[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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