II 113th CONGRESS 2d Session S. 2391 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. Short title This Act may be cited as the 21st Century Buy American Act . 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. . 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). . 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. . 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. 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.