[Congressional Record Volume 165, Number 103 (Wednesday, June 19, 2019)]
[Senate]
[Pages S4094-S4096]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 766. Ms. BALDWIN submitted an amendment intended to be proposed by
her to the bill S. 1790, to authorize appropriations for fiscal year
2020 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the end of title VIII, add the following:
Subtitle G--Made in America Shipbuilding
SEC. 871. SHORT TITLE.
This subtitle may be cited as the ``Made in America
Shipbuilding Act of 2019''.
SEC. 872. DOMESTIC SHIPBUILDING REQUIREMENT.
(a) In General.--The head of an executive agency may not
enter into a contract related to the acquisition,
construction, or conversion of a vessel unless the vessel is
to be constructed or converted in the United States.
(b) Executive Agency Defined.--In this section, the term
``executive agency'' has the meaning given the term in
section 133 of title 41, United States Code.
SEC. 873. DOMESTIC SOURCING REQUIREMENT FOR SHIPBOARD
COMPONENTS.
(a) In General.--Chapter 47 of title 41, United States
Code, is amended by adding at the end the following new
section:
``Sec. 4714. Domestic sourcing requirement for shipboard
components
``(a) Requirement for United States Manufacture.--
``(1) Limitation on procurements.--The head of an executive
agency may procure any of the following components for
vessels only if the items are manufactured in the United
States:
``(A) In general.--The following components for vessels:
``(i) Air circuit breakers.
``(ii) Welded shipboard anchor and mooring chain with a
diameter of four inches or less.
``(iii) Auxiliary equipment, including pumps, for all
shipboard services.
``(iv) Propulsion system components (engines, reduction
gears, and propellers).
``(v) Shipboard cranes.
``(vi) Spreaders for shipboard cranes.
``(vii) Capstans.
``(viii) Winches.
``(ix) Hoists.
``(x) Outboard motors.
``(xi) Windlasses.
``(B) Other components.--The following components of
vessels, to the extent they are unique to marine
applications: gyrocompasses, electronic navigation chart
systems, steering controls, pumps, propulsion and machinery
control systems, and totally enclosed lifeboats.
``(C) Valves and machine tools.--Items in the following
categories:
``(i) Powered and non-powered valves in Federal Supply
Classes 4810 and 4820 used in piping for naval surface ships
and submarines.
``(ii) Machine tools in the Federal Supply Classes for
metal-working machinery numbered 3405, 3408, 3410 through
3419, 3426, 3433, 3438, 3441 through 3443, 3445, 3446, 3448,
3449, 3460, and 3461.
``(2) Applicability to certain items.--Paragraph (1) does
not apply to a procurement of spare or repair parts needed to
support components for vessels produced or manufactured
outside the United States.
``(3) Waiver authority.--The head of an executive agency
may waive the limitation in paragraph (1) with respect to the
procurement of an item listed in that paragraph if the head
of the agency determines that any of the following apply:
``(A) Application of the limitation would increase the cost
of the overall acquisition by more than 25 percent or cause
unreasonable delays to be incurred.
``(B) Satisfactory quality items manufactured by a domestic
entity are not available or domestic production of such items
cannot be initiated without significantly delaying the
project for which the item is to be acquired.
``(C) Application of the limitation would result in the
existence of only one domestic source for the item.
``(D) Application of the limitation is not in the national
security interests of the United States.
``(4) Implementation of waiver authority.--
``(A) Non-delegation of authority.--The head of an agency
may not delegate the waiver authority under paragraph (3).
``(B) Publication.--Not later than 30 days after exercising
the waiver authority under paragraph (3), the head of the
agency shall publish in an easily identifiable location on
the website of the agency information regarding the waiver,
including a detailed justification for the waiver.
``(5) Annual report.--Not later than 180 days after the end
of each fiscal year, the head of each executive agency that
has used a waiver described in this section in the fiscal
year shall submit to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives a report on the total amount of waivers used
and detailed information regarding and justification for the
waiver.
``(b) Components Containing Specialty Metals.--
``(1) Limitation on procurements.--The head of an executive
agency may not enter into a contract for the procurement of
end items or components for ships that contain a specialty
metal not melted or produced in the United States.
``(2) Availability exception.--
``(A) In general.--Paragraph (1) does not apply to the
extent that the head of an executive agency determines that
compliant specialty metal of satisfactory quality and
sufficient quantity, and in the required form, cannot be
procured as and when needed. For purposes of the preceding
sentence, the term `compliant specialty metal' means
specialty metal melted or produced in the United States.
``(B) Applicability.--This paragraph applies to prime
contracts and subcontracts at any tier under such contracts.
``(3) Exception for certain acquisitions.--Paragraph (1)
does not apply to the following:
``(A) Acquisitions outside the United States in support of
combat operations or in support of contingency operations.
``(B) Acquisitions for which the use of procedures other
than competitive procedures has been approved on the basis of
section 3304(c) of this title, relating to unusual and
compelling urgency of need.
``(4) Exception relating to agreements with foreign
governments.--Paragraph (1) does not preclude the acquisition
of a specialty metal if--
``(A) the acquisition is necessary--
``(i) to comply with agreements with foreign governments
requiring the United States to purchase supplies from foreign
sources for the purposes of offsetting sales made by the
United States Government or United States firms under
approved programs serving defense requirements; or
``(ii) in furtherance of agreements with foreign
governments in which both such governments agree to remove
barriers to purchases of supplies produced in the other
country or services performed by sources of the other
country; and
``(B) any such agreement with a foreign government
complies, where applicable, with the requirements of section
36 of the Arms Export Control Act (22 U.S.C. 2776) and with
section 2457 of title 10.
``(5) Exception for small purchases.--Paragraph (1) does
not apply to acquisitions in amounts not greater than the
simplified acquisition threshold referred to in section 134
of this title.
``(6) Exception for purchases of electronic components.--
Paragraph (1) does not apply to acquisitions of electronic
components, unless the head of the agency, with the
concurrence of the Secretary of Defense and upon the
recommendation of the Strategic Materials Protection Board
pursuant to section 187 of title 10, determines that the
domestic availability of a particular electronic component is
critical to national security.
``(7) Applicability to acquisitions of commercial items.--
``(A) In general.--Except as provided in subparagraphs (B)
and (C), this section applies to acquisitions of commercial
items, notwithstanding sections 1906 and 1907 of this title.
``(B) Exceptions.--This section does not apply to contracts
or subcontracts for the acquisition of commercially available
off-the-shelf items, as defined in section 104 of this title,
other than--
``(i) contracts or subcontracts for the acquisition of
specialty metals, including mill products, such as bar,
billet, slab, wire, plate and sheet, that have not been
incorporated into end items, subsystems, assemblies, or
components;
``(ii) contracts or subcontracts for the acquisition of
forgings or castings of specialty metals, unless such
forgings or castings are incorporated into commercially
available off-the-shelf end items, subsystems, or assemblies;
``(iii) contracts or subcontracts for commercially
available high performance magnets unless such high
performance magnets are incorporated into commercially
available off-the-shelf end items or subsystems; and
``(iv) contracts or subcontracts for commercially available
off-the-shelf fasteners, unless such fasteners are--
``(I) incorporated into commercially available off-the-
shelf end items, subsystems, assemblies, or components; or
``(II) purchased as provided in subparagraph (C).
``(C) Inapplicability to certain fasteners.--This
subsection does not apply to fasteners that are commercial
items that are purchased under a contract or subcontract with
a manufacturer of such fasteners, if the manufacturer has
certified that it will purchase, during the relevant calendar
year, an amount of domestically melted specialty
[[Page S4095]]
metal, in the required form, for use in the production of
such fasteners for sale to executive agencies and other
customers, that is not less than 50 percent of the total
amount of the specialty metal that it will purchase to carry
out the production of such fasteners.
``(8) Exceptions for purchases of specialty metals below
minimum threshold.--
``(A) In general.--Notwithstanding paragraph (1), the head
of an executive agency may accept delivery of an item
containing specialty metals that were not melted in the
United States if the total amount of noncompliant specialty
metals in the item does not exceed 2 percent of the total
weight of specialty metals in the item.
``(B) Exception.--This paragraph does not apply to high
performance magnets.
``(9) Streamlined compliance for commercial derivative
military articles.--
``(A) In general.--Paragraph (1) shall not apply to an item
acquired under a prime contract if the head of an executive
agency determines that--
``(i) the item is a commercial derivative military article;
and
``(ii) the contractor certifies that the contractor and its
subcontractors have entered into a contractual agreement, or
agreements, to purchase an amount of domestically melted
specialty metal in the required form, for use during the
period of contract performance in the production of the
commercial derivative military article and the related
commercial article, that is not less than the greater of--
``(I) an amount equivalent to 120 percent of the amount of
specialty metal that is required to carry out the production
of the commercial derivative military article (including the
work performed under each subcontract); or
``(II) an amount equivalent to 50 percent of the amount of
specialty metal that is purchased by the contractor and its
subcontractors for use during such period in the production
of the commercial derivative military article and the related
commercial article.
``(B) Determination of amount of specialty metal
required.--For the purposes of this paragraph, the amount of
specialty metal that is required to carry out the production
of the commercial derivative military article includes
specialty metal contained in any item, including commercially
available off-the-shelf items, incorporated into such
commercial derivative military article.
``(10) National security waiver.--
``(A) In general.--Notwithstanding paragraph (1), the head
of an executive agency may accept the delivery of an end item
containing noncompliant materials if the head of the
executive agency determines in writing that acceptance of
such end item is necessary to the national security interests
of the United States.
``(B) Requirements.--A written determination under
subparagraph (A)--
``(i) shall specify the quantity of end items to which the
waiver applies and the time period over which the waiver
applies; and
``(ii) shall be provided to Congress prior to making such a
determination (except that in the case of an urgent national
security requirement, such certification may be provided to
Congress up to 7 days after it is made).
``(C) Knowing or willful noncompliance.--
``(i) Determination.--In any case in which the head of an
executive agency makes a determination under subparagraph
(A), the head of the executive agency shall determine whether
or not the noncompliance was knowing and willful.
``(ii) Not knowing or willful noncompliance.--If the head
of the executive agency determines that the noncompliance was
not knowing or willful, the head of the executive agency
shall ensure that the contractor or subcontractor responsible
for the noncompliance develops and implements an effective
plan to ensure future compliance.
``(iii) Knowing or willful noncompliance.--If the head of
the executive agency determines that the noncompliance was
knowing or willful, the head of the executive agency shall--
``(I) require the development and implementation of a plan
to ensure future compliance; and
``(II) consider suspending or debarring the contractor or
subcontractor until such time as the contractor or
subcontractor has effectively addressed the issues that lead
to such noncompliance.
``(11) Specialty metal defined.--In this subsection, the
term `specialty metal' means any of the following:
``(A) Steel--
``(i) with a maximum alloy content exceeding one or more of
the following limits: manganese, 1.65 percent; silicon, 0.60
percent; or copper, 0.60 percent; or
``(ii) containing more than 0.25 percent of any of the
following elements: aluminum, chromium, cobalt, columbium,
molybdenum, nickel, titanium, tungsten, or vanadium.
``(B) Metal alloys consisting of nickel, iron-nickel, and
cobalt base alloys containing a total of other alloying
metals (except iron) in excess of 10 percent.
``(C) Titanium and titanium alloys.
``(D) Zirconium and zirconium base alloys.
``(12) Additional definitions.--In this subsection:
``(A) The term `United States' includes possessions of the
United States.
``(B) The term `component' has the meaning provided in
section 105 of this title.
``(C) The term `acquisition' has the meaning provided in
section 131 of this title.
``(D) The term `required form'--
``(i) shall not apply to end items or to their components
at any tier; and
``(ii) means in the form of mill product, such as bar,
billet, wire, slab, plate or sheet, and in the grade
appropriate for the production of--
``(I) a finished end item delivered to the executive
agency; or
``(II) a finished component assembled into an end item
delivered to the executive agency.
``(E) The term `commercially available off-the-shelf' has
the meaning provided in section 104 of this title.
``(F) The term `assemblies' means items forming a portion
of a system or subsystem that can be provisioned and replaced
as an entity and which incorporates multiple, replaceable
parts.
``(G) The term `commercial derivative military article'
means an item procured by the Department of Defense that is
or will be produced using the same production facilities, a
common supply chain, and the same or similar production
processes that are used for the production of articles
predominantly used by the general public or by
nongovernmental entities for purposes other than governmental
purposes.
``(H) The term `subsystem' means a functional grouping of
items that combine to perform a major function within an end
item, such as electrical power, attitude control, and
propulsion.
``(I) The term `end item' means the final production
product when assembled or completed, and ready for issue,
delivery, or deployment.
``(J) The term `subcontract' includes a subcontract at any
tier.
``(c) Use of United States Steel, Iron, Aluminum, and
Manufactured Products.--
``(1) In general.--The head of an executive agency may not
enter into a contract related to the construction of a vessel
unless the steel, iron, aluminum, and manufactured products
to be used in the construction of the vessel are produced in
the United States.
``(2) Exceptions.--The provisions of paragraph (1) shall
not apply where the head of an executive agency finds--
``(A) that their application would be inconsistent with the
public interest;
``(B) that such materials and products are not produced in
the United States in sufficient and reasonably available
quantities and of a satisfactory quality; or
``(C) that inclusion of domestic material will increase the
cost of the overall project contract by more than 25 percent.
``(3) Implementation of exceptions.--
``(A) Non-delegation of authority.--The head of an agency
may not delegate the authority to make a finding described in
paragraph (2).
``(B) Publication.--Not later than 30 days after making a
finding described in paragraph (2), the head of the agency
shall publish in an easily identifiable location on the
website of the agency information regarding the finding,
including a detailed justification for the exception.
``(4) Annual report.--Not later than 180 days after the end
of each fiscal year, the head of each executive agency that
has made an exception finding described in paragraph (2) in
the fiscal year shall submit to the Committee on Homeland
Security and Governmental Affairs of the Senate and the
Committee on Oversight and Government Reform of the House of
Representatives a report on the total amount of exceptions
used and detailed information regarding and justification for
the exceptions.
``(5) Calculation of component cost.--For purposes of this
subsection, in calculating components' costs, labor costs
involved in final assembly shall not be included in the
calculation.
``(6) Intentional violations.--If it has been determined by
a court or Federal agency that any person intentionally--
``(A) affixed a label bearing a `Made in America'
inscription, or any inscription with the same meaning, to any
product used in projects to which this section applies, sold
in or shipped to the United States that was not made in the
United States; or
``(B) represented that any product used in projects to
which this section applies, sold in or shipped to the United
States that was not produced in the United States, was
produced in the United States;
that person shall be debarred from contracting with the
Federal Government for a period of not less than 5 years.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by adding after the item
relating to section 4713 the following new item:
``4714. Domestic sourcing requirement for shipboard components.''.
SEC. 874. CONFORMING AMENDMENTS RELATED TO DEPARTMENT OF
DEFENSE PROVISIONS.
(a) Use of United States Steel, Iron, Aluminum, and
Manufactured Products.--
(1) In general.--Chapter 137 of title 10, United States
Code, is amended by adding at the end the following new
section:
``Sec. 2339b. Use of United States steel, iron, aluminum, and
manufactured products in shipbuilding
``(a) In General.--The head of an agency may not enter into
a contract related to the construction of a vessel unless the
steel, iron, aluminum, and manufactured products
[[Page S4096]]
to be used in the construction of the vessel are produced in
the United States.
``(b) Exceptions.--The provisions of subsection (a) shall
not apply where the head of the agency finds--
``(1) that their application would be inconsistent with the
public interest;
``(2) that such materials and products are not produced in
the United States in sufficient and reasonably available
quantities and of a satisfactory quality; or
``(3) that inclusion of domestic material will increase the
cost of the overall project contract by more than 25 percent.
``(c) Implementation of Exceptions.--
``(1) Non-delegation of authority.--The head of an agency
may not delegate the authority to make a finding described in
subsection (b).
``(2) Publication.--Not later than 30 days after making a
finding described in subsection (b), the head of the agency
shall publish in an easily identifiable location on the
website of the agency information regarding the finding,
including a detailed justification for the exception.
``(d) Annual Report.--Not later than 180 days after the end
of each fiscal year, the head of each executive agency that
has made an exception finding described in subsection (b) in
the fiscal year shall submit to the Committees on Armed
Services of the Senate and the House of Representatives a
report on the total amount of exceptions used and detailed
information regarding and justification for the exceptions.
``(e) Calculation of Component Cost.--For purposes of this
section, in calculating components' costs, labor costs
involved in final assembly shall not be included in the
calculation.
``(f) Intentional Violations.--If it has been determined by
a court or Federal agency that any person intentionally--
``(1) affixed a label bearing a `Made in America'
inscription, or any inscription with the same meaning, to any
product used in projects to which this section applies, sold
in or shipped to the United States that was not made in the
United States; or
``(2) represented that any product used in projects to
which this section applies, sold in or shipped to the United
States that was not produced in the United States, was
produced in the United States;
that person shall be debarred from contracting with the
Federal Government for a period of not less than 5 years.''.
(2) Clerical amendment.--The table of sections at the
beginning of such chapter is amended by adding after the item
relating to section 2339a the following new item:
``2339b. Use of United States steel, iron, aluminum, and manufactured
products in shipbuilding.''.
(b) Miscellaneous Limitations on the Procurement of Goods
Other Than United States Goods.--
(1) In general.--Section 2534(a)(3)(A) of title 10, United
States Code, is amended by adding at the end the following
new clauses:
``(iv) Auxiliary equipment, including pumps, for all
shipboard services.
``(v) Propulsion system components (engines, reduction
gears, and propellers).
``(vi) Shipboard cranes.
``(vii) Spreaders for shipboard cranes.
``(viii) Capstans.
``(ix) Winches.
``(x) Hoists.
``(xi) Outboard motors.
``(xii) Windlasses.''.
(2) Applicability of previously sunsetted provisions.--
Subsection (c)(2)(C) of section 2534 of title 10, United
States Code, is amended by striking ``shall cease to be
effective on October 1, 1996'' and inserting ``shall be in
effect during--
``(i) the period beginning on the date of the enactment of
this paragraph and ending on October 1, 1996; and
``(ii) the period beginning on the date of the enactment of
the Made in America Shipbuilding Act of 2019.''.
SEC. 875. APPLICABILITY.
The requirements under this subtitle and the amendments
made by this subtitle--
(1) apply to contracts entered into on or after the date of
the enactment of this Act; and
(2) do not apply to--
(A) contracts entered into before the date of the enactment
of this Act; or
(B) options included as part of such contracts as of such
date of enactment.
______