Senate Bill No. 381
(By Senators Miller, Yost, Klempa, Wills, Laird, D. Facemire, Chafin, Foster, Kessler (Mr. President), Plymale and Jenkins)
[Introduced January 23, 2012; referred to the Committee on Government Organization; and then to the Committee on Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §5I-1-1, §5I-1-2, §5I-1-3 and §5I-1-4, all relating to creating the West Virginia Buy American Act; requiring public agency construction contracts for public buildings or public works contain a provision that the iron, steel, manufactured goods, coal and timber used or supplied be manufactured or produced in the United States; permitting waivers; providing remedies for intentional violations; defining terms; making findings; and declaring policy.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new chapter, designated §5I-1-1, §5I-1-2, §5I-1-3 and §5I-1-4, all to read as follows:
CHAPTER 5I. WEST VIRGINIA BUY AMERICAN ACT.
ARTICLE 1. WEST VIRGINIA BUY AMERICAN.
§5I-1-1. Short title.
This act may be cited as the “West Virginia Buy American Act.”
§5I-1-2. Findings and declaration of policy.
(a) Findings. -- The Legislature finds that:
(1) The production of iron, steel, manufactured goods, coal and timber provides jobs and family income to many individuals in this state and, in turn, the jobs and family incomes of millions of persons in the United States;
(2) The taxes paid to the state and its political subdivisions by employers and employees engaged in the production and sale of iron, steel, manufactured goods, coal and timber are a large source of public revenues for West Virginia;
(3) The economy and general welfare of West Virginia and its people and the economy and general welfare of the United States are inseparably linked to the preservation and development of manufacturing, harvesting and mineral extraction industries in this state, as well as all the other states of the nation;
(4) The state’s taxpayer dollars are better spent if reinvested with its individual and employer taxpayers in order to foster job retention and growth, particularly within the manufacturing, harvesting and mineral extraction sectors, and to ensure a broad and healthy tax base for future investments vital to the state’s infrastructure; and
(5) West Virginia’s procurement policies should reflect the state’s and the nation’s principles ensuring that the products of those companies and workers who abide by our workplace safety and environmental laws and regulations should be rewarded with a commonsense preference in government contracting.
(b) Declaration of policy. -- It is the policy of West Virginia that all public officials and agencies should aid and promote the economy of the state and the United States by requiring a preference for the procurement of iron, steel, manufactured goods, coal and timber produced in the United States in all contracts for the construction, reconstruction, repair, improvement or maintenance of public works.
§5I-1-3. Use of American materials.
(a) Notwithstanding any other provision of law, each contract for the construction, reconstruction, alteration, repair, improvement or maintenance of a public building or public works made by a public agency shall contain a provision that the iron, steel, manufactured goods, coal and timber used or supplied in the performance of the contract or any subcontract thereto shall be manufactured or produced in the United States.
(b) Subsection (a) of this section does not apply where the head of a public agency finds:
(1) That its application would be inconsistent with the public interest;
(2) That such materials and products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or
(3) That inclusion of domestic material will increase the cost of the overall project contract by more than twenty-five percent.
(c) If the public agency determines that it is necessary to waive the application of subsection (a) of this section based on a finding under subsection (b) of this section, the agency shall, before the date on which the finding takes effect:
(1) Publish in the State Register a detailed written justification as to why the waiver is needed;
(2) Consider all comments received during the comment period in evaluating the waiver requests; and
(3) Provide notice of the finding and an opportunity for public comment on such finding for a reasonable period of time not to exceed fifteen days.
(d) Intentional Violations. -- A person shall be ineligible to receive any contract or subcontract with this state or any political subdivision if a court or federal or state agency determines that any person intentionally:
(1) Affixed a label bearing a "Made in America" or “Produced in America” inscription, or any inscription with the same meaning, to any product used in projects to which this section applies, sold in or shipped to the United States that was not made or produced in the United States; or
(2) Represented that any product used in projects to which this section applies, sold in or shipped to the United States that was not produced in the United States, was produced in the United States.
(e) Limitation on Applicability of Waivers to Products Produced in Certain Foreign Countries. -- Subsection (b) of this section does not apply to products produced in a foreign country if the head of a public agency, in consultation with the United States Trade Representative, determines that:
(1) The foreign country is a party to an agreement with the United States and pursuant to that agreement the head of an agency of the United States has waived the requirements of this section; and
(2) The foreign country has violated the terms of the agreement by discriminating against products covered by this section that are produced in the United States and are covered by the agreement.
As used in this chapter, the following terms have the meanings ascribed to them in this section, unless the context in which the term is used clearly requires another meaning:
(1) “Manufactured” means:
(A) In the case of an iron or steel product all manufacturing must take place in the United States, except metallurgical processes involving the refinement of steel additives; or(B) In the case of a manufactured good, a good will be considered manufactured in the United States if:
(i) All the manufacturing processes for the product take place in the United States; and
(ii) All of the components of the product are of United States origin. A component will be considered of a product of United States origin if all the manufacturing processes take place in the United States, regardless of the origin of its subcomponents.
(2) “Public agency” or “agency” means the State of West Virginia, its departments, agencies, boards, commissions, and institutions, and all units and political subdivisions, including local school districts.
(3) “Public buildings” and “public works” mean any structure, building, highway, waterway, street, bridge, transit system, airport or other betterment, work or improvement whether of a permanent or temporary nature and whether for governmental or proprietary use. The term includes, but is not limited to, any railway, street railway, subway, elevated and monorail passenger or passenger and rail rolling stock, self-propelled cars, gallery cars, locomotives, passenger buses, wires, poles and equipment for electrification of a transit system, rails, tracks, roadbeds, guide ways, elevated structures, buildings, schools, hospitals, stations, terminals, docks, shelters and repairs to any of the foregoing.
(4) “United States” means the United States of America and includes all territory, continental or insular, subject to the jurisdiction of the United States.
NOTE: The purpose of this bill is to create the “West Virginia Buy American Act.” The bill requires public agency construction contracts for public buildings or public works contain a provision that the iron, steel, manufactured goods, coal and timber used or supplied be manufactured or produced in the United States. The bill permits waivers and provides remedies for intentional violations. The bill also makes findings, declares policy and defines terms.
This chapter is new; therefore, strike-throughs and underscoring have been omitted.