Enacts the "New York Buy American act"; provides that all contracts over one million dollars in value and made and awarded by any department or agency of the state for the construction, reconstruction, alteration, repair, maintenance or improvement of any roads or bridges shall contain a provision that the iron, steel and concrete used or supplied in the performance of the contract or any subcontract thereto and permanently incorporated into such road or bridge, shall be produced or made in whole or substantial part in the United States, its territories or possessions; enacts provisions relating to a working group between NYS and Canada.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8427A
SPONSOR: Morelle (MS) TITLE OF BILL: An act to amend the state finance law and the public
authorities law, in relation to enacting the "New York Buy American
Act"; and providing for the repeal of such provisions upon expiration
thereof
PURPOSE:
The purpose of this bill is to ensure that surface roads and bridges are
constructed with American made iron and steel.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 - Provides that the short title of the bill is known as "New
York Buy American Act".
Section 2 and 3 - Section 146 of the state finance law and section2603-a
of the public authorities law are amended to provide that all contracts
over $1 million for the construction and reconstruction of surface roads
and bridges awarded by the department of transportation, the office of
general services, the State University of New York construction fund,
the dormitory authority, the metropolitan transportation authority, the
bridge authority, or the thruway authority must include a provision
requiring that all structural iron and steel used be made in the United
States. The requirement also applies to the initial melting stage
through the application of coatings, but not metallurgical processes
involving the refinement of steel additives.
These sections also provides certain exceptions to Buy American, includ-
ing that it would result in the loss, reduction or ability to obtain
federal funding, that there is an immediate or emergency need existing
for the structural steel or structural iron, that the structural steel
or structural iron is not manufactured in the United States in suffi-
cient and reasonably available quantities or of satisfactory quality or
design to meet the project requirements, that obtaining such steel or
iron in the United States would increase the cost of the contract by an
unreasonable amount, that the steel or iron is necessary for the opera-
tion of or repairs of critical infrastructure that is necessary to avoid
a delay in the delivery of critical services that could compromise the
public welfare, and that a reciprocal trade agreement or treaty has been
negotiated by the state or by the United States government on behalf of
or including this state with a foreign nation or government for nondis-
criminatory governmental procurement practices or policies with such
foreign nation or government.
These sections also provide that agencies and authorities covered under
this act shall be authorized to establish rules and regulations for the
effective administration of Buy American, provided however, that nothing
shall be interpreted to require a contractor to certify that the iron or
steel used in a road or bridge project pursuant to the Buy American
requirements is made in whole or in substantial part in the United
States
Section 4 - This section provides that a workgroup shall be convened to
evaluate: reciprocal trade access for any foreign state that may be
significantly impacted by the implementation of Buy American to the
detriment of New York state; the provisions of any formal trade agree-
ments established by the governments of the United States and such
foreign state; the expansion of the application of Buy American to
include other products manufactured in the United States, which shall
include but not be limited to concrete, cement and aluminum; the certif-
ication processes for these products; and the fiscal impact of the
implementation and expansion of Buy American. Additionally, the work-
group shall report on the impact of Buy American on the capital plans of
the department of transportation, the metropolitan transportation
authority, and the thruway authority, including but not limited to any
amendments to such capital plans necessary as a result of Buy American,
any change in cost of projects as a result Buy American, and any cost
savings discernible due to quality improvements or maintenance
reductions due to materials used as a result of Buy American. The work-
group shall provide an interim report on their findings on or before
January 1, 2019 and a final report on January 1, 2020.
Section 5 - Provides for the effective date.
JUSTIFICATION:
The economy and general welfare of the State and its people and the
economy and general welfare of the United States are inseparably linked
to the preservation and development of iron and steel in this State, as
well as all the other states of this nation. Recognizing this link, it
should be the policy of this State that its taxpayer dollars be rein-
vested with its individual and employer tax in order to foster job
retention and growth, particularly_- within this sector, and to ensure a
broad and healthy tax and user base for future investments vital to the
State's infrastructure.
The production of iron and steel products provides jobs and family
income to many individuals in this country and State and, in turn, to
millions of persons in the United States. It is important to keep a
rigorous iron and steel production industry in the United States because
it is vital to the economic welfare of the country.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT:
To be determined.
EFFECTIVE DATE:
This act shall take effect April 1, 2018 and shall apply to any state
contracts executed and entered into on or after such date and shall
exclude such contracts that have been previously awarded or have pending
bids or pending requests for proposals issued as of April 1, 2018, and
shall not apply to projects that have commenced project design and envi-
ronmental studies prior to such date; provided, however, that this act
shall expire and be deemed repealed April 15, 2020.
STATE OF NEW YORK
________________________________________________________________________
8427--A
2017-2018 Regular Sessions
IN ASSEMBLY
June 15, 2017
___________
Introduced by M. of A. MORELLE, BRAUNSTEIN, GOTTFRIED, ENGLEBRIGHT,
BRINDISI, MOSLEY, STIRPE, SKOUFIS, ARROYO, JAFFEE, CYMBROWITZ, TITONE,
MAYER, ROZIC, ZEBROWSKI, CUSICK, GALEF, GUNTHER, LUPARDO, MAGNARELLI,
OTIS, PERRY, SANTABARBARA, BRONSON, MOYA, QUART, FARRELL, ABBATE,
BARRETT, STECK, HOOPER, FAHY, LIFTON, KEARNS, RYAN, JOYNER, ABINANTI,
ROSENTHAL, BLAKE -- Multi-Sponsored by -- M. of A. BARNWELL, COOK,
GRAF, LUPINACCI, MAGEE, McDONOUGH, MONTESANO, RAIA, RAMOS, RIVERA,
SIMON, THIELE -- read once and referred to the Committee on Govern-
mental Operations -- reference changed to the Committee on Ways and
Means -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the state finance law and the public authorities law, in
relation to enacting the "New York Buy American Act"; and providing
for the repeal of such provisions upon expiration thereof
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 Buy American Act".
3 § 2. Section 146 of the state finance law, as added by chapter 1014 of
4 the laws of 1981, is amended to read as follows:
5 § 146. Certain construction contracts involving steel. 1. Notwith-
6 standing any other provisions of law, all contracts over one hundred
7 thousand dollars in value made and awarded by any department or agency
8 of the state for the construction, reconstruction, alteration, repair,
9 maintenance or improvement of any public works shall require that struc-
10 tural steel, reinforcing steel and/or other major steel items to be
11 incorporated in the work of the contract shall be produced or made in
12 whole or substantial part in the United States, its territories or
13 possessions.
14 2. Notwithstanding the provisions of subdivision one of this section,
15 all contracts over one million dollars in value and made and awarded by
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13106-10-7
A. 8427--A 2
1 the department of transportation, the office of general services, and
2 the state university of New York construction fund for the construction,
3 reconstruction, alteration, repair, maintenance or improvement of any
4 surface roads or bridges, shall contain a provision that the structural
5 iron and structural steel used or supplied in the performance of the
6 contract or any subcontract thereto and permanently incorporated into
7 such surface road or bridge, shall be produced or made in whole or
8 substantial part in the United States, its territories or possessions.
9 In the case of a structural iron or structural steel product all manu-
10 facturing must take place in the United States, from the initial melting
11 stage through the application of coatings, except metallurgical proc-
12 esses involving the refinement of steel additives. For the purposes of
13 this section, "permanently incorporated" shall mean an iron or steel
14 product that is required to remain in place at the end of the project
15 contract, in a fixed location, affixed to the public work to which it
16 was incorporated. Iron and steel products that are capable of being
17 moved from one location to another are not permanently incorporated into
18 a public work.
19 3. The provisions of this section shall not apply if the head of the
20 department or agency constructing the public works, in his or her sole
21 discretion, determines that such provisions would not be in the public
22 interest, would result in unreasonable costs or that such iron or steel,
23 including without limitation structural iron and structural steel,
24 cannot be produced or made in the United States in sufficient and
25 reasonably available quantities and of satisfactory quality[.], or would
26 result in the loss or reduction of federal funding for the subject
27 contract or the ability to obtain such federal funding would be limited
28 or jeopardized by compliance with this section; or there is an immedi-
29 ate or emergency need existing for the structural steel or structural
30 iron; or the structural steel or structural iron is not manufactured in
31 the United States in sufficient and reasonably available quantities or
32 of satisfactory quality or design to meet the department's or agency's
33 requirements; or obtaining such steel or iron in the United States would
34 increase the cost of the contract by an unreasonable amount; or such
35 steel or iron is necessary for the operation of or repairs of critical
36 infrastructure that is necessary to avoid a delay in the delivery of
37 critical services that could compromise the public welfare; or a recip-
38 rocal trade agreement or treaty has been negotiated by the state or by
39 the United States government on behalf of or including this state with a
40 foreign nation or government for nondiscriminatory governmental procure-
41 ment practices or policies with such foreign nation or government.
42 4. Nothing in this section is intended to contravene any existing
43 treaties, laws, trade agreements, or regulations of the United States or
44 subsequent trade agreements entered into between any foreign countries
45 and the state or the United States.
46 5. Any agency subject to the provisions of this section shall be
47 authorized to establish rules and regulations for the effective adminis-
48 tration of this section, provided however, nothing in this section shall
49 be interpreted to require a contractor to certify that the structural
50 iron or structural steel used in a road or bridge pursuant to this
51 section is made in whole or in substantial part in the United States.
52 § 3. Section 2603-a of the public authorities law, as added by chapter
53 441 of the laws of 1983, is amended to read as follows:
54 § 2603-a. Letting of certain contracts involving steel products. 1.
55 Notwithstanding any other provision of law, all public authorities shall
56 award contracts involving steel products as follows:
A. 8427--A 3
1 a. All purchase contracts for supplies, material or equipment involv-
2 ing an estimated expenditure in excess of fifty thousand dollars shall
3 require with respect to materials, supplies and equipment made of,
4 fabricated from, or containing steel components, that such steel compo-
5 nents be produced or made in whole or substantial part in the United
6 States, its territories or possessions. The provisions of this paragraph
7 shall not apply to motor vehicles and automobile equipment assembled in
8 Canada in conformity with the United States-Canadian trade agreements
9 known as the "Automotive Products Trade Act of 1965" or any amendments
10 thereto.
11 b. All contracts in excess of one hundred thousand dollars for the
12 construction, reconstruction, alteration, repair, maintenance or
13 improvement of public works shall require that all structural steel,
14 reinforcing steel or other major steel items to be incorporated in the
15 work of the contract shall be produced or made in whole or substantial
16 part in the United States, its territories or possessions.
17 2. Notwithstanding the provisions of subdivision one of this section,
18 all contracts over one million dollars in value made and awarded by the
19 dormitory authority, the metropolitan transportation authority, the
20 bridge authority or the thruway authority, on its account or for the
21 benefit of a state agency or authority, for the construction, recon-
22 struction, alteration, repair, maintenance or improvement of any road or
23 bridge, shall contain a provision that the structural iron and struc-
24 tural steel used or supplied in the performance of the contract or any
25 subcontract thereto and permanently incorporated into the surface road
26 or bridge shall be produced or made in whole or substantial part in the
27 United States, its territories or possessions. In the case of a struc-
28 tural iron or structural steel product all manufacturing must take place
29 in the United States, from the initial melting stage through the appli-
30 cation of coatings, except metallurgical processes involving the refine-
31 ment of steel additives. For purposes of this section, "permanently
32 incorporated" shall mean an iron or steel product that is required to
33 remain in place at the end of the project contract, in a fixed location,
34 affixed to the public work to which it was incorporated. Iron and steel
35 products that are capable of being moved from one location to another
36 are not permanently incorporated into a public building or public work.
37 3. The provisions of this section shall not apply if the governing
38 board or body of such public authority, in its discretion, determines
39 that such provisions would result in unreasonable costs or that such
40 iron, steel products or steel components including without limitation
41 structural iron and steel; cannot be produced or made in the United
42 States in sufficient and reasonably available quantities or of satisfac-
43 tory quality or design[.], or would result in the loss or reduction of
44 federal funding for the subject contract or the ability to obtain such
45 federal funding would be limited or jeopardized by compliance with this
46 section; or there is an immediate or emergency need existing for such
47 structural iron, structural steel products or structural steel compo-
48 nents; or such steel or iron is not manufactured in the United States in
49 sufficient and reasonably available quantities or of satisfactory quali-
50 ty or design to meet the authority's requirements; or obtaining for such
51 iron, steel products or steel components in the United States would
52 increase the cost of the contract by an unreasonable amount; or for such
53 iron, steel products or steel components is necessary for the operation
54 of or repairs of critical infrastructure that is necessary to avoid a
55 delay in the delivery of critical services that could compromise the
56 public welfare; or a reciprocal trade agreement or treaty has been
A. 8427--A 4
1 negotiated by the state or by the United States government on behalf of
2 or including this state with a foreign nation or government for nondis-
3 criminatory governmental procurement practices or policies with such
4 foreign nation or government.
5 4. Nothing in this section is intended to contravene any existing
6 treaties, laws, trade agreements, or regulations of the United States or
7 subsequent trade agreements entered into between any foreign countries
8 and the state or the United States.
9 5. Any authority subject to the provisions of this section shall be
10 authorized to establish rules and regulations for the effective adminis-
11 tration of this section, provided however, nothing in this section shall
12 be interpreted to require a contractor to certify that the iron or steel
13 used in a road or bridge pursuant to this section is made in whole or in
14 substantial part in the United States.
15 § 4. A workgroup shall be convened to evaluate reciprocal trade access
16 for any foreign state that may be significantly impacted by the imple-
17 mentation of this act to the detriment of New York state, the provisions
18 of any formal trade agreements established by the governments of the
19 United States and such foreign state, the expansion of the application
20 of this act to include other products manufactured in the United States,
21 which shall include but not be limited to concrete, cement and aluminum,
22 the certification processes for these products, and the fiscal impact of
23 such implementation and expansion of this act. Additionally, the work-
24 group shall report on the impact of this act on the capital plans of the
25 department of transportation, the metropolitan transportation authority,
26 and the thruway authority, including but not limited to any amendments
27 to such capital plans necessary as a result of this act, any change in
28 cost of projects as a result of this act, and any cost savings discerni-
29 ble due to quality improvements or maintenance reductions due to materi-
30 als used as a result of this act. The members of the workgroup shall
31 consist of seven representatives appointed by the governor, two
32 appointed by the temporary president of the senate, two appointed by the
33 speaker of the assembly, one appointed by the minority leader of the
34 senate, and one appointed by the minority leader of the assembly. The
35 workgroup shall be chaired by a designee of the governor. The chair may
36 appoint other state agencies or public authorities which may prove bene-
37 ficial to the workgroup as ad hoc members. The chair may also appoint
38 individuals and representatives of organizations other than state agen-
39 cies and public authorities to an advisory committee to advise on any
40 aspect of its functions and duties. The workgroup shall provide an
41 interim report on their findings to the governor, the temporary presi-
42 dent of the senate and the speaker of the assembly on or before January
43 1, 2019 and a final report on January 1, 2020.
44 § 5. This act shall take effect April 1, 2018 and shall apply to any
45 state contracts executed and entered into on or after such date and
46 shall exclude such contracts that have been previously awarded or have
47 pending bids or pending requests for proposals issued as of April 1,
48 2018, and shall not apply to projects that have commenced project design
49 and environmental studies prior to such date; provided, however, that
50 this act shall expire and be deemed repealed April 15, 2020.
