Legal News & Articles
"Buy American" provision of US bill may buy little trouble
Initial versions of the "Buy American" provision of the US stimulus bill raised concern, and outcries, from US trade partners, raising the potential of disputes under the WTO, NAFTA and other trade agreements, but the final version of the "Buy American" provision (shown below) of the American Recovery and Reinvestment Act of 2009 is less likely to generate major trade battles.
BUY AMERICAN
SEC. 1605. Use of American Iron, Steel and Manufactured Goods
(a) None of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public, unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.
(b) Subsection (a) shall not apply in any case or category of cases in which the head of the federal department or agency involved finds that --
(1) applying subsection (a) would be inconsistent with the public interest;
(2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or
(3) inclusion of iron, steel, and manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.
(c) If the head of a Federal department or agency determines that it is necessary to waive the application of subsection based on a finding under subsection (b), the head of the department or agency shall publish in the Federal Register a detailed written justification as to why the provision is being waived.
(d) this section shall be applied in a manner consistent with United States obligations under international agreements.
The Conference Report on the bill provides an intended clarification for use of the provision:
Section 1605 provides for the use of American iron, steel and manufactured goods, except in certain instances. Section 1605(d) is not intended to repeal by implication the President's authority under Title III of the Trade Agreements Act of 1979. The conferees anticipate that the Administration will rely on the authority under 19 U.S.C. 2511(b) [of the Trade Agreements Act of 1979] to the extent necessary to comply with U.S. obligations under the WTO Agreement on Government Procurement and under U.S. free trade agreements and so that section 1605 will not apply to least developed countries to the same extent that it does not apply to the parties to those international agreements. The conferees also note that waiver authority under section 2511(b)(2) has not been used.
It would seem that the provision, in its final form, will avoid retaliation or challenges related to US trade agreements.
Featured Expert
Expert Witness referrals United States and Internationally. This is a free referral to attorney, barristers and insurance companies. View full CVs of experts on-line. Chula Vista, California