[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1303 Reported in Senate (RS)]
<DOC>
Calendar No. 667
117th CONGRESS
2d Session
S. 1303
[Report No. 117-268]
To ensure that certain Federal infrastructure programs require the use
of materials produced in the United States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 22, 2021
Mr. Brown (for himself, Mr. Portman, Mr. Peters, and Mr. Braun)
introduced the following bill; which was read twice and referred to the
Committee on Homeland Security and Governmental Affairs
December 19, 2022
Reported by Mr. Peters, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To ensure that certain Federal infrastructure programs require the use
of materials produced in the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Build America, Buy America
Act''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds that--</DELETED>
<DELETED> (1) the United States must make significant
investments to install, upgrade, or replace the public works
infrastructure of the United States;</DELETED>
<DELETED> (2) with respect to investments in the
infrastructure of the United States, taxpayers expect that
their public works infrastructure will be produced in the
United States by American workers;</DELETED>
<DELETED> (3) United States taxpayer dollars invested in
public infrastructure should not be used to reward companies
that have moved their operations, investment dollars, and jobs
to foreign countries or foreign factories, particularly those
that do not share or openly flout the commitments of the United
States to environmental, worker, and workplace safety
protections;</DELETED>
<DELETED> (4) in procuring materials for public works
projects, entities using taxpayer-financed Federal assistance
should give a commonsense procurement preference for the
materials and products produced by companies and workers in the
United States in accordance with the high ideals embodied in
the environmental, worker, workplace safety, and other
regulatory requirements of the United States;</DELETED>
<DELETED> (5) the benefits of domestic content preferences
extend beyond economics;</DELETED>
<DELETED> (6) by incentivizing domestic manufacturing,
domestic content preferences reinvest tax dollars in companies
and processes using the highest labor and environmental
standards in the world;</DELETED>
<DELETED> (7) strong domestic content preference policies
act to prevent shifts in production to countries that rely on
production practices that are significantly less energy
efficient and far more polluting than those in the United
States;</DELETED>
<DELETED> (8) for over 75 years, Buy America and other
domestic preference laws have been part of the United States
procurement policy, ensuring that the United States can build
and rebuild the infrastructure of the United States with high-
quality American-made materials;</DELETED>
<DELETED> (9) Buy America laws create demand for
domestically produced goods, helping to sustain and grow
domestic manufacturing and the millions of jobs domestic
manufacturing supports throughout product supply
chains;</DELETED>
<DELETED> (10) as of the date of enactment of this Act,
domestic procurement preference policies apply to all Federal
Government procurement and to various Federal-aid
infrastructure programs;</DELETED>
<DELETED> (11) a robust domestic manufacturing sector is a
vital component of the national security of the United
States;</DELETED>
<DELETED> (12) as more manufacturing operations of the
United States have moved offshore, the strength and readiness
of the defense industrial base of the United States has been
diminished; and</DELETED>
<DELETED> (13) domestic procurement preference laws--
</DELETED>
<DELETED> (A) are fully consistent with the
international obligations of the United States;
and</DELETED>
<DELETED> (B) together with the government
procurements to which the laws apply, are important
levers for ensuring that United States manufacturers
can access the government procurement markets of the
trading partners of the United States.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Deficient program.--The term ``deficient
program'' means a program identified by the head of a Federal
agency under section 4(c).</DELETED>
<DELETED> (2) Domestic content procurement preference.--The
term ``domestic content procurement preference'' means a
requirement that no amounts made available through a program
for Federal financial assistance may be obligated for a project
unless--</DELETED>
<DELETED> (A) all iron and steel used in the project
are produced in the United States; or</DELETED>
<DELETED> (B) the manufactured products used in the
project are produced in the United States.</DELETED>
<DELETED> (3) Federal agency.--The term ``Federal agency''
has the meaning given the term ``agency'' in section 552(f) of
title 5, United States Code.</DELETED>
<DELETED> (4) Federal financial assistance.--</DELETED>
<DELETED> (A) In general.--The term ``Federal
financial assistance'' has the meaning given the term
in section 200.40 of title 2, Code of Federal
Regulations (or successor regulations).</DELETED>
<DELETED> (B) Inclusion.--The term ``Federal
financial assistance'' includes all expenditures by a
Federal agency for an infrastructure project.</DELETED>
<DELETED> (5) Infrastructure.--The term ``infrastructure''
includes, at a minimum, the structures, facilities, and
equipment for, in the United States--</DELETED>
<DELETED> (A) roads, highways, and
bridges;</DELETED>
<DELETED> (B) public transportation;</DELETED>
<DELETED> (C) dams, ports, harbors, and other
maritime facilities;</DELETED>
<DELETED> (D) intercity passenger and freight
railroads;</DELETED>
<DELETED> (E) freight and intermodal
facilities;</DELETED>
<DELETED> (F) airports;</DELETED>
<DELETED> (G) water systems, including drinking
water and wastewater systems;</DELETED>
<DELETED> (H) electrical transmission facilities and
systems;</DELETED>
<DELETED> (I) utilities;</DELETED>
<DELETED> (J) broadband infrastructure;
and</DELETED>
<DELETED> (K) buildings and real property.</DELETED>
<DELETED> (6) Produced in the united states.--The term
``produced in the United States'' means, in the case of iron or
steel products, that all manufacturing processes, from the
initial melting stage through the application of coatings,
occurred in the United States.</DELETED>
<DELETED> (7) Project.--The term ``project'' means the
construction, alteration, maintenance, or repair of
infrastructure in the United States.</DELETED>
<DELETED>SEC. 4. IDENTIFICATION OF DEFICIENT PROGRAMS.</DELETED>
<DELETED> (a) In General.--Not later than 60 days after the date of
enactment of this Act, the head of each Federal agency shall--
</DELETED>
<DELETED> (1) submit to the Office of Management and Budget
and to Congress, including a separate notice to each
appropriate congressional committee, a report that identifies
each Federal financial assistance program for infrastructure
administered by the Federal agency; and</DELETED>
<DELETED> (2) publish in the Federal Register the report
under paragraph (1).</DELETED>
<DELETED> (b) Requirements.--In the report under subsection (a), the
head of each Federal agency shall, for each Federal financial
assistance program--</DELETED>
<DELETED> (1) identify all domestic content procurement
preferences applicable to the Federal financial
assistance;</DELETED>
<DELETED> (2) assess the applicability of the domestic
content procurement preference requirements, including--
</DELETED>
<DELETED> (A) section 313 of title 23, United States
Code;</DELETED>
<DELETED> (B) section 5323(j) of title 49, United
States Code;</DELETED>
<DELETED> (C) section 22905(a) of title 49, United
States Code;</DELETED>
<DELETED> (D) section 50101 of title 49, United
States Code;</DELETED>
<DELETED> (E) section 603 of the Federal Water
Pollution Control Act (33 U.S.C. 1388);</DELETED>
<DELETED> (F) section 1452(a)(4) of the Safe
Drinking Water Act (42 U.S.C. 300j-12(a)(4));</DELETED>
<DELETED> (G) section 5035 of the Water
Infrastructure Finance and Innovation Act of 2014 (33
U.S.C. 3914);</DELETED>
<DELETED> (H) any domestic content procurement
preference included in an appropriations Act;
and</DELETED>
<DELETED> (I) any other domestic content procurement
preference in Federal law (including
regulations);</DELETED>
<DELETED> (3) provide details on any applicable domestic
content procurement preference requirement, including the
purpose, scope, applicability, and any exceptions and waivers
issued under the requirement; and</DELETED>
<DELETED> (4) include a description of the type of
infrastructure projects that receive funding under the program,
including information relating to--</DELETED>
<DELETED> (A) the number of entities that are
participating in the program;</DELETED>
<DELETED> (B) the amount of Federal funds that are
made available for the program for each fiscal year;
and</DELETED>
<DELETED> (C) any other information the head of the
Federal agency determines to be relevant.</DELETED>
<DELETED> (c) List of Deficient Programs.--In the report under
subsection (a), the head of each Federal agency shall include a list of
Federal financial assistance programs for infrastructure identified
under that subsection for which a domestic content procurement
preference requirement--</DELETED>
<DELETED> (1) does not apply; or</DELETED>
<DELETED> (2) is subject to a waiver of general
applicability not limited to the use of specific products for
use in a specific project.</DELETED>
<DELETED>SEC. 5. APPLICATION OF BUY AMERICA PREFERENCE.</DELETED>
<DELETED> (a) In General.--Not later than 180 days after the date of
enactment of this Act, the head of each Federal agency shall ensure
that none of the funds made available for a Federal financial
assistance program for infrastructure, including each deficient
program, may be used for a project unless all of the iron, steel, and
manufactured products used in the project are produced in the United
States.</DELETED>
<DELETED> (b) Waiver.--The head of a Federal agency that applies a
domestic content procurement preference under this section may waive
the application of that preference in any case in which the head of the
Federal agency finds that--</DELETED>
<DELETED> (1) applying the domestic content procurement
preference would be inconsistent with the public
interest;</DELETED>
<DELETED> (2) types of iron, steel, or manufactured products
are not produced in the United States in sufficient and
reasonably available quantities or of a satisfactory quality;
or</DELETED>
<DELETED> (3) the inclusion of iron, steel, or manufactured
products produced in the United States will increase the cost
of the overall project by more than 25 percent.</DELETED>
<DELETED> (c) Written Justification.--Before issuing a waiver under
subsection (b), the head of the Federal agency shall--</DELETED>
<DELETED> (1) publish in the Federal Register and make
publicly available in an easily accessible location on the
website of the Federal agency a detailed written explanation
for the proposed determination to issue the waiver;
and</DELETED>
<DELETED> (2) provide a reasonable period for public comment
on the proposed waiver.</DELETED>
<DELETED> (d) Prohibition on Waivers of General Applicability.--A
waiver issued under subsection (b) shall be limited to the use of
specific products for use in a specific project.</DELETED>
<DELETED> (e) Consistency With International Agreements.--This
section shall be applied in a manner consistent with United States
obligations under international agreements.</DELETED>
<DELETED>SEC. 6. OMB GUIDANCE.</DELETED>
<DELETED> The Director of the Office of Management and Budget
shall--</DELETED>
<DELETED> (1) issue guidance to the head of each Federal
agency--</DELETED>
<DELETED> (A) to assist in identifying deficient
programs under section 4(c); and</DELETED>
<DELETED> (B) to assist in applying new domestic
content procurement preferences under section 5;
and</DELETED>
<DELETED> (2) if necessary, amend subtitle A of title 2,
Code of Federal Regulations (or successor regulations), to
ensure that domestic content procurement preference
requirements required by this Act or other Federal law are
imposed through the terms and conditions of awards of Federal
financial assistance.</DELETED>
<DELETED>SEC. 7. APPLICATION.</DELETED>
<DELETED> (a) In General.--This Act shall apply to a Federal
financial assistance program for infrastructure only to the extent that
a domestic content procurement preference as described in section 5
does not already apply to iron, steel, and manufactured
products.</DELETED>
<DELETED> (b) Savings Provision.--Nothing in this Act affects a
domestic content procurement preference for a Federal financial
assistance program for infrastructure that is in effect and that meets
the requirements of section 5.</DELETED>
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Build America, Buy
America Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--BUILD AMERICA, BUY AMERICA
Sec. 101. Findings.
Sec. 102. Definitions.
Sec. 103. Identification of deficient programs.
Sec. 104. Application of Buy America preference.
Sec. 105. OMB guidance and standards.
Sec. 106. Technical assistance partnership and consultation supporting
Department of Transportation Buy America
requirements.
Sec. 107. Application.
TITLE II--MAKE IT IN AMERICA
Sec. 201. Regulations relating to Buy American Act.
Sec. 202. Amendments relating to Buy American Act.
Sec. 203. Made in America Office.
Sec. 204. Hollings Manufacturing Extension Partnership activities.
Sec. 205. United States obligations under international agreements.
Sec. 206. Definitions.
Sec. 207. Prospective amendments to internal cross-references.
TITLE I--BUILD AMERICA, BUY AMERICA
SEC. 101. FINDINGS.
Congress finds that--
(1) the United States must make significant investments to
install, upgrade, or replace the public works infrastructure of
the United States;
(2) with respect to investments in the infrastructure of
the United States, taxpayers expect that their public works
infrastructure will be produced in the United States by
American workers;
(3) United States taxpayer dollars invested in public
infrastructure should not be used to reward companies that have
moved their operations, investment dollars, and jobs to foreign
countries or foreign factories, particularly those that do not
share or openly flout the commitments of the United States to
environmental, worker, and workplace safety protections;
(4) in procuring materials for public works projects,
entities using taxpayer-financed Federal assistance should give
a commonsense procurement preference for the materials and
products produced by companies and workers in the United States
in accordance with the high ideals embodied in the
environmental, worker, workplace safety, and other regulatory
requirements of the United States;
(5) common construction materials used in public works
infrastructure projects, including steel, iron, manufactured
products, non-ferrous metals, plastic and polymer-based
products (including polyvinylchloride, composite building
materials, and polymers used in fiber optic cables), concrete
and other aggregates, glass (including optic glass), lumber,
and drywall are not adequately covered by a domestic content
procurement preference, thus limiting the impact of taxpayer
purchases to enhance supply chains in the United States;
(6) the benefits of domestic content procurement
preferences extend beyond economics;
(7) by incentivizing domestic manufacturing, domestic
content procurement preferences reinvest tax dollars in
companies and processes using the highest labor and
environmental standards in the world;
(8) strong domestic content procurement preference policies
act to prevent shifts in production to countries that rely on
production practices that are significantly less energy
efficient and far more polluting than those in the United
States;
(9) for over 75 years, Buy America and other domestic
content procurement preference laws have been part of the
United States procurement policy, ensuring that the United
States can build and rebuild the infrastructure of the United
States with high-quality American-made materials;
(10) before the date of enactment of this Act, a domestic
content procurement preference requirement may not apply, may
apply only to a narrow scope of products and materials, or may
be limited by waiver with respect to many infrastructure
programs, which necessitates a review of such programs,
including programs for roads, highways, and bridges, public
transportation, dams, ports, harbors, and other maritime
facilities, intercity passenger and freight railroads, freight
and intermodal facilities, airports, water systems, including
drinking water and wastewater systems, electrical transmission
facilities and systems, utilities, broadband infrastructure,
and buildings and real property;
(11) Buy America laws create demand for domestically
produced goods, helping to sustain and grow domestic
manufacturing and the millions of jobs domestic manufacturing
supports throughout product supply chains;
(12) as of the date of enactment of this Act, domestic
content procurement preference policies apply to all Federal
Government procurement and to various Federal-aid
infrastructure programs;
(13) a robust domestic manufacturing sector is a vital
component of the national security of the United States;
(14) as more manufacturing operations of the United States
have moved offshore, the strength and readiness of the defense
industrial base of the United States has been diminished; and
(15) domestic content procurement preference laws--
(A) are fully consistent with the international
obligations of the United States; and
(B) together with the government procurements to
which the laws apply, are important levers for ensuring
that United States manufacturers can access the
government procurement markets of the trading partners
of the United States.
SEC. 102. DEFINITIONS.
In this title:
(1) Deficient program.--The term ``deficient program''
means a program identified by the head of a Federal agency
under section 103(c).
(2) Domestic content procurement preference.--The term
``domestic content procurement preference'' means a requirement
that no amounts made available through a program for Federal
financial assistance may be obligated for a project unless--
(A) all iron and steel used in the project are
produced in the United States;
(B) the manufactured products used in the project
are produced in the United States; or
(C) the construction materials used in the project
are produced in the United States.
(3) Federal agency.--The term ``Federal agency'' means any
authority of the United States that is an ``agency'' (as
defined in section 3502 of title 44, United States Code), other
than an independent regulatory agency (as defined in that
section).
(4) Federal financial assistance.--
(A) In general.--The term ``Federal financial
assistance'' has the meaning given the term in section
200.1 of title 2, Code of Federal Regulations (or
successor regulations).
(B) Inclusion.--The term ``Federal financial
assistance'' includes all expenditures by a Federal
agency to a non-Federal entity for an infrastructure
project, except that it does not include expenditures
for assistance authorized under section 402, 403, 404,
406, 408, or 502 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5170a,
5170b, 5170c, 5172, 5174, or 5192) relating to a major
disaster or emergency declared by the President under
section 401 or 501, respectively, of such Act (42
U.S.C. 5170, 5191) or pre and post disaster or
emergency response expenditures.
(5) Infrastructure.--The term ``infrastructure'' includes,
at a minimum, the structures, facilities, and equipment for, in
the United States--
(A) roads, highways, and bridges;
(B) public transportation;
(C) dams, ports, harbors, and other maritime
facilities;
(D) intercity passenger and freight railroads;
(E) freight and intermodal facilities;
(F) airports;
(G) water systems, including drinking water and
wastewater systems;
(H) electrical transmission facilities and systems;
(I) utilities;
(J) broadband infrastructure; and
(K) buildings and real property.
(6) Produced in the united states.--The term ``produced in
the United States'' means--
(A) in the case of iron or steel products, that all
manufacturing processes, from the initial melting stage
through the application of coatings, occurred in the
United States;
(B) in the case of manufactured products, that--
(i) the manufactured product was
manufactured in the United States; and
(ii) the cost of the components of the
manufactured product that are mined, produced,
or manufactured in the United States is greater
than 55 percent of the total cost of all
components of the manufactured product, unless
another standard for determining the minimum
amount of domestic content of the manufactured
product has been established under applicable
law or regulation; and
(C) in the case of construction materials, that all
manufacturing processes for the construction material
occurred in the United States.
(7) Project.--The term ``project'' means the construction,
alteration, maintenance, or repair of infrastructure in the
United States.
SEC. 103. IDENTIFICATION OF DEFICIENT PROGRAMS.
(a) In General.--Not later than 60 days after the date of enactment
of this Act, the head of each Federal agency shall--
(1) submit to the Office of Management and Budget and to
Congress, including a separate notice to each appropriate
congressional committee, a report that identifies each Federal
financial assistance program for infrastructure administered by
the Federal agency; and
(2) publish in the Federal Register the report under
paragraph (1).
(b) Requirements.--In the report under subsection (a), the head of
each Federal agency shall, for each Federal financial assistance
program--
(1) identify all domestic content procurement preferences
applicable to the Federal financial assistance;
(2) assess the applicability of the domestic content
procurement preference requirements, including--
(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;
(E) section 603 of the Federal Water Pollution
Control Act (33 U.S.C. 1388);
(F) section 1452(a)(4) of the Safe Drinking Water
Act (42 U.S.C. 300j-12(a)(4));
(G) section 5035 of the Water Infrastructure
Finance and Innovation Act of 2014 (33 U.S.C. 3914);
(H) any domestic content procurement preference
included in an appropriations Act; and
(I) any other domestic content procurement
preference in Federal law (including regulations);
(3) provide details on any applicable domestic content
procurement preference requirement, including the purpose,
scope, applicability, and any exceptions and waivers issued
under the requirement; and
(4) include a description of the type of infrastructure
projects that receive funding under the program, including
information relating to--
(A) the number of entities that are participating
in the program;
(B) the amount of Federal funds that are made
available for the program for each fiscal year; and
(C) any other information the head of the Federal
agency determines to be relevant.
(c) List of Deficient Programs.--In the report under subsection
(a), the head of each Federal agency shall include a list of Federal
financial assistance programs for infrastructure identified under that
subsection for which a domestic content procurement preference
requirement--
(1) does not apply in a manner consistent with section 104;
or
(2) is subject to a waiver of general applicability not
limited to the use of specific products for use in a specific
project.
SEC. 104. APPLICATION OF BUY AMERICA PREFERENCE.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the head of each Federal agency shall ensure
that none of the funds made available for a Federal financial
assistance program for infrastructure, including each deficient
program, may be obligated for a project unless all of the iron, steel,
manufactured products, and construction materials used in the project
are produced in the United States.
(b) Waiver.--The head of a Federal agency that applies a domestic
content procurement preference under this section may waive the
application of that preference in any case in which the head of the
Federal agency finds that--
(1) applying the domestic content procurement preference
would be inconsistent with the public interest;
(2) types of iron, steel, manufactured products, or
construction materials are not produced in the United States in
sufficient and reasonably available quantities or of a
satisfactory quality; or
(3) the inclusion of iron, steel, manufactured products, or
construction materials produced in the United States will
increase the cost of the overall project by more than 25
percent.
(c) Written Justification.--Before issuing a waiver under
subsection (b), the head of the Federal agency shall--
(1) make publicly available in an easily accessible
location on a website designated by the Office of Management
and Budget and on the website of the Federal agency a detailed
written explanation for the proposed determination to issue the
waiver; and
(2) provide a period of not less than 15 days for public
comment on the proposed waiver.
(d) Automatic Sunset on Waivers of General Applicability.--
(1) In general.--A general applicability waiver issued
under subsection (b) shall expire not later than 2 years after
the date on which the waiver is issued.
(2) Reissuance.--The head of a Federal agency may reissue a
general applicability waiver only after--
(A) publishing in the Federal Register a notice
that--
(i) describes the justification for
reissuing a general applicability waiver; and
(ii) requests public comments for a period
of not less than 30 days; and
(B) publishing in the Federal Register a second
notice that--
(i) responds to the public comments
received in response to the first notice; and
(ii) provides the final decision on whether
the general applicability waiver will be
reissued.
(e) Consistency With International Agreements.--This section shall
be applied in a manner consistent with United States obligations under
international agreements.
SEC. 105. OMB GUIDANCE AND STANDARDS.
(a) Guidance.--The Director of the Office of Management and Budget
shall--
(1) issue guidance to the head of each Federal agency--
(A) to assist in identifying deficient programs
under section 103(c); and
(B) to assist in applying new domestic content
procurement preferences under section 104; and
(2) if necessary, amend subtitle A of title 2, Code of
Federal Regulations (or successor regulations), to ensure that
domestic content procurement preference requirements required
by this title or other Federal law are imposed through the
terms and conditions of awards of Federal financial assistance.
(b) Standards for Construction Materials.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Director of the Office of Management
and Budget shall issue standards that define the term ``all
manufacturing processes'' in the case of construction
materials.
(2) Considerations.--In issuing standards under paragraph
(1), the Director shall--
(A) ensure that the standards require that each
manufacturing process required for the manufacture of
the construction material and the inputs of the
construction material occurs in the United States; and
(B) take into consideration and seek to maximize
the direct and indirect jobs benefited or created in
the production of the construction material.
SEC. 106. 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 and the Committee on Oversight and
Reform 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. 107. APPLICATION.
(a) In General.--This title shall apply to a Federal financial
assistance program for infrastructure only to the extent that a
domestic content procurement preference as described in section 104
does not already apply to iron, steel, manufactured products, and
construction materials.
(b) Savings Provision.--Nothing in this title affects a domestic
content procurement preference for a Federal financial assistance
program for infrastructure that is in effect and that meets the
requirements of section 104.
TITLE II--MAKE IT IN AMERICA
SEC. 201. 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 (``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 section 8302(a)(1) 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 may limit the publication of
classified information.
(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--
(i) result in a decrease in employment in
the United States, including employment among
entities that manufacture the articles,
materials, or supplies; or
(ii) result in awarding a contract that
would decrease domestic employment.
(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. 202. 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 Build America, Buy 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 the
Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Oversight and Reform of the House
of Representatives 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 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
(2) 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.--Subparagraph (A) of section 1908(b)(2) of title 41,
United States Code, is amended by striking ``chapter 67'' and inserting
``chapters 67 and 83''.
SEC. 203. 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) Prepare the reports required under subsections (c) and
(e).
(4) 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.
(5) Conduct the review of reciprocal defense agreements
required under subsection (d).
(6) 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.
(7) Support executive branch efforts to develop and sustain
a domestic supply base to meet Federal procurement
requirements.
(c) 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.
(d) 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, and
the Secretary of State.
(e) 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.
(f) 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
106(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 2533b 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''; and
(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 material, and manufactured goods offered in the
United States.
SEC. 204. 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. 205. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS.
This title, and the amendments made by this title, shall be applied
in a manner consistent with United States obligations under
international agreements.
SEC. 206. DEFINITIONS.
In this title:
(1) Berry amendment.--The term ``Berry Amendment'' means
section 2533a 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) 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.
SEC. 207. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.
(a) Specialty Metals Clause Reference.--Section 203(f)(5) is
amended by striking ``section 2533b'' and inserting ``section 4863''.
(b) Berry Amendment Reference.--Section 206(1) is amended by
striking ``section 2533a'' and inserting ``section 4862''.
(c) Effective Date.--The amendments made by this section shall take
effect on January 1, 2022.
Calendar No. 667
117th CONGRESS
2d Session
S. 1303
[Report No. 117-268]
_______________________________________________________________________
A BILL
To ensure that certain Federal infrastructure programs require the use
of materials produced in the United States, and for other purposes.
_______________________________________________________________________
December 19, 2022
Reported with an amendment