117 S1303 RS: Build America, Buy America Act
U.S. Senate
2022-12-19
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
Calendar No. 667
117th CONGRESS
2d Session
S. 1303
[Report No. 117–268]
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.
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.
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.
I

Build America, Buy America
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.
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.
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.
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.
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.
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.
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.
II

Make it in America
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.
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”.
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.
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!.
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.
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.
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.
December 19, 2022
Reported with an amendment