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4553.IH H4553

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1 ment Act of 2009 (Public Law 111–5; 123 Stat. 

2 303); or 

3 (3) that is listed on the list of nonavailable arti4 cles under subpart 25.104 of the Federal Acquisition 

5 Regulation. 

6 SEC. 3. REQUIREMENTS RELATING TO CERTAIN WAIVERS 

7 OF BUY AMERICAN ACT. 

8 (a) SPECIAL RULES RELATING TO CERTAIN WAIV9 ERS.—Section 2 of the Buy American Act (41 U.S.C. 10a) 

10 is amended by adding at the end the following new sub11 section: 

12 ‘‘(c) SPECIAL RULES.—The following rules apply in 

13 carrying out the provisions of subsection (a): 

14 ‘‘(1) USE OUTSIDE THE UNITED STATES.— 

15 ‘‘(A) IN GENERAL.—Subsection (a) shall 

16 apply without regard to whether the articles, 

17 materials, or supplies to be acquired are for use 

18 outside the United States if the articles, mate19 rials, or supplies are not needed on an urgent 

20 basis or if they are acquired on a regular basis. 

21 ‘‘(B) COST ANALYSIS.—In any case in 

22 which the articles, materials, or supplies are to 

23 be acquired for use outside the United States 

24 and are not needed on an urgent basis, before 

25 entering into a contract an analysis shall be 


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1 made of the difference in the cost of acquiring 

2 the articles, materials, or supplies from a com3 pany manufacturing the articles, materials, or 

4 supplies in the United States (including the 

5 cost of shipping) and the cost of acquiring the 

6 articles, materials, or supplies from a company 

7 manufacturing the articles, materials, or sup8 plies outside the United States (including the 

9 cost of shipping). 

10 ‘‘(2) EFFECT ON DOMESTIC EMPLOYMENT.—In 

11 determining whether a public interest waiver, or 

12 waiver for use outside the United States, shall be 

13 granted under subsection (a), the head of a Federal 

14 agency shall— 

15 ‘‘(A) consider the short-term and long16 term effects of granting such a waiver on em17 ployment within the United States, taking into 

18 account information provided by entities that 

19 manufacture the articles, materials, or supplies 

20 concerned in the United States; and 

21 ‘‘(B) determine that preserving or increas22 ing employment within the United States is 

23 consistent with the public interest.’’. 


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1 (b) DEFINITION.—Section 1 of the Buy American 

2 Act (41 U.S.C. 10c) is amended by adding at the end the 

3 following new subsection: 

4 ‘‘(c) SUBSTANTIALLY ALL.—Articles, materials, or 

5 supplies shall be treated as made substantially all from 

6 articles, materials, or supplies mined, produced, or manu7 factured in the United States, if the cost of the domestic 

8 components of such articles, materials, or supplies exceeds 

9 60 percent of the total cost of all components of such arti10 cles, materials, or supplies.’’. 

11 SEC. 4. TRANSPARENCY REQUIREMENTS. 

12 (a) REQUIREMENT FOR AGENCIES TO NOTIFY

13 OMB.—Each agency that applies an exception to the Buy 

14 American Act (41 U.S.C. 10a et seq.) shall submit to the 

15 Director of the Office of Management and Budget a notifi16 cation of the application of the exception and a statement 

17 describing the procurement and the exception being ap18 plied. 

19 (b) REQUIREMENT FOR DIRECTOR OF OMB TO POST

20 ON WEB SITE.—Within 7 days after receipt of any notifi21 cation under subsection (a), the Director of the Office of 

22 Management and Budget shall post the notification on a 

23 central, publicly accessible Web site of the Office. 


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1 (c) DEFINITION OF AGENCY.—In this section, the 

2 term ‘‘agency’’ has the meaning given under section 551 

3 of title 5, United States Code. 

4 SEC. 5. REQUIREMENT FOR ANNUAL REPORT BY COMP5 TROLLER GENERAL ON EXCEPTIONS TO BUY 

6 AMERICAN ACT AND OTHER DOMESTIC 

7 SOURCE REQUIREMENTS. 

8 (a) REPORT REQUIREMENT.— 

9 (1) IN GENERAL.—Not later than 60 days after 

10 the end of a fiscal year, the Comptroller General of 

11 the United States shall submit to Congress a report 

12 on the amount of the acquisitions made by each 

13 agency in that fiscal year of articles, materials, or 

14 supplies purchased from entities that manufacture 

15 the articles, materials, or supplies outside of the 

16 United States. 

17 (2) CONTENTS OF REPORT.—The report re18 quired by paragraph (1) shall separately include, for 

19 the fiscal year covered by such report— 

20 (A) the dollar value of any articles, mate21 rials, or supplies that were manufactured out22 side the United States; 

23 (B) an itemized list of all waivers granted 

24 with respect to such articles, materials, or sup25 plies under the Buy American Act (41 U.S.C. 


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1 10a et seq.), section 1605(a) of the American 

2 Recovery and Reinvestment Act of 2009 (123 

3 Stat. 303), or any other law that requires pro4 curement of goods or services from a domestic 

5 source, and a citation to the treaty, inter6 national agreement, or other law under which 

7 each waiver was granted; 

8 (C) if any articles, materials, or supplies 

9 were acquired from entities that manufacture 

10 articles, materials, or supplies outside the 

11 United States, the specific exception under sec12 tion 2 of the Buy American Act (41 U.S.C. 

13 10a), section 1605(a) of the American Recovery 

14 and Reinvestment Act of 2009 (123 Stat. 303), 

15 or any other law that requires procurement of 

16 goods or services from a domestic source, that 

17 was used to purchase such articles, materials, 

18 or supplies; and 

19 (D) a summary of— 

20 (i) the total procurement funds ex21 pended on articles, materials, and supplies 

22 manufactured inside the United States; 

23 and 


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1 (ii) the total procurement funds ex2 pended on articles, materials, and supplies 

3 manufactured outside the United States. 

4 (b) PUBLIC AVAILABILITY.—The Comptroller Gen5 eral shall make the report publicly available to the max6 imum extent practicable. 

7 (c) EXCEPTION FOR INTELLIGENCE COMMUNITY.— 

8 The report required under this section shall not cover ac9 quisitions made by an agency, or component thereof, that 

10 is an element of the intelligence community as specified 

11 in, or designated under section 3(4) of the National Secu12 rity Act of 1947 (50 U.S.C. 401a(4)). 

13 (d) DEFINITION OF AGENCY.—In this section, the 

14 term ‘‘agency’’ has the meaning given under section 551 

15 of title 5, United States Code. 

Æ 


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