117 S1303 IS: Build America, Buy America Act
U.S. Senate
2021-04-22
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II
117th CONGRESS
1st Session
S. 1303
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
A BILL
To ensure that certain Federal infrastructure programs require the use of materials produced in the United States, and for other purposes.
1.

Short title
This Act may be cited as the “Build America, Buy America Act”.
2.

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)
the benefits of domestic content preferences extend beyond economics;
(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;
(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;
(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;
(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;
(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;
(11)
a robust domestic manufacturing sector is a vital component of the national security of the United States;
(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
(13)
domestic 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.
3.

Definitions
In this Act:
(1)

Deficient program
The term deficient program means a program identified by the head of a Federal agency under section 4(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; or
(B)
the manufactured products used in the project are produced in the United States.
(3)

Federal agency
The term Federal agency has the meaning given the term agency in section 552(f) of title 5, United States Code.
(4)

Federal financial assistance
(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).
(B)

Inclusion
The term Federal financial assistance includes all expenditures by a Federal agency for an infrastructure project.
(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, 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.
(7)

Project
The term project means the construction, alteration, maintenance, or repair of infrastructure in the United States.
4.

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; or
(2)
is subject to a waiver of general applicability not limited to the use of specific products for use in a specific project.
5.

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 used for a project unless all of the iron, steel, and manufactured products 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, or manufactured products 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, or manufactured products 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)
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
(2)
provide a reasonable period for public comment on the proposed waiver.
(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.
(e)

Consistency with international agreements
This section shall be applied in a manner consistent with United States obligations under international agreements.
6.

OMB 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 4(c); and
(B)
to assist in applying new domestic content procurement preferences under section 5; 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 Act or other Federal law are imposed through the terms and conditions of awards of Federal financial assistance.
7.

Application
(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.
(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.