II 

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. 

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’’. 


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1 SEC. 2. INCREASE OF DOMESTIC CONTENT PERCENTAGE 

2 TO 60 PERCENT. 

3 Section 8301 of title 41, United States Code, is 

4 amended by adding at the end the following new para5 graph: 

6 ‘‘(3) SUBSTANTIALLY ALL.—Articles, materials, 

7 or supplies shall be treated as made substantially all 

8 from articles, materials, or supplies mined, pro9 duced, or manufactured in the United States, if the 

10 cost of the domestic components of such articles, 

11 materials, or supplies exceeds 60 percent of the total 

12 cost of all components of such articles, materials, or 

13 supplies.’’. 

14 SEC. 3. CRITERIA REQUIRED FOR USE OF OVERSEAS EX15 CEPTION. 

16 Section 8302 of title 41, United States Code, is 

17 amended by adding at the end the following new sub18 section: 

19 ‘‘(c) CRITERIA FOR USE OF OVERSEAS EXCEP20 TION.— 

21 ‘‘(1) IN GENERAL.—The exception under sub22 section (a)(2)(A) for articles, materials, or supplies 

23 to be acquired for use outside the United States may 

24 not be used unless one of the following criteria is 

25 met: 


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1 ‘‘(A) The articles, materials, or supplies 

2 are needed on an urgent basis. 

3 ‘‘(B) The articles, materials, or supplies 

4 are to be purchased using a local supplier. 

5 ‘‘(C) A cost analysis described in para6 graph (2) demonstrates that the articles, mate7 rials, or supplies to be acquired (if acquired 

8 from a company manufacturing in the United 

9 States) would be more than 50 percent more 

10 expensive for the Federal agency acquiring the 

11 articles, materials, or supplies. 

12 ‘‘(2) COST ANALYSIS.—In any case in which ar13 ticles, materials, or supplies are to be acquired for 

14 use outside the United States and are not needed on 

15 an urgent basis or are not to be purchased using a 

16 local supplier, before entering into a contract an 

17 analysis shall be made of the difference in the cost 

18 of acquiring the articles, materials, or supplies from 

19 a company manufacturing the articles, materials, or 

20 supplies in the United States (including the cost of 

21 shipping) and the cost of acquiring the articles, ma22 terials, or supplies from a company manufacturing 

23 the articles, materials, or supplies outside the United 

24 States (including the cost of shipping).’’. 


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1 SEC. 4. CRITERIA REQUIRED FOR USE OF PUBLIC INTER2 EST EXCEPTION. 

3 (a) BUY AMERICAN ACT.—Section 8302 of title 41, 

4 United States Code, as amended by section 3, is further 

5 amended by adding at the end the following new sub6 section: 

7 ‘‘(d) CRITERIA FOR USE OF PUBLIC INTEREST EX8 CEPTION.—In determining whether a public interest ex9 ception shall be applied under subsection (a), the head of 

10 a Federal agency shall— 

11 ‘‘(1) consider the short-term and long-term ef12 fects of applying such exception on employment 

13 within the United States, taking into account infor14 mation provided by entities that manufacture the ar15 ticles, materials, or supplies concerned in the United 

16 States; and 

17 ‘‘(2) determine that preserving or increasing 

18 employment within the United States is consistent 

19 with the public interest.’’. 

20 (b) FEDERAL TRANSIT ADMINISTRATION FUNDS.— 

21 Section 5323(j) of title 49, United States Code, is amend22 ed by adding at the end the following new paragraph: 

23 ‘‘(10) CRITERIA FOR USE OF PUBLIC INTEREST

24 WAIVER.—In determining whether a public interest 

25 waiver shall be issued under paragraph (2)(A), the 

26 Secretary shall— 


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1 ‘‘(A) consider the short-term and long2 term effects of applying such waiver on employ3 ment within the United States, taking into ac4 count information provided by entities that 

5 produce the steel, iron, and goods concerned in 

6 the United States; and 

7 ‘‘(B) determine that preserving or increas8 ing employment within the United States is 

9 consistent with the public interest.’’. 

10 (c) FEDERAL HIGHWAY ADMINISTRATION FUNDS.— 

11 Section 313 of title 23, United States Code, is amended 

12 by adding at the end the following new subsection: 

13 ‘‘(h) CRITERIA FOR USE OF PUBLIC INTEREST FIND14 ING.—In determining whether a public interest finding 

15 shall be made under subsection (b)(1), the Secretary 

16 shall— 

17 ‘‘(1) consider the short-term and long-term ef18 fects of making such finding on employment within 

19 the United States, taking into account information 

20 provided by entities that produce the materials or 

21 products concerned in the United States; and 

22 ‘‘(2) determine that preserving or increasing 

23 employment within the United States is consistent 

24 with the public interest.’’. 


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1 (d) AMTRAK FUNDS.—Section 24305(f) of title 49, 

2 United States Code, is amended by adding at the end the 

3 following new paragraph: 

4 ‘‘(5) In deciding whether a public interest exemption 

5 shall be issued under paragraph (4)(A)(i), the Secretary 

6 shall— 

7 ‘‘(A) consider the short-term and long-term ef8 fects of issuing such exemption on employment with9 in the United States, taking into account informa10 tion provided by entities that manufacture the arti11 cles, material, or supplies concerned in the United 

12 States; and 

13 ‘‘(B) determine that preserving or increasing 

14 employment within the United States is consistent 

15 with the public interest.’’. 

16 (e) FEDERAL RAILROAD ADMINISTRATION HIGH

17 SPEED RAIL PROGRAM FUNDS.—Section 24405(a) of title 

18 49, United States Code, is amended by adding at the end 

19 the following new paragraph: 

20 ‘‘(12) In determining whether a public interest waiver 

21 shall be granted under paragraph (2)(A), the Secretary 

22 shall— 

23 ‘‘(A) consider the short-term and long-term ef24 fects of granting such waiver on employment within 

25 the United States, taking into account information 


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1 provided by entities that produce the steel, iron, or 

2 goods concerned in the United States; and 

3 ‘‘(B) determine that preserving or increasing 

4 employment within the United States is consistent 

5 with the public interest.’’. 

6 (f) FEDERAL AVIATION ADMINISTRATION FUNDS.— 

7 Section 50101 of title 49, United States Code, is amended 

8 by adding at the end the following new subsection: 

9 ‘‘(d) CRITERIA FOR USE OF PUBLIC INTEREST

10 WAIVER.—In determining whether a public interest waiver 

11 shall be granted under subsection (b)(1), the Secretary 

12 shall— 

13 ‘‘(1) consider the short-term and long-term ef14 fects of granting such waiver on employment within 

15 the United States, taking into account information 

16 provided by entities that produce the steel or goods 

17 concerned in the United States; and 

18 ‘‘(2) determine that preserving or increasing 

19 employment within the United States is consistent 

20 with the public interest.’’. 

21 (g) WATER POLLUTION PREVENTION AND CONTROL

22 GRANTS FOR CONSTRUCTION OF TREATMENT WORKS.— 

23 Section 1295 of title 33, United States Code, is amend24 ed— 


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1 (1) by inserting ‘‘(a) IN GENERAL.—’’ before 

2 ‘‘Notwithstanding’’; and 

3 (2) by adding at the end the following new sub4 section: 

5 ‘‘(b) CRITERIA FOR USE OF PUBLIC INTEREST EX6 CEPTION.—In determining whether a public interest ex7 ception shall be applied under subsection (a), the Adminis8 trator shall— 

9 ‘‘(1) consider the short-term and long-term ef10 fects of applying such exception on employment 

11 within the United States, taking into account infor12 mation provided by entities that manufacture the ar13 ticles, materials, or supplies concerned in the United 

14 States; and 

15 ‘‘(2) determine that preserving or increasing 

16 employment within the United States is consistent 

17 with the public interest.’’. 

18 SEC. 5. TRANSPARENCY REQUIREMENTS. 

19 (a) REQUIREMENT FOR AGENCIES TO NOTIFY

20 OMB.—Each agency that applies an exception to, or 

21 grants a waiver under, chapter 83 of title 41, United 

22 States Code (popularly referred to as the Buy American 

23 Act) shall submit to the Director of the Office of Manage24 ment and Budget a notification of the application of the 

25 exception or the grant of a waiver and a statement deVerDate Mar 15 2010 21:44 Jun 02, 2014 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2391.IS S2391

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1 scribing the procurement and the exception being applied 

2 or waiver granted. 

3 (b) REQUIREMENT FOR DIRECTOR OF OMB TO POST

4 ON WEBSITE.—Not later than 7 days after receiving a no5 tification under subsection (a), the Director of the Office 

6 of Management and Budget shall post the notification on 

7 a central, publicly accessible website of the Office. 

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

9 term ‘‘agency’’ has the meaning given the term in section 

10 551 of title 5, United States Code. 

11 SEC. 6. LOANS AND LOAN GUARANTEES TO DOMESTIC MAN12 UFACTURERS UNDER DEFENSE PRODUCTION 

13 ACT. 

14 (a) PROGRAM AUTHORIZED.—The President, acting 

15 through the Secretary of Defense, may establish and carry 

16 out a program to make or guarantee loans under title III 

17 of the Defense Production Act (50 U.S.C. App. 2091 et 

18 seq.) to eligible entities in accordance with this section. 

19 (b) ELIGIBILITY REQUIREMENTS.—The Secretary of 

20 Defense shall establish eligibility requirements for pur21 poses of the loans or loan guarantees under this section 

22 in order to provide assistance to any entity that— 

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


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1 (2) is a firm certified as eligible to apply for ad2 justment assistance under section 251(c) of the 

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

4 (3) meets one of the following criteria: 

5 (A) The entity mines, produces, or manu6 factures a nonavailable item. 

7 (B) The entity is the last remaining manu8 facturer of an item in the United States, as de9 termined by the Secretary of Defense, and can 

10 prove hardship because of foreign competition. 

11 (C) The entity is the last remaining manu12 facturer of an item in the United States and 

13 that item is considered to be vital for national 

14 security purposes by the Department of De15 fense or another department or agency of the 

16 United States. 

17 (c) AMOUNT OF LOAN OR LOAN GUARANTEE.—The 

18 amount of any loan made or guaranteed under this section 

19 may not exceed $5,000,000 per entity. 

20 (d) USE OF FUNDS.—Each eligible entity receiving 

21 a loan or loan guarantee under this section shall use the 

22 funds of the loan made or guaranteed only for one or more 

23 of the following purposes: 

24 (1) Increasing its ability to compete for a Gov25 ernment contract for a nonavailable item. 


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1 (2) Increasing its ability to produce a nonavail2 able item. 

3 (3) Increasing its capacity to produce items 

4 that are vital to national security. 

5 (e) APPLICATION REQUIREMENTS.—To receive a 

6 loan or loan guarantee under this section, an eligible entity 

7 shall submit an application to the Secretary of Defense 

8 at such time, in such manner, and containing such infor9 mation as the Secretary may require. At a minimum, the 

10 application shall include a statement regarding the num11 ber of direct full-time domestic jobs expected to be created 

12 or retained as a result of the loan made or guaranteed, 

13 but such statement shall not be the sole factor used in 

14 determining the award of the loan or loan guarantee. 

15 (f) ANNUAL EVALUATION OF LOAN OR LOAN GUAR16 ANTEE RECIPIENTS BY DEPARTMENT OF DEFENSE.— 

17 The Secretary of Defense each year shall evaluate recipi18 ents of loans or loan guarantees under this section to de19 termine the proper allocation of loan funds that are loaned 

20 or guaranteed. 

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

22 section, the term ‘‘nonavailable item’’ means any of the 

23 following: 

24 (1) An article, material, or supply— 


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1 (A) that has been determined by a Federal 

2 agency, pursuant to chapter 83 of title 41, 

3 United States Code (popularly referred to as 

4 the Buy American Act), to not be mined, pro5 duced, or manufactured in the United States in 

6 sufficient and reasonably available commercial 

7 quantities of a satisfactory quality; or 

8 (B) that is listed on the list of nonavailable 

9 articles under subpart 25.104 of the Federal 

10 Acquisition Regulation. 

11 (2) An article or item— 

12 (A) that is described in section 2533a(b) of 

13 title 10, United States Code, and grown, re14 processed, reused, or produced in the United 

15 States; and 

16 (B) satisfactory quality and sufficient 

17 quantity of which cannot be procured as and 

18 when needed at United States market prices, as 

19 determined by the Secretary of Defense or the 

20 Secretary of the military department concerned, 

21 pursuant to section 2533a(c) of such title. 

22 (3) Compliant specialty metal— 

23 (A) as defined in section 2533b(b) of title 

24 10, United States Code; and 


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1 (B) satisfactory quality and sufficient 

2 quantity of which, and in the required form, 

3 cannot be procured as and when needed, as de4 termined by the Secretary of Defense or the 

5 Secretary of the military department concerned, 

6 pursuant to such section 2533b(b). 

7 (4) An item listed in subsection (a) of section 

8 2534 of title 10, United States Code, if the Sec9 retary determines, under subsection (d)(4) of such 

10 section, that satisfactory quality of the item manu11 factured by an entity that is part of the national 

12 technology and industrial base (as defined in section 

13 2500(1) of such title) is not available. 

Æ 


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