[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5059 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 5059
To amend chapter 83 of title 41, United States Code, to increase the
requirement for American-made content, to strengthen the waiver
provisions, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 20, 2021
Mr. Garamendi introduced the following bill; which was referred to the
Committee on Oversight and Reform, and in addition to the Committee on
Transportation and Infrastructure, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend chapter 83 of title 41, United States Code, to increase the
requirement for American-made content, to strengthen the waiver
provisions, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Make It in America
Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Technical assistance partnership and consultation supporting
Department of Transportation Buy America
requirements.
Sec. 3. Regulations relating to Buy American Act.
Sec. 4. Amendments relating to Buy American Act.
Sec. 5. Made in America Office.
Sec. 6. Hollings Manufacturing Extension Partnership activities.
Sec. 7. United States obligations under international agreements.
Sec. 8. Definitions.
SEC. 2. TECHNICAL ASSISTANCE PARTNERSHIP AND CONSULTATION SUPPORTING
DEPARTMENT OF TRANSPORTATION BUY AMERICA REQUIREMENTS.
(a) Definitions.--In this section:
(1) Buy america law.--The term ``Buy America law'' means--
(A) section 313 of title 23, United States Code;
(B) section 5323(j) of title 49, United States
Code;
(C) section 22905(a) of title 49, United States
Code;
(D) section 50101 of title 49, United States Code;
and
(E) any other domestic content procurement
preference for an infrastructure project under the
jurisdiction of the Secretary.
(2) Secretary.--The term ``Secretary'' means the Secretary
of Transportation.
(b) Technical Assistance Partnership.--Not later than 90 days after
the date of the enactment of this Act, the Secretary shall enter into a
technical assistance partnership with the Secretary of Commerce, acting
through the Director of the National Institute of Standards and
Technology--
(1) to ensure the development of a domestic supply base to
support intermodal transportation in the United States, such as
intercity high speed rail transportation, public transportation
systems, highway construction or reconstruction, airport
improvement projects, and other infrastructure projects under
the jurisdiction of the Secretary;
(2) to ensure compliance with Buy America laws that apply
to a project that receives assistance from the Federal Highway
Administration, the Federal Transit Administration, the Federal
Railroad Administration, the Federal Aviation Administration,
or another office or modal administration of the Secretary of
Transportation;
(3) to encourage technologies developed with the support of
and resources from the Secretary to be transitioned into
commercial market and applications; and
(4) to establish procedures for consultation under
subsection (c).
(c) Consultation.--Before granting a written waiver under a Buy
America law, the Secretary shall consult with the Director of the
Hollings Manufacturing Extension Partnership regarding whether there is
a domestic entity that could provide the iron, steel, manufactured
product, or construction material that is the subject of the proposed
waiver.
(d) Annual Report.--Not later than 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary shall
submit to the Committee on Commerce, Science, and Transportation, the
Committee on Banking, Housing, and Urban Affairs, the Committee on
Environment and Public Works, and the Committee on Homeland Security
and Governmental Affairs of the Senate and the Committee on
Transportation and Infrastructure, the Committee on Oversight and
Reform, and the Committee on Science, Space, and Technology of the
House of Representatives a report that includes--
(1) a detailed description of the consultation procedures
developed under subsection (b)(4);
(2) a detailed description of each waiver requested under a
Buy America law in the preceding year that was subject to
consultation under subsection (c), and the results of the
consultation;
(3) a detailed description of each waiver granted under a
Buy America law in the preceding year, including the type of
waiver and the reasoning for granting the waiver; and
(4) an update on challenges and gaps in the domestic supply
base identified in carrying out subsection (b)(1), including a
list of actions and policy changes the Secretary recommends be
taken to address those challenges and gaps.
SEC. 3. REGULATIONS RELATING TO BUY AMERICAN ACT.
(a) In General.--Not later than 1 year after the date of the
enactment of this Act, the Director of the Office of Management and
Budget (hereinafter referred to as ``Director''), acting through the
Administrator for Federal Procurement Policy and, in consultation with
the Federal Acquisition Regulatory Council, shall promulgate final
regulations or other policy or management guidance, as appropriate, to
standardize and simplify how Federal agencies comply with, report on,
and enforce the Buy American Act. The regulations or other policy or
management guidance shall include, at a minimum, the following:
(1) Guidelines for Federal agencies to determine, for the
purposes of applying sections 8302(a) and 8303(b)(3) of title
41, United States Code, the circumstances under which the
acquisition of articles, materials, or supplies mined,
produced, or manufactured in the United States is inconsistent
with the public interest.
(2) Guidelines to ensure Federal agencies base
determinations of non-availability on appropriate
considerations, including anticipated project delays and lack
of substitutable articles, materials, and supplies mined,
produced, or manufactured in the United States, when making
determinations of non-availability under sections 8302(a)(1)
and 8303(b)(1)(B) of title 41, United States Code.
(3)(A) Uniform procedures for each Federal agency to make
publicly available, in an easily identifiable location on the
website of the agency, and within the following time periods,
the following information:
(i) A written description of the circumstances in
which the head of the agency may waive the requirements
of the Buy American Act.
(ii) Each waiver made by the head of the agency
within 30 days after making such waiver, including a
justification with sufficient detail to explain the
basis for the waiver.
(B) The procedures established under this paragraph shall
ensure that the head of an agency, in consultation with the
head of the Made in America Office established under section
5(a), may limit the publication of classified information,
trade secrets, or other information that could damage the
United States.
(4) Guidelines for Federal agencies to ensure that a
project is not disaggregated for purposes of avoiding the
applicability of the requirements under the Buy American Act.
(5) An increase to the price preferences for domestic end
products and domestic construction materials.
(6) Amending the definitions of ``domestic end product''
and ``domestic construction material'' to ensure that iron and
steel products are, to the greatest extent possible, made with
domestic components.
(b) Guidelines Relating to Waivers.--
(1) Inconsistency with public interest.--
(A) In general.--With respect to the guidelines
developed under subsection (a)(1), the Administrator
shall seek to minimize waivers related to contract
awards that result in a decrease in employment in the
United States, including employment among entities that
manufacture the articles, materials, or supplies.
(B) Covered employment.--For purposes of
subparagraph (A), employment refers to positions
directly involved in the manufacture of articles,
materials, or supplies, and does not include positions
related to management, research and development, or
engineering and design.
(2) Assessment on use of dumped or subsidized foreign
products.--
(A) In general.--To the extent otherwise permitted
by law, before granting a waiver in the public interest
to the guidelines developed under subsection (a)(1)
with respect to a product sourced from a foreign
country, a Federal agency shall assess whether a
significant portion of the cost advantage of the
product is the result of the use of dumped steel, iron,
or manufactured goods or the use of injuriously
subsidized steel, iron, or manufactured goods.
(B) Consultation.--The Federal agency conducting
the assessment under subparagraph (A) shall consult
with the International Trade Administration in making
the assessment if the agency considers such
consultation to be helpful.
(C) Use of findings.--The Federal agency conducting
the assessment under subparagraph (A) shall integrate
any findings from the assessment into its waiver
determination.
(c) Sense of Congress on Increasing Domestic Content
Requirements.--It is the sense of Congress that the Federal Acquisition
Regulatory Council should amend the Federal Acquisition Regulation to
increase the domestic content requirements for domestic end products
and domestic construction material to 75 percent, or, in the event of
no qualifying offers, 60 percent.
(d) Definition of End Product Manufactured in the United States.--
Not later than 1 year after the date of the enactment of this Act, the
Federal Acquisition Regulatory Council shall amend part 25 of the
Federal Acquisition Regulation to provide a definition for ``end
product manufactured in the United States,'' including guidelines to
ensure that manufacturing processes involved in production of the end
product occur domestically.
SEC. 4. AMENDMENTS RELATING TO BUY AMERICAN ACT.
(a) Special Rules Relating to American Materials Required for
Public Use.--Section 8302 of title 41, United States Code, is amended
by adding at the end the following new subsection:
``(c) Special Rules.--The following rules apply in carrying out the
provisions of subsection (a):
``(1) Iron and steel manufactured in the united states.--
For purposes of this section, manufactured articles, materials,
and supplies of iron and steel are deemed manufactured in the
United States only if all manufacturing processes involved in
the production of such iron and steel, from the initial melting
stage through the application of coatings, occurs in the United
States.
``(2) Limitation on exception for commercially available
off-the-shelf items.--Notwithstanding any law or regulation to
the contrary, including section 1907 of this title and the
Federal Acquisition Regulation, the requirements of this
section apply to all iron and steel articles, materials, and
supplies.''.
(b) Production of Iron and Steel for Purposes of Contracts for
Public Works.--Section 8303 of title 41, United States Code, is
amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new
subsection:
``(c) Special Rules.--
``(1) Production of iron and steel.--For purposes of this
section, manufactured articles, materials, and supplies of iron
and steel are deemed manufactured in the United States only if
all manufacturing processes involved in the production of such
iron and steel, from the initial melting stage through the
application of coatings, occurs in the United States.
``(2) Limitation on exception for commercially available
off-the-shelf items.--Notwithstanding any law or regulation to
the contrary, including section 1907 of this title and the
Federal Acquisition Regulation, the requirements of this
section apply to all iron and steel articles, materials, and
supplies used in contracts described in subsection (a).''.
(c) Annual Report.--Subsection (b) of section 8302 of title 41,
United States Code, is amended to read as follows:
``(b) Reports.--
``(1) In general.--Not later than 180 days after the end of
the fiscal year during which the Make It in America Act is
enacted, and annually thereafter for 4 years, the Director of
the Office of Management and Budget, in consultation with the
Administrator of General Services, shall submit to Congress a
report on the total amount of acquisitions made by Federal
agencies in the relevant fiscal year of articles, materials, or
supplies acquired from entities that mine, produce, or
manufacture the articles, materials, or supplies outside the
United States.
``(2) Exception for intelligence community.--This
subsection does not apply to acquisitions made by an agency, or
component of an agency, that is an element of the intelligence
community as specified in, or designated under, section 3 of
the National Security Act of 1947 (50 U.S.C. 3003).''.
(d) Definition.--Section 8301 of title 41, United States Code, is
amended by adding at the end the following new paragraph:
``(3) Federal agency.--The term `Federal agency' has the
meaning given the term `executive agency' in section 133 of
this title.''.
(e) Conforming Amendments.--Title 41, United States Code, is
amended--
(1) in section 8301(1) by inserting ``Guam, the Northern
Mariana Islands,'' after ``Samoa,'';
(2) in section 8302(a)--
(A) in paragraph (1)--
(i) by striking ``department or independent
establishment'' and inserting ``Federal
agency''; and
(ii) by striking ``their acquisition to be
inconsistent with the public interest or their
cost to be unreasonable'' and inserting ``their
acquisition to be inconsistent with the public
interest, their cost to be unreasonable, or
that the articles, materials, or supplies of
the class or kind to be used, or the articles,
materials, or supplies from which they are
manufactured, are not mined, produced, or
manufactured in the United States in sufficient
and reasonably available commercial quantities
and of a satisfactory quality''; and
(B) in paragraph (2), by amending subparagraph (B)
to read as follows:
``(B) to any articles, materials, or supplies
procured pursuant to a reciprocal defense procurement
memorandum of understanding (as described in section
8304 of this title), or a trade agreement or least
developed country designation described in subpart
25.400 of the Federal Acquisition Regulation; and'';
and
(3) in section 8303--
(A) in subsection (b)--
(i) by striking ``department or independent
establishment'' each place it appears and
inserting ``Federal agency'';
(ii) by amending subparagraph (B) of
paragraph (1) to read as follows:
``(B) to any articles, materials, or supplies
procured pursuant to a reciprocal defense procurement
memorandum of understanding (as described in section
8304), or a trade agreement or least developed country
designation described in subpart 25.400 of the Federal
Acquisition Regulation; and''; and
(iii) in paragraph (3)--
(I) in the heading, by striking
``Inconsistent with public interest''
and inserting ``Waiver authority''; and
(II) by striking ``their purchase
to be inconsistent with the public
interest or their cost to be
unreasonable'' and inserting ``their
acquisition to be inconsistent with the
public interest, their cost to be
unreasonable, or that the articles,
materials, or supplies of the class or
kind to be used, or the articles,
materials, or supplies from which they
are manufactured, are not mined,
produced, or manufactured in the United
States in sufficient and reasonably
available commercial quantities and of
a satisfactory quality''; and
(B) in subsection (d), as redesignated by
subsection (b)(1) of this section, by striking
``department, bureau, agency, or independent
establishment'' each place it appears and inserting
``Federal agency''.
(f) Exclusion From Inflation Adjustment of Acquisition-Related
Dollar Thresholds.--Section 1908(b)(2)(A) of title 41, United States
Code, is amended by striking ``chapter 67'' and inserting ``chapters 67
and 83''.
SEC. 5. MADE IN AMERICA OFFICE.
(a) Establishment.--The Director of the Office of Management and
Budget shall establish within the Office of Management and Budget an
office to be known as the ``Made in America Office''. The head of the
office shall be appointed by the Director of the Office of Management
and Budget (in this section referred to as the ``Made in America
Director'').
(b) Duties.--The Made in America Director shall have the following
duties:
(1) Maximize and enforce compliance with domestic
preference statutes.
(2) Develop and implement procedures to review waiver
requests or inapplicability requests related to domestic
preference statutes.
(3) Grant approval or disapproval of any agency requests to
issue a waiver or inapplicability determination related to a
domestic preference statute.
(4) Prepare the reports required under subsections (c) and
(e).
(5) Ensure that Federal contracting personnel, financial
assistance personnel, and non-Federal recipients are regularly
trained on obligations under the Buy American Act and other
agency-specific domestic preference statutes.
(6) Conduct the review of reciprocal defense agreements
required under subsection (d).
(7) Ensure that Federal agencies, Federal financial
assistance recipients, and the Hollings Manufacturing Extension
Partnership partner with each other to promote compliance with
domestic preference statutes.
(8) Support executive branch efforts to develop and sustain
a domestic supply base to meet Federal procurement
requirements.
(c) Transfer.--The Director of the Office of Management and Budget
shall provide for the transfer of the functions, personnel, assets, and
liabilities of the Made in America Office within the Office of
Management and Budget, as in existence on the day before the date of
enactment of this Act, to the Made in America Office established by
subsection (a).
(d) Office of Management and Budget Report.--Not later than 1 year
after the date of the enactment of this Act, the Director of the Office
of Management and Budget, working through the Made in America Director,
shall report to the relevant congressional committees on the extent to
which, in each of the three fiscal years prior to the date of enactment
of this Act, articles, materials, or supplies acquired by the Federal
Government were mined, produced, or manufactured outside the United
States. Such report shall include for each Federal agency the
following:
(1) A summary of total procurement funds expended on
articles, materials, and supplies mined, produced, or
manufactured--
(A) inside the United States;
(B) outside the United States; and
(C) outside the United States--
(i) under each category of waiver under the
Buy American Act;
(ii) under each category of exception under
such chapter; and
(iii) for each country that mined,
produced, or manufactured such articles,
materials, and supplies.
(2) For each fiscal year covered by the report--
(A) the dollar value of any articles, materials, or
supplies that were mined, produced, or manufactured
outside the United States, in the aggregate and by
country;
(B) an itemized list of all waivers made under the
Buy American Act with respect to articles, materials,
or supplies, where available, and the country where
such articles, materials, or supplies were mined,
produced, or manufactured;
(C) if any articles, materials, or supplies were
acquired from entities that mine, produce, or
manufacture such articles, materials, or supplies
outside the United States due to an exception (that is
not the micro-purchase threshold exception described
under section 8302(a)(2)(C) of title 41, United States
Code), the specific exception that was used to purchase
such articles, materials, or supplies; and
(D) if any articles, materials, or supplies were
acquired from entities that mine, produce, or
manufacture such articles, materials, or supplies
outside the United States pursuant to a reciprocal
defense procurement memorandum of understanding (as
described in section 8304 of title 41, United States
Code), or a trade agreement or least developed country
designation described in subpart 25.400 of the Federal
Acquisition Regulation, a citation to such memorandum
of understanding, trade agreement, or designation.
(3) A description of the methods used by each Federal
agency to calculate the percentage domestic content of
articles, materials, and supplies mined, produced, or
manufactured in the United States.
(e) Review of Reciprocal Defense Agreements.--
(1) Review of process.--Not later than 180 days after the
date of the enactment of this Act, the Made in America Director
shall review the Department of Defense's use of reciprocal
defense agreements to determine if domestic entities have equal
and proportional access and report the findings of the review
to the Director of the Office of Management and Budget, the
Secretary of Defense, and the Secretary of State.
(2) Review of reciprocal procurement memoranda of
understanding.--The Made in America Director shall review
reciprocal procurement memoranda of understanding entered into
after the date of the enactment of this Act between the
Department of Defense and its counterparts in foreign
governments to assess whether domestic entities will have equal
and proportional access under the memoranda of understanding
and report the findings of the review to the Director of the
Office of Management and Budget, the Secretary of Defense, the
United States Trade Representative, and the Secretary of State.
(f) Report on Use of Made in America Laws.--The Made in America
Director shall submit to the relevant congressional committees a
summary of each report on the use of Made in America Laws received by
the Made in America Director pursuant to section 11 of Executive Order
14005, dated January 25, 2021 (relating to ensuring the future is made
in all of America by all of America's workers), not later than 90 days
after the date of the enactment of this Act or receipt of the reports
required under section 11 of such Executive order, whichever is later.
(g) Domestic Preference Statute Defined.--In this section, the term
``domestic preference statute'' means any of the following:
(1) The Buy American Act.
(2) A Buy America law (as that term is defined in section
8(a)).
(3) The Berry Amendment.
(4) Section 604 of the American Recovery and Reinvestment
Act of 2009 (6 U.S.C. 453b) (commonly referred to as the
``Kissell amendment'').
(5) Section 4863 of title 10 (commonly referred to as the
``specialty metals clause'').
(6) Laws requiring domestic preference for maritime
transport, including the Merchant Marine Act, 1920 (Public Law
66-261), commonly known as the ``Jones Act''.
(7) Any other law, regulation, rule, or Executive order
relating to Federal financial assistance awards or Federal
procurement, that requires, or provides a preference for, the
purchase or acquisition of goods, products, or materials
produced in the United States, including iron, steel,
construction materials, and manufactured goods offered in the
United States.
SEC. 6. HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP ACTIVITIES.
(a) Use of Hollings Manufacturing Extension Partnership To Refer
New Businesses to Contracting Opportunities.--The head of each Federal
agency shall work with the Director of the Hollings Manufacturing
Extension Partnership, as necessary, to ensure businesses participating
in this Partnership are aware of their contracting opportunities.
(b) Automatic Enrollment in GSA Advantage!.--The Administrator of
the General Services Administration and the Secretary of Commerce,
acting through the Under Secretary of Commerce for Standards and
Technology, shall jointly ensure that each business that participates
in the Hollings Manufacturing Extension Partnership is automatically
enrolled in General Services Administration Advantage!
SEC. 7. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS.
This Act, and the amendments made by this Act, shall be applied in
a manner consistent with United States obligations under international
agreements.
SEC. 8. DEFINITIONS.
In this Act:
(1) Berry amendment.--The term ``Berry Amendment'' means
section 4862 of title 10, United States Code.
(2) Buy american act.--The term ``Buy American Act'' means
chapter 83 of title 41, United States Code.
(3) Federal agency.--The term ``Federal agency'' has the
meaning given the term ``executive agency'' in section 133 of
title 41, United States Code.
(4) Relevant congressional committees.--The term ``relevant
congressional committees'' means--
(A) the Committee on Homeland Security and
Governmental Affairs, the Committee on Commerce,
Science, and Transportation, the Committee on
Environment and Public Works, the Committee on Banking,
Housing, and Urban Affairs, and the Committee on Armed
Services of the Senate; and
(B) the Committee on Oversight and Reform, the
Committee on Armed Services, and the Committee on
Transportation and Infrastructure of the House of
Representatives.
(5) United states.--The term ``United States'' means each
of the States, the District of Columbia, and any territory or
possession of the United States.
(6) Waiver.--The term ``waiver'', with respect to the
acquisition of an article, material, or supply for public use,
means the inapplicability of chapter 83 of title 41, United
States Code, to the acquisition by reason of any of the
following determinations under section 8302(a)(1) or 8303(b) of
such title:
(A) A determination by the head of the Federal
agency concerned that the acquisition is inconsistent
with the public interest.
(B) A determination by the head of the Federal
agency concerned that the cost of the acquisition is
unreasonable.
(C) A determination by the head of the Federal
agency concerned that the article, material, or supply
is not mined, produced, or manufactured in the United
States in sufficient and reasonably available
commercial quantities of a satisfactory quality.
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