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S03908 Summary:

BILL NOS03908
 
SAME ASNo Same As
 
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 in the United States.
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S03908 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3908
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                    February 1, 2021
                                       ___________
 
        Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Procurement and Contracts
 
        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 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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07974-01-1

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

        S. 3908                             3
 
     1  um chloride, used or supplied in the performance of the contract or  any
     2  subcontract thereto shall be mined in the United 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 in the United States; or
    43    (ii)  represented  that  any  rock  salt,  or  sodium chloride product
    44  procured in a contract to  which  this  section  applies  that  was  not
    45  produced  in  the United States, was produced in the United States; then
    46  that person shall be ineligible to receive any contract  or  subcontract
    47  with  this  state  pursuant  to  the  debarment or suspension provisions
    48  provided under section one hundred thirty-nine-a of  the  state  finance
    49  law.
    50    (h)  This  section  shall  be  applied in a manner consistent with the
    51  state's  obligations  under  any  applicable  international   agreements
    52  pertaining to government procurement.
    53    2.  Definitions. For the purposes of this section, the following words
    54  shall have the following meanings unless specified otherwise:
    55    (a) "Executive" means the executive head of a public agency subject to
    56  this section;

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

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

        S. 3908                             6

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