SA 851. Mr. MERKLEY submitted an amendment intended to be proposed to amendment SA 738 proposed by Mr. INOUYE to the bill H.R. 2112, making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies programs for the fiscal year ending September 30, 2012, and for other purposes; which was ordered to lie on the table; as follows:

On page 264, between lines 9 and 10, insert the following:
SEC. 153. BUYING GOODS PRODUCED IN THE UNITED STATES.
(a) Compliance.--None of the funds made available for freight rail transportation projects under this title may be expended by any entity unless the entity agrees that such expenditures will comply with the requirements under this section.
(b) Preference.--
(1) IN GENERAL.--Notwithstanding any other provision of law, the Secretary of Transportation may not obligate any funds appropriated for a freight rail transportation project under this title or provide direct loans or loan guarantees under section 502 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 822) unless all the steel, iron, and manufactured products used in the project are produced in the United States.
(2) WAIVER.--The Secretary of Transportation may waive the application of paragraph (1) in circumstances in which the Secretary determines that--
(A) such application would be inconsistent with the public interest;
(B) such materials and products produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; or
(C) inclusion of domestic material would increase the cost of the overall project by more than 25 percent.
(c) Labor Costs.--For purposes of this subsection (b)(2)(C), labor costs involved in final assembly shall not be included in calculating the cost of components.
(d) Manufacturing Plan.--The Secretary of Transportation shall prepare, in conjunction the Secretary of Commerce, a manufacturing plan that--
(1) promotes the production of products in the United States that are the subject of waivers granted under subsection (b)(2)(B);
(2) addresses how such products may be produced in a sufficient and reasonably available amount, and in a satisfactory quality, in the United States; and
(3) addresses the creation of a public database for the waivers granted under subsection (b)(2)(B).
(e) Waiver Notice and Comment.--If the Secretary of Transportation determines that a waiver of subsection (b)(1) is warranted, the Secretary, before the date on which such determination takes effect, shall--
(1) post the waiver request and a detailed written justification of the need for such waiver on the Department of Transportation's public website;
(2) publish a detailed written justification of the need for such waiver in the Federal Register; and
(3) provide notice of such determination and an opportunity for public comment for a reasonable period of time not to exceed 15 days.
(f) State Requirements.--The Secretary of Transportation may not impose any limitation on amounts made available for freight rail transportation projects under this title that--
(1) restricts a State from imposing requirements that are more stringent than the requirements under this section on the use of articles, materials, and supplies mined, produced, or manufactured in foreign countries, in projects carried out with such assistance; or
(2) prohibits any recipient of such amounts from complying with State requirements authorized under paragraph (1).
(g) Certification.--The Secretary of Transportation may authorize a manufacturer or supplier of steel, iron, or manufactured goods to correct, after bid opening, any certification of noncompliance or failure to properly complete the certification (except for failure to sign the certification) under this section if such manufacturer or supplier attests, under penalty of perjury, and establishes, by a preponderance of the evidence, that such manufacturer or supplier submitted an incorrect
certification as a result of an inadvertent or clerical error.
(h) Review.--Any entity adversely affected by an action by the Department of Transportation under this section is entitled to seek judicial review of such action in accordance with section 702 of title 5, United States Code.
(i) Minimum Cost.--The requirements under this section shall only apply to contracts for which the costs exceed $100,000.
(j) International Agreements.--This section shall be applied in a manner consistent with United States obligations under international agreements.
(k) Fraudulent Use of "Made in America" Label.--An entity is ineligible to receive a contract or subcontract made with amounts appropriated for freight rail transportation projects under this title or under section 502 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 822) if a court or department, agency, or instrumentality of the Government determines that the person intentionally--
(1) affixed a "Made in America" label, or a label with an inscription having the same meaning, to goods sold in or shipped to the United States that are used in a project to which this section applies, but were not produced in the United States; or
(2) represented that goods described in paragraph (1) were produced in the United States.


(As printed in the Congressional Record for the Senate on Oct 18, 2011.)