[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 363 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 363
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 SENATE OF THE UNITED STATES
February 23, 2021
Ms. Stabenow (for herself, Mr. Braun, Mr. Peters, Mr. Portman, and Ms.
Baldwin) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
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. Regulations relating to Buy American Act.
Sec. 3. Amendments relating to Buy American Act.
Sec. 4. Made in America Office.
Sec. 5. Department of Transportation Buy America provisions.
Sec. 6. Hollings Manufacturing Extension Partnership activities.
Sec. 7. United States obligations under international agreements.
Sec. 8. Definitions.
SEC. 2. 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 to standardize
and simplify how Federal agencies comply with, report on, and enforce
the Buy American Act. The regulations 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) 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:
(A) A written description of the circumstances in
which the head of the agency may waive the requirements
of the Buy American Act.
(B) Each waiver made by the head of the agency
within 30 days after making such waiver, including a
detailed justification for the waiver.
(3) 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.
(4) Increasing the price preferences for domestic end
products and domestic construction materials.
(5) 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, which shall be considered to
be inconsistent with the public interest,
including employment among entities that
manufacture the articles, materials, or
supplies; or
(ii) result in not awarding a contract that
would boost 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) 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. 3. 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.
``(3) Use outside the united states.--
``(A) In general.--Notwithstanding the exception
described in subsection (a)(2)(A), subsection (a)(1)
shall apply to articles, materials, or supplies for use
outside the United States if such articles, materials,
or supplies are not needed on an urgent basis or are
acquired on a regular basis.
``(B) Cost analysis.--In any case in which
articles, materials, or supplies are to be acquired for
use outside the United States and are not needed on an
urgent basis or are acquired on a regular basis, before
entering into a contract, an analysis shall be made of
the difference in the cost of acquiring such articles,
materials, or supplies from a company mining,
producing, or manufacturing the articles, materials, or
supplies in the United States (excluding the cost of
shipping) and the cost of acquiring such articles,
materials, or supplies from a company mining,
producing, or manufacturing the articles, materials, or
supplies outside the United States (including the cost
of shipping).
``(4) Domestic availability.--The head of a Federal agency
may not determine that an article, material, or supply is not
mined, produced, or manufactured in the United States in
sufficient and reasonably available commercial quantities and
of a satisfactory quality under subsection (a)(1) unless the
head of the agency first determines that--
``(A) domestic production cannot be initiated
without delaying the project for which the article,
material, or supply is to be acquired; and
``(B) a substitutable article, material, or supply
is not mined, produced, or manufactured in the United
States in sufficient and reasonably available
commercial quantities and of a satisfactory quality.''.
(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 the
Committee on Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate 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) Additional content.--Each report required under
paragraph (1) shall separately include, for the 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
this chapter with respect to articles, materials, or
supplies 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 subsection (a)(2)(C)), the specific exception
that was used to purchase such articles, materials, or
supplies;
``(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), 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; and
``(E) a summary of--
``(i) the total procurement funds expended
on articles, materials, and supplies mined,
produced, or manufactured inside the United
States;
``(ii) the total procurement funds expended
on articles, materials, and supplies mined,
produced, or manufactured outside the United
States; and
``(iii) the total procurement funds
expended on articles, materials, and supplies
mined, produced, or manufactured outside the
United States per country that mined, produced,
or manufactured such articles, materials, and
supplies.
``(3) Public availability.--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 shall make the
relevant report required under paragraph (1) publicly available
on a website.
``(4) 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) Definitions.--Section 8301 of title 41, United States Code, is
amended by adding at the end the following new paragraphs:
``(3) Federal agency.--The term `Federal agency' has the
meaning given the term `executive agency' in section 133 of
this title.
``(4) Substantially all.--The term `substantially all',
with respect to articles, materials, or supplies mined,
produced, or manufactured in the United States, means that--
``(A) the cost of the domestic components of such
articles, materials, or supplies exceeds 75 percent of
the total cost of all components of such articles,
materials, or supplies; or
``(B) in the event that a Federal agency does not
receive an offer on a contract that meets such
threshold, the cost of the domestic components of such
articles, materials, or supplies exceeds 60 percent of
the total cost of all components of such articles,
materials, or supplies.
``(5) Waiver.--The term `waiver', with respect to the
acquisition of an article, material, or supply for public use,
means the inapplicability of this chapter to the acquisition by
reason of any of the following determinations under section
8302(a)(1) or 8303(b)(3) of this title:
``(A) A written determination by the head of the
Federal agency concerned that the acquisition is
inconsistent with the public interest.
``(B) A written determination by the head of the
Federal agency concerned that the cost of the
acquisition is unreasonable.
``(C) A written 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.''.
(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)--
(i) in subparagraph (A), by inserting
``subject to subsection (c)(2)(A),'' before
``to articles, materials, or supplies''; and
(ii) 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 (c), 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. 4. 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 under subsection (c).
(3) Prepare the reports required under subsection (d) and
(f).
(4) Ensure that contracting personnel at each Federal
agency annually complete training 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 (e).
(6) Ensure that Federal agencies and the Hollings
Manufacturing Extension Partnership partner with each other to
promote compliance with domestic preference statutes.
(7) Ensure the development of a domestic supply base to
meet Federal procurement requirements.
(c) Review of Waiver Requests and Inapplicability Requests.--
(1) Required review.--Before a Federal agency grants a
waiver or determines the inapplicability of a domestic
preference statute, the head of the Federal agency shall
transmit a written request for such waiver to the Made in
America Director for review, together with a detailed
justification for the request.
(2) Notification of determination.--The Made in America
Director, in consultation with the Administrator for Federal
Procurement Policy and the Federal Acquisition Regulatory
Council, shall review the waiver request or request to
determine the inapplicability of domestic preference statutes
and provide to the requesting agency a written notification
approving or denying the request.
(3) Disagreements.--
(A) Notification.--If the head of the requesting
agency disagrees with some or all of the bases for the
Made in America Director's determination under
paragraph (2), the head of the agency shall inform the
Made in America Director in writing.
(B) Resolution.--To the extent permitted by law,
disagreements or conflicts between the Made in America
Director and the agency head shall be resolved in
accordance with procedures that parallel those set
forth in section 7 of Executive Order No. 12866, dated
September 30, 1993 (related to regulatory planning and
review), with respect to the Director of the Office of
Information and Regulatory Affairs within the Office of
Management and Budget.
(4) Notification of special circumstances.--If a Federal
agency is obligated by law to act more quickly than otherwise
provided for in accordance with the review procedures
established under this section, the head of the agency shall
notify the Made in America Director of the circumstances as
soon as possible.
(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 Congress on the extent to which, in each of fiscal
years 2018, 2019, and 2020 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 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.
(2) Review of reciprocal procurement memoranda of
understanding.--The Made in America Director shall review and
be responsible for approving 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.
(f) Report on Use of Made in America Laws.--Not later than 90 days
after the date of the enactment of this Act, the Made in America
Director shall submit to Congress each report on the use of Made in
America Laws received by the Made in America Director pursuant to
section 11 of Executive Order No. 14005, dated January 25, 2021
(relating to ensuring the future is made in all of America by all of
America's workers).
(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
5(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''); and
(6) 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, and
manufactured goods offered in the United States.
SEC. 5. DEPARTMENT OF TRANSPORTATION BUY AMERICA PROVISIONS.
(a) Definitions.--In this section:
(1) Buy america law.--The term ``Buy America law'' means
any of the following:
(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.
(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, or airport
improvement projects;
(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, or manufactured
good or product 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 Congress 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. 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 ensure that businesses participating in the Hollings
Manufacturing Extension Partnership are made aware of Federal
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, as redesignated
by section 1870(c)(2) of the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021.
(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) Waiver.--The term ``waiver'', with respect to the
acquisition of an article, material, or supply for public use,
means, other than for purposes of section 5, 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)(3) 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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