To amend the Buy American Act to increase the requirement for American-made content, to tighten the waiver provisions, and for other purposes.

January 28, 2004

Mr. BROWN of Ohio (for himself and Mr. RYAN of Ohio) introduced the following bill; which was referred to the Committee on Government Reform

To amend the Buy American Act to increase the requirement for American-made content, to tighten the waiver provisions, 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 `Buy American Improvement Act of 2004'.

SEC. 2. REQUIREMENTS FOR WAIVERS.

(a) In General- Section 2 of the Buy American Act (41 U.S.C. 10a) is amended--

(1) by striking `Notwithstanding' and inserting the following:

`(a) In General- Notwithstanding'; and

(2) by adding at the end the following:

`(b) Special Rules- The following rules shall apply in carrying out the provisions of subsection (a):

`(1) Public interest waiver- A determination that it is inconsistent with the public interest to enter into a contract in accordance with this Act may not be made after a notice of solicitation of offers for the contract is published in accordance with section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416) and section 8(e) of the Small Business Act (15 U.S.C. 637(e)).

`(2) Domestic bidder- A Federal agency entering into a contract shall give preference to a company submitting an offer on the contract that manufactures in the United States the article, material, or supply for which the offer is solicited, if--

`(A) that company's offer is substantially the same as an offer made by a company that does not manufacture the article, material, or supply in the United States; or

`(B) that company is the only company that manufactures in the United States the article, material, or supply for which the offer is solicited.

`(3) Use outside the united states-

`(A) In general- Subsection (a) shall apply without regard to whether the articles, materials, or supplies to be acquired are for use outside the United States if the articles, materials, or supplies are not needed on an urgent basis or if they are acquired on a regular basis.

`(B) Cost analysis- In any case where the articles, materials, or supplies are to be acquired for use outside the United States and are not needed on an urgent basis, before entering into a contract an analysis shall be made of the difference in the cost for 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 for 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) Domestic availability- The head of a Federal agency may not make a determination under subsection (a) that an article, material, or supply is not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available commercial quantities and of satisfactory quality, unless the head of the agency has conducted a study and, on the basis of such study, determined that--

`(A) domestic production cannot be initiated to meet the procurement needs; and

`(B) a comparable article, material, or supply is not available from a company in the United States.

`(5) Certain congressional purchases- Subsection (a) shall not apply with respect to a contract entered into by the office of a Member of the House of Representatives or the office of a Senator during a fiscal year if--

`(A) the funds used to make payment under the contract are derived from the Members' Representational Allowance under section 101(a) of the House of Representatives Administrative Reform and Technical Corrections Act (2 U.S.C. 57b) or the Senators' Official Personnel and Office Expense Account established under subsection (a) of the first section of Public Law 100-137 (2 U.S.C. 58c), as the case may be; and

`(B) the aggregate amount expended by the office during the year for the article, material, or supply which is the subject of the contract does not exceed $100.

`(c) Reports-

`(1) In general- Not later than 60 days after the end of each fiscal year, the head of each Federal agency shall submit to Congress a report on the amount of the acquisitions made by the agency from entities that manufacture the articles, materials, or supplies outside the United States in that fiscal year.

`(2) Content of report- The report required by paragraph (1) shall separately indicate the following information:

`(A) The dollar value of any articles, materials, or supplies for which this Act was waived.

`(B) An itemized list of all waivers granted with respect to such articles, materials, or supplies under this Act.

`(C) A list of all articles, materials, and supplies acquired, their source, and the amount of the acquisitions.

`(3) Public availability- The head of each Federal agency submitting a report under paragraph (1) shall make the report publicly available by posting on an Internet website.'.

(b) Definitions- Section 1 of the Buy American Act (41 U.S.C. 10c) is amended--

(1) by striking subsection (c) and inserting the following:

`(c) Federal Agency- The term `Federal agency' means any executive agency (as defined in section 4(1) of the Federal Procurement Policy Act (41 U.S.C. 403(1))) or any establishment in the legislative or judicial branch of the Government.'; and

(2) by adding at the end the following:

`(d) Substantially All- Articles, materials, or supplies shall be treated as made substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, if the cost of the domestic components of such articles, materials, or supplies exceeds 75 percent.'.

(c) Conforming Amendments-

(1) Section 2 of the Buy American Act (41 U.S.C. 10a) is amended by striking `department or independent establishment' and inserting `Federal agency'.

(2) Section 3 of such Act (41 U.S.C. 10b) is amended--

(A) by striking `department or independent establishment' in subsection (a), and inserting `Federal agency'; and

(B) by striking `department, bureau, agency, or independent establishment' in subsection (b) and inserting `Federal agency'.

(3) Section 633 of the National Military Establishment Appropriations Act, 1950 (41 U.S.C. 10d) is amended by striking `department or independent establishment' and inserting `Federal agency'.

(4) Section 69 of the Revised Statutes of the United States (2 U.S.C. 109) is repealed.

SEC. 3. DETERMINATIONS OF UNREASONABLE COST AND INCONSISTENT WITH THE PUBLIC INTEREST.

(a) In General- Not later than 1 year after the date of the enactment of this Act, the Secretary of Commerce shall prescribe final regulations establishing, for purposes of applying section 2(a) of the Buy American Act (41 U.S.C. 10a(a))--

(1) definitions for the terms `unreasonable cost' and `inconsistent with the public interest';

(2) purposes for which a waiver may be granted under such section based on unreasonable cost or on inconsistency with the public interest; and

(3) procedures for all Federal agencies covered by the Act to consistently apply the waivers described in paragraph (2).

(b) Advisory Panel- Not later than 30 days after the date of the enactment of this Act, the Secretary shall appoint a panel to be known as the `Buy American Advisory Panel' consisting of members as follows:

(1) The Administrator of General Services or the Administrator's designee, who shall serve as Chairman.

(2) The Secretary of Defense or the Secretary's designee.

(3) A representative of the manufacturing industry who is employed by a manufacturing business that produces the majority of its goods in the United States and is a Federal contractor at the time of appointment to the panel.

(4) A representative of the services industry who is employed by a services business that provides the majority of its services to clients in the United States and is a Federal contractor at the time of appointment to the panel.

(5) A representative of labor in the manufacturing industry.

(6) A representative of labor in the services industry.

(7) An academic economist.

(c) Compensation and Expenses- The Secretary of Commerce shall provide the support services, facilities, and funds necessary for the performance of the Advisory Panel's functions. No member may receive compensation for service as a member of the Advisory Panel, but a member of the Advisory Panel who is not a government employee may receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code.

(d) Report- The Chairman of the Advisory Panel shall, not later than 180 days after the date of the enactment of this Act, submit to the Secretary of Commerce a report making recommendations for implementing the requirements of subsection (a).

SEC. 4. DUAL-USE TECHNOLOGIES.

The head of a Federal agency (as defined in section 1(c) of the Buy American Act (as amended by section 2)) may not enter into a contract, nor permit a subcontract under a contract of the Federal agency, with a foreign entity that involves giving the foreign entity plans, manuals, or other information that would facilitate the manufacture of a dual-use item on the Commerce Control List unless approval for providing such plans, manuals, or information has been obtained in accordance with the provisions of the Export Administration Act of 1979 (50 U.S.C. App. 2401 et seq.) and the Export Administration Regulations (15 C.F.R. part 730 et seq.).

END