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S03908 Summary:

BILL NOS03908A
 
SAME ASSAME AS A07919
 
SPONSORKENNEDY
 
COSPNSRGALLIVAN
 
MLTSPNSR
 
Add §162-a, St Fin L; add §104-d, Gen Muni L; add §2877-a, Pub Auth L; add §12-a, Hway L
 
Enacts the New York state buy American salt act to ensure all rock salt, or sodium chloride, used or supplied in the performance of a government contract or any subcontract thereto within the state shall be mined or hand harvested in the United States.
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S03908 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3908--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    February 1, 2021
                                       ___________
 
        Introduced by Sens. KENNEDY, GALLIVAN -- read twice and ordered printed,
          and  when  printed to be committed to the Committee on Procurement and
          Contracts -- committee discharged, bill amended, ordered reprinted  as
          amended and recommitted to said committee
 
        AN  ACT  to  amend the state finance law, the general municipal law, the
          public authorities law and the highway law, in  relation  to  enacting
          the New York state buy American salt act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "New York state buy American salt act".
     3    § 2. The state finance law is amended by adding a new section 162-a to
     4  read as follows:
     5    §  162-a. The New York state buy American salt act. 1. Use of American
     6  materials.   (a)  Notwithstanding  any  other  provision  of  law,  each
     7  contract  for  purchase  or  procurement  made  by a public agency shall
     8  contain a provision that the rock salt,  or  sodium  chloride,  used  or
     9  supplied  in  the performance of the contract or any subcontract thereto
    10  shall be mined or hand harvested in the United States.
    11    (b) For the purposes of section one hundred sixty-three of this  arti-
    12  cle, no bidder shall be deemed to be the lowest responsible and reliable
    13  bidder  and no bid shall be deemed the best value unless the bid offered
    14  by such bidder will comply with the contract term required by  paragraph
    15  (a) of this subdivision.
    16    (c)  The  provisions  of  paragraph  (a) of this subdivision shall not
    17  apply in any case or category of cases in which the executive head of  a
    18  public agency finds:
    19    (i)  that  the  application of this section would be inconsistent with
    20  the public interest;
    21    (ii) that such materials and products are not produced in  the  United
    22  States in sufficient and reasonably available quantities and of a satis-
    23  factory quality; or
    24    (iii)  that  inclusion  of domestic material will increase the cost of
    25  the overall procurement contract by more than twenty-five percent.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07974-02-1

        S. 3908--A                          2
 
     1    (d) If the executive receives a request for a waiver  under  paragraph
     2  (c)  of  this  subdivision, the executive shall provide notice of and an
     3  opportunity for public comment on  the  request  at  least  thirty  days
     4  before making a finding based on the request.
     5    (e) A notice provided under paragraph (d) of this subdivision shall:
     6    (i)  summarize  the  information available to the executive concerning
     7  the request, including whether the request is being made under  subpara-
     8  graph (i), (ii) or (iii) of paragraph (c) of this subdivision;
     9    (ii) be posted prominently on the official public internet web site of
    10  the agency; and
    11    (iii)  be  provided  by electronic means to any person, firm or corpo-
    12  ration that has made a written or electronic request to the public agen-
    13  cy for notice of waiver actions by the executive within five years prior
    14  to the date of notice.
    15    (f) If the executive issues a  waiver  under  paragraph  (c)  of  this
    16  subdivision,  the  executive  shall  publish  in  the same manner as the
    17  original notice a detailed justification for the waiver that:
    18    (i) addresses the public comments received under paragraph (d) of this
    19  subdivision; and
    20    (ii) is published before the waiver takes effect.
    21    (g) If it has been determined by a court or federal  or  state  agency
    22  that any person intentionally:
    23    (i)  affixed  a  label bearing a "Made in America" inscription, or any
    24  inscription with the same meaning, to any rock salt, or sodium  chloride
    25  product  used  in  projects  to  which  this section applies, sold in or
    26  shipped to the United States that was not mined or hand harvested in the
    27  United States; or
    28    (ii) represented that  any  rock  salt,  or  sodium  chloride  product
    29  procured  in  a  contract  to  which  this  section applies that was not
    30  produced in the United States, was produced in the United  States;  then
    31  that  person  shall be ineligible to receive any contract or subcontract
    32  with this state pursuant  to  the  debarment  or  suspension  provisions
    33  provided under section one hundred thirty-nine-a of this chapter.
    34    (h)  This  section  shall  be  applied in a manner consistent with the
    35  state's  obligations  under  any  applicable  international   agreements
    36  pertaining to government procurement.
    37    2.  Definitions. For the purposes of this section, the following words
    38  shall have the following meanings unless specified otherwise:
    39    (a) "Executive" means the executive head of a public agency subject to
    40  this section;
    41    (b) "Public agency" means  a  governmental  entity  as  that  term  is
    42  defined in section one hundred thirty-nine-j of this chapter;
    43    (c) "Mined or hand harvested in the United States" means: extracted or
    44  collected  from  land or ponds within the boundary of the United States,
    45  from the initial separation from the earth through the addition  of  any
    46  additives necessary for commercial sale;
    47    (d)  "United  States"  means the United States of America and includes
    48  all territory, continental or insular, subject to  the  jurisdiction  of
    49  the United States.
    50    §  3.  The  general  municipal  law is amended by adding a new section
    51  104-d to read as follows:
    52    § 104-d. The New York state buy American salt act. 1. Use of  American
    53  materials.    (a)  Notwithstanding  any  other  provision  of  law, each
    54  contract for purchase or procurement made by a public agency of a  poli-
    55  tical subdivision shall contain a provision that the rock salt, or sodi-
    56  um  chloride, used or supplied in the performance of the contract or any

        S. 3908--A                          3
 
     1  subcontract thereto shall be mined  or  hand  harvested  in  the  United
     2  States.
     3    (b)  No  bidder shall be deemed to be the lowest responsible and reli-
     4  able bidder and no bid shall be deemed the best  value  unless  the  bid
     5  offered  by  such  bidder will comply with the contract term required by
     6  paragraph (a) of this subdivision.
     7    (c) The provisions of paragraph (a)  of  this  subdivision  shall  not
     8  apply  in any case or category of cases in which the executive head of a
     9  public agency finds:
    10    (i) that the application of this section would  be  inconsistent  with
    11  the public interest;
    12    (ii)  that  such materials and products are not produced in the United
    13  States in sufficient and reasonably available quantities and of a satis-
    14  factory quality; or
    15    (iii) that inclusion of domestic material will increase  the  cost  of
    16  the overall procurement contract by more than twenty-five percent.
    17    (d)  If  the executive receives a request for a waiver under paragraph
    18  (c) of this subdivision, the executive shall provide notice  of  and  an
    19  opportunity  for  public  comment  on  the  request at least thirty days
    20  before making a finding based on the request.
    21    (e) A notice provided under paragraph (d) of this subdivision shall:
    22    (i) summarize the information available to  the  executive  concerning
    23  the  request, including whether the request is being made under subpara-
    24  graph (i), (ii) or (iii) of paragraph (c) of this subdivision;
    25    (ii) be posted prominently on the official public internet web site of
    26  the agency; and
    27    (iii) be provided by electronic means to any person,  firm  or  corpo-
    28  ration that has made a written or electronic request to the public agen-
    29  cy for notice of waiver actions by the executive within five years prior
    30  to the date of notice.
    31    (f)  If  the  executive  issues  a  waiver under paragraph (c) of this
    32  subdivision, the executive shall publish  in  the  same  manner  as  the
    33  original notice a detailed justification for the waiver that:
    34    (i) addresses the public comments received under paragraph (d) of this
    35  subdivision; and
    36    (ii) is published before the waiver takes effect.
    37    (g)  If  it  has been determined by a court or federal or state agency
    38  that any person intentionally:
    39    (i) affixed a label bearing a "Made in America"  inscription,  or  any
    40  inscription  with the same meaning, to any rock salt, or sodium chloride
    41  product used in projects to which  this  section  applies,  sold  in  or
    42  shipped to the United States that was not mined or hand harvested in the
    43  United States; or
    44    (ii)  represented  that  any  rock  salt,  or  sodium chloride product
    45  procured in a contract to  which  this  section  applies  that  was  not
    46  produced  in  the United States, was produced in the United States; then
    47  that person shall be ineligible to receive any contract  or  subcontract
    48  with  this  state  pursuant  to  the  debarment or suspension provisions
    49  provided under section one hundred thirty-nine-a of  the  state  finance
    50  law.
    51    (h)  This  section  shall  be  applied in a manner consistent with the
    52  state's  obligations  under  any  applicable  international   agreements
    53  pertaining to government procurement.
    54    2.  Definitions. For the purposes of this section, the following words
    55  shall have the following meanings unless specified otherwise:

        S. 3908--A                          4
 
     1    (a) "Executive" means the executive head of a public agency subject to
     2  this section;
     3    (b)  "Public  agency"  means  a  governmental  entity  as that term is
     4  defined in section one hundred thirty-nine-j of the state finance law;
     5    (c) "Mined or hand harvested in the United States" means: extracted or
     6  collected from land or ponds within the boundary of the  United  States,
     7  from  the  initial separation from the earth through the addition of any
     8  additives necessary for commercial sale;
     9    (d) "United States" means the United States of  America  and  includes
    10  all  territory,  continental  or insular, subject to the jurisdiction of
    11  the United States.
    12    § 4. The public authorities law is amended by  adding  a  new  section
    13  2877-a to read as follows:
    14    § 2877-a. The New York state buy American salt act. 1. Use of American
    15  materials.    (a)  Notwithstanding  any  other  provision  of  law, each
    16  contract for purchase or procurement made by a  public  authority  shall
    17  contain  a  provision  that  the  rock salt, or sodium chloride, used or
    18  supplied in the performance of the contract or any  subcontract  thereto
    19  shall be mined or hand harvested in the United States.
    20    (b)  No  bidder shall be deemed to be the lowest responsible and reli-
    21  able bidder and no bid shall be deemed the best  value  unless  the  bid
    22  offered  by  such  bidder will comply with the contract term required by
    23  paragraph (a) of this subdivision.
    24    (c) The provisions of paragraph (a)  of  this  subdivision  shall  not
    25  apply  in any case or category of cases in which the executive head of a
    26  public agency finds:
    27    (i) that the application of this section would  be  inconsistent  with
    28  the public interest;
    29    (ii)  that  such materials and products are not produced in the United
    30  States in sufficient and reasonably available quantities and of a satis-
    31  factory quality; or
    32    (iii) that inclusion of domestic material will increase  the  cost  of
    33  the overall procurement contract by more than twenty-five percent.
    34    (d)  If  the executive receives a request for a waiver under paragraph
    35  (c) of this subdivision, the executive shall provide notice  of  and  an
    36  opportunity  for  public  comment  on  the  request at least thirty days
    37  before making a finding based on the request.
    38    (e) A notice provided under paragraph (d) of this subdivision shall:
    39    (i) summarize the information available to  the  executive  concerning
    40  the  request, including whether the request is being made under subpara-
    41  graph (i), (ii) or (iii) of paragraph (c) of this subdivision;
    42    (ii) be posted prominently on the official public internet web site of
    43  the agency; and
    44    (iii) be provided by electronic means to any person,  firm  or  corpo-
    45  ration that has made a written or electronic request to the public agen-
    46  cy for notice of waiver actions by the executive within five years prior
    47  to the date of notice.
    48    (f)  If  the  executive  issues  a  waiver under paragraph (c) of this
    49  subdivision, the executive shall publish  in  the  same  manner  as  the
    50  original notice a detailed justification for the waiver that:
    51    (i) addresses the public comments received under paragraph (d) of this
    52  subdivision; and
    53    (ii) is published before the waiver takes effect.
    54    (g)  If  it  has been determined by a court or federal or state agency
    55  that any person intentionally:

        S. 3908--A                          5
 
     1    (i) affixed a label bearing a "Made in America"  inscription,  or  any
     2  inscription  with the same meaning, to any rock salt, or sodium chloride
     3  product used in projects to which  this  section  applies,  sold  in  or
     4  shipped to the United States that was not mined or hand harvested in the
     5  United States; or
     6    (ii)  represented  that  any  rock  salt,  or  sodium chloride product
     7  procured in a contract to  which  this  section  applies  that  was  not
     8  produced  in  the United States, was produced in the United States; then
     9  that person shall be ineligible to receive any contract  or  subcontract
    10  with  this  state  pursuant  to  the  debarment or suspension provisions
    11  provided under section one hundred thirty-nine-a of  the  state  finance
    12  law.
    13    (h)  This  section  shall  be  applied in a manner consistent with the
    14  state's  obligations  under  any  applicable  international   agreements
    15  pertaining to government procurement.
    16    2.  Definitions. For the purposes of this section, the following words
    17  shall have the following meanings unless specified otherwise:
    18    (a) "Executive" means the executive head of a public agency subject to
    19  this section;
    20    (b) "Public agency" means a state, local or  interstate  authority  as
    21  those terms are defined in section two of this chapter;
    22    (c) "Mined or hand harvested in the United States" means: extracted or
    23  collected  from  land or ponds within the boundary of the United States,
    24  from the initial separation from the earth through the addition  of  any
    25  additives necessary for commercial sale;
    26    (d)  "United  States"  means the United States of America and includes
    27  all territory, continental or insular, subject to  the  jurisdiction  of
    28  the United States.
    29    §  5.  The highway law is amended by adding a new section 12-a to read
    30  as follows:
    31    § 12-a. The New York state buy American salt act. 1. Use  of  American
    32  materials. (a) Notwithstanding any other provision of law, each contract
    33  for  purchase  or procurement made by a public authority shall contain a
    34  provision that the rock salt, or sodium chloride, used  or  supplied  in
    35  the  performance  of  the  contract  or any subcontract thereto shall be
    36  mined or hand harvested in the United States.
    37    (b) No bidder shall be deemed to be the lowest responsible  and  reli-
    38  able  bidder  and  no  bid shall be deemed the best value unless the bid
    39  offered by such bidder will comply with the contract  term  required  by
    40  paragraph (a) of this subdivision.
    41    (c)  The  provisions  of  paragraph  (a) of this subdivision shall not
    42  apply in any case or category of cases in which the executive head of  a
    43  public agency finds:
    44    (i)  that  the  application of this section would be inconsistent with
    45  the public interest;
    46    (ii) that such materials and products are not produced in  the  United
    47  States in sufficient and reasonably available quantities and of a satis-
    48  factory quality; or
    49    (iii)  that  inclusion  of domestic material will increase the cost of
    50  the overall procurement contract by more than twenty-five percent.
    51    (d) If the executive receives a request for a waiver  under  paragraph
    52  (c)  of  this  subdivision, the executive shall provide notice of and an
    53  opportunity for public comment on  the  request  at  least  thirty  days
    54  before making a finding based on the request.
    55    (e) A notice provided under paragraph (d) of this subdivision shall:

        S. 3908--A                          6
 
     1    (i)  summarize  the  information available to the executive concerning
     2  the request, including whether the request is being made under  subpara-
     3  graph (i), (ii) or (iii) of paragraph (c) of this subdivision;
     4    (ii) be posted prominently on the official public internet web site of
     5  the agency; and
     6    (iii)  be  provided  by electronic means to any person, firm or corpo-
     7  ration that has made a written or electronic request to the public agen-
     8  cy for notice of waiver actions by the executive within five years prior
     9  to the date of notice.
    10    (f) If the executive issues a  waiver  under  paragraph  (c)  of  this
    11  subdivision,  the  executive  shall  publish  in  the same manner as the
    12  original notice a detailed justification for the waiver that:
    13    (i) addresses the public comments received under paragraph (d) of this
    14  subdivision; and
    15    (ii) is published before the waiver takes effect.
    16    (g) If it has been determined by a court or federal  or  state  agency
    17  that any person intentionally:
    18    (i)  affixed  a  label bearing a "Made in America" inscription, or any
    19  inscription with the same meaning, to any rock salt, or sodium  chloride
    20  product  used  in  projects  to  which  this section applies, sold in or
    21  shipped to the United States that was not mined or hand harvested in the
    22  United States; or
    23    (ii) represented that  any  rock  salt,  or  sodium  chloride  product
    24  procured  in  a  contract  to  which  this  section applies that was not
    25  produced in the United States, was produced in the United  States;  then
    26  that  person  shall be ineligible to receive any contract or subcontract
    27  with this state pursuant  to  the  debarment  or  suspension  provisions
    28  provided  under  section  one hundred thirty-nine-a of the state finance
    29  law.
    30    (h) This section shall be applied in  a  manner  consistent  with  the
    31  state's   obligations  under  any  applicable  international  agreements
    32  pertaining to government procurement.
    33    2. Definitions. For the purposes of this section, the following  words
    34  shall have the following meanings unless specified otherwise:
    35    (a) "Executive" means the executive head of a public agency subject to
    36  this section;
    37    (b)  "Public  agency"  means  a  governmental  entity  as that term is
    38  defined in section one hundred thirty-nine-j of the state finance law;
    39    (c) "Mined or hand harvested in the United States" means: extracted or
    40  collected from land or ponds within the boundary of the  United  States,
    41  from  the  initial separation from the earth through the addition of any
    42  additives necessary for commercial sale;
    43    (d) "United States" means the United States of  America  and  includes
    44  all  territory,  continental  or insular, subject to the jurisdiction of
    45  the United States.
    46    § 6. Severability. If any provision of this act, or any application of
    47  any provision of this act, is held to be invalid, that shall not  affect
    48  the  validity or effectiveness of any other provision of this act, or of
    49  any other application of any provision of this act, which can  be  given
    50  effect  without  that  provision  or  application;  and to that end, the
    51  provisions and applications of this act are severable.
    52    § 7. This act shall take effect immediately.
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