United States of America: Buy American provisions and set-asides in the Fiscal Year 2010 defense appropriations bill.
Provisions were considered for the National Defense Authorization Act for Fiscal Year 2010 that could include provisions that set either Buy American requirements or otherwise imply set-asides or protection for U.S. providers of goods or services. The version approved by the House of Representatives is the “National Defense Authorization Act for Fiscal Year 2010” (H.R.2647); it included three provisions described below. With one partial exception, there are no corresponding provisions in the Senate version, which (like the House bill) was also known as the "National Defense Authorization Act for Fiscal Year 2010" (S.1390). Most of these provisions were stripped from the bill before it was finally approved as Public Law 111-84.
Both bills would deal with provisions of existing law (section 2473 of title 10, United States Code) that aim to preserve the small arms production industrial base by directing that the Secretary of Defense generally require that any procurement of property or services related to certain repairs or modification of small arms “be made only from a firm in the small arms production industrial base.” A provision in the Senate bill (section 832) would direct the Secretary of Defense to review the list of firms that are included in this case, and authorize him to modify the list. Section 817 of the House bill would redefine the term “small arms production industrial base” to mean “the persons and organizations that are engaged in the production or maintenance of small arms within the United States.” The existing definition did not explicitly refer to entities “within the United States.” Second, the bill would expand the range of weapons that are defined as small arms to include pistols. The existing law defined this category of weapons to include only five specific models (i.e., the M16 series rifle, the MK19 grenade machine gun, the M4 series carbine, the M240 series machine gun, and the M249 squad automatic weapon).
The final version of the bill calls for the Secretary of Defense to report to Congress by the end of March, 2010 on the small arms industrial base, and provides in section 818 that "After March 31, 2010, the Secretary of Defense may eliminate, modify, or add to the firms included in the small arms production industrial base, as defined in paragraph (1), as he determines appropriate to best ensure the competitive development, production, and maintenance of small arms for the Department of Defense."
Other, more restrictive provisions approved by the House were dropped before final enactment of the bill. Section 827 of the House bill, which had no corresponding provision in the Senate bill, would have amended subchapter III of chapter 147 of title 10, United States Code (which deals with “Morale, Welfare, and Recreation Programs and Nonappropriated Fund Instrumentalities”) to provide as follows:
§2495c. Requirement to buy military decorations and other uniform accouterments from American sources; exceptions
(a) BUY-AMERICAN REQUIREMENT.—A military exchange store or other nonappropriated fund instrumentality of the Department of Defense may not purchase for resale any military decorations, ribbons, badges, medals, insignia, and other uniform accouterments that are not produced in the United States. Competitive procedures shall be used in selecting the United States producer of the decorations.
(b) HERALDIC QUALITY CONTROL.—No certificate of authority (contained in part 507 of title 32, Code of Federal Regulations) for the manufacture and sale of any item reference [sic] in subsection (a) by the Institute of Heraldry, the Navy Clothing and Textile Research Facility, or the Marine Corps Combat Equipment and Support Systems for quality control and specifications purposes shall be permitted unless these items are from domestic material manufactured in the United States.
(c) EXCEPTION.—Subsections (a) and (b) do not apply to the extent that the Secretary of Defense determines that a satisfactory quality and sufficient quantity of an item covered by subsection (a) and produced in the United States cannot be procured at a reasonable cost.
This provision does not appear in the final bill.
Section 2834 of the House bill would also have set limits on the number of foreign workers that may be hired to work on construction projects in the relocation of facilities to Guam. There is no corresponding provision in the Senate bill. Section 2834 states in part that, “With respect to each construction project for which ground-breaking occurs before October 1, 2011 … not more than 30 percent of the total hours worked per month on the construction project may be performed by persons holding visas issued under” the H-2B program (a program allowing foreign nationals to enter into the United States temporarily and engage in nonagricultural employment that is seasonal, intermittent, a peak load need, or a one-time occurrence). The bill would also require that the contractor “advertise and solicit for construction workers in the United States, including territories in the Pacific region, in accordance with a recruitment plan created by the Secretary of Labor.” This provision does not appear in the final bill.
The House of Representatives approved its version of the bill on June 25, 2009 by a vote of 389 to 22. The Senate approved its version on July 23, 2009 by a vote of 87 to 7. After the two versions were reconciled and approved, President Obama signed it into law on October 28, 2009.
Any Evidence-Based Deliberation:
|Is there anything in the public record to suggest that evidence of the effectiveness of the proposed measure was considered during official deliberations?||No|
|Is there any evidence that alternatives to the proposed measure were considered?||No|
|Is there anything in the public record that suggests that empirical evidence informed the comparison across the alternatives available to government?||No|
|Was such evidence identified?||No|
|Is such evidence publicly available?||No|
|Did the official decision-maker in question provide an explanation as to why a chosen measure was favoured over alternatives?||No|
|Is there any evidence to suggest that potentially affected trading partners were consulted before the measures were taken?||No|
|Is there any evidence that safeguards have been put in place to ensure that implementation of the initiative is transparent and non-discriminatory?||No|
|Did the government state its intention to review the measure within one year of implementation?||No|
Date of inception:
GTA Evaluation: Amber
See the hyperlinked materials in the description above for the sources.