ANNOUNCED AS TEMPORARYNo
Two sections of an omnibus spending bill approved by Congress expand the scope of the Buy-American provisions in U.S. law. Both were included in the version of H.R.2847 that the House of Representatives approved on December 16, 2009, and (after approval by the Senate) remained in the final version (now Public Law 111-147) that President Obama signed into law on March 18, 2010.
One part of the bill (Title IV) is the 'Jobs for Main Street Act of 2010,' more commonly referred to as the 'jobs bill.' It provides for emergency and non-emergency funding (partly through the redirection of money originally appropriated under the Troubled Asset Relief Program). Among the largest spending items in the bill are $27.5 billion for highway infrastructure, $8.4 billion for public transportation, $4.1 billion for school renovation grants, and $2 billion for the Innovative Technology Loan Guarantee Program. Section 4002 of the bill specifies that, all of the funds are subject to the Buy-American requirements of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). (See the Global Trade Alert description of that earlier measure.)
Another part of H.R.2847 changes the terms of the Buy-American provisions that are applied to major infrastructure projects. Section 2013 of the bill would amend two existing sections of the U.S. Code (section 313 of Title 23 regarding highway projects, and section 5323(j) ofTitle 49 regarding public transportation) to establish new requirements for the issuance of waivers of the Buy-American provisions. These new requirements are clearly aimed to limit the authority of the Department of Transportation to award contracts to foreign providers of goods or services.
REQUIREMENTS FOR ISSUANCE OF WAIVERS.-
(1)PUBLIC INTEREST WAIVERS.-The Secretary may issue a waiver under subsection (b)(1) only after the Secretary has considered the potential impacts of the waiver on domestic manufacturing employment.
(2)INSUFFICIENT DOMESTIC SOURCE WAIVERS.-The Secretary may issue a waiver under subsection (b)(2) with respect to a material or product only if the Secretary publishes notice of the waiver on the Internet for a period of at least 5 business days prior to issuance of the waiver and a sufficient domestic source of the material or product does not identify itself during the period.
TRANSPARENCY OF WAIVERS.-
(1)IN GENERAL.-When the Secretary receives a written request for a waiver under this section, the Secretary shall-
(A)publish the request on the Internet within 5 business days of the date of receipt of the request; and
(B)if the Secretary decides to issue a waiver based on the request, publish on the Internet, within 30 days following the date of issuance of the waiver, a detailed written justification as to why the waiver is necessary, including an identification of the amount of Federal funds associated with the waiver.
(2)EMPLOYMENT IMPACT STATEMENT.-In issuing a waiver based on a finding under subsection3 (b)(1), the Secretary shall include, as part of the Secretary's written justification for the waiver decision, a statement detailing the short- and long-term impact of the decision on domestic manufacturing employment.
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