II 115th CONGRESS 1st Session S. 2196 IN THE SENATE OF THE UNITED STATES December 6, 2017 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 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). . 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 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 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. . 5. Waiver transparency and streamlining through the establishment of 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 establish 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 established 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 established 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 established 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. 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.