[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