[Senate Report 117-227]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 586
117th Congress      }                                  {       Report
                                 SENATE
 2d Session         }                                  {      117-227
_______________________________________________________________________

                                     


                      BUY AMERICAN.GOV ACT OF 2021

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 732

                TO STRENGTHEN BUY AMERICAN REQUIREMENTS,
                         AND FOR OTHER PURPOSES







[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








                December 5, 2022.--Ordered to be printed  
                
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
39-010                   WASHINGTON : 2022
                
                
                
                
                
                
                
                
                
                
                
                
                
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
                  Michelle M. Benecke, Senior Counsel
                Pamela Thiessen, Minority Staff Director
            Sam J. Mulopulos, Minority Deputy Staff Director
                     Laura W. Kilbride, Chief Clerk














                                                     Calendar No. 586
117th Congress      }                                  {       Report
                                 SENATE
 2d Session         }                                  {      117-227

======================================================================



 
                      BUY AMERICAN.GOV ACT OF 2021

                                _______
                                

                December 5, 2022.--Ordered to be printed

                                _______
                                

 Mr. Peters, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 732]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 732) to strengthen 
Buy American requirements, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment, in the nature of a substitute, and recommends that 
the bill, as amended, do pass.

                                CONTENTS

                                                                     Page
  I. Purpose and Summary..............................................  1
 II. Background and Need for the Legislation..........................  2
III. Legislative History..............................................  3
 IV. Section-by-Section Analysis......................................  3
  V. Evaluation of Regulatory Impact..................................  5
 VI. Changes in Existing Law Made by the Bill, as Reported............  5

                         I. PURPOSE AND SUMMARY

    S. 732, the BuyAmerican.gov Act of 2021, directs the 
General Services Administration (GSA) to establish a website, 
BuyAmerican.gov, that will be used to publish information about 
waivers and exceptions to domestic procurement preference 
measures, collectively referred to as ``Buy American laws.''\1\ 
Specifically, the website will collect information about 
waivers of Buy American laws that have been requested, are 
under consideration, or have been granted. The website will be 
designed to ensure manufacturers and other interested members 
of the public have an opportunity to learn of waiver requests 
early in the approval process. S. 732 also requires the 
Administrator of GSA to develop a centralized mechanism for 
collecting waiver requests.
---------------------------------------------------------------------------
    \1\This bill covers any law, regulation, Executive Order, or rule 
relating to federal contracts, grants, or financial assistance that 
requires or provides a preference for the purchase or use of goods, 
products, or materials mined, produced, or manufactured in the United 
States, including: chapter 83 of title 41, United States Code (commonly 
referred to as the ``Buy American Act''); section 5323(j) of title 49, 
United States Code; (C) section 313 of title 23, United States Code; 
section 50101 of title 49, United States Code; section 24405 of title 
49, United States Code; section 608 of the Federal Water Pollution 
Control Act (33 U.S.C. 1388); section 1452(a)(4) of the Safe Drinking 
Water Act (42 U.S.C. 300j-12(a)(4)); section 5035 of the Water 
Resources Reform and Development Act of 2014 (33 U.S.C. 3914); section 
2533a of title 10, United States Code (commonly referred to as the 
``Berry Amendment''); section 2533b of title 10, United States Code; 
and, section 604 of the American Recovery and Reinvestment Act of 2009 
(6 U.S.C. 453b).
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              II. BACKGROUND AND THE NEED FOR LEGISLATION

    There are generally two categories of domestic content 
preferences in U.S. law and regulation. The first are Buy 
America preferences, which apply to federally funded public 
works and infrastructure projects, such as the construction of 
highways, railways, and rapid transit systems. The second is 
the preference for items procured directly by the federal 
government. This includes the Buy American Act of 1933, which 
gives a preference for federal agencies to procure domestically 
produced goods.\2\ It also includes the Berry Amendment,\3\ a 
group of domestic sourcing restrictions passed by Congress in 
1941 that applies to the Department of Defense.
---------------------------------------------------------------------------
    \2\41 U.S.C. Sec. 8302.
    \3\10 U.S.C. Sec. 2533a.
---------------------------------------------------------------------------
    Typically, Buy American requirements can be waived by an 
administering agency if applying the domestic content 
requirements would be (1) inconsistent with the public 
interest, (2) if the procured materials are not produced in 
sufficient quantities in the United States, or (3) if adhering 
to the Buy American requirements would increase the cost of the 
overall project by a certain percent.
    From 2012 through 2016, federal agencies granted 388,953 
Buy American waivers in order to source products manufactured 
outside the United States. The Department of Defense (DoD) 
granted over 230,000 waivers during that period, amounting to 
$1.3 billion worth of products procured from non-domestic 
sources.\4\ Since these waivers are often granted with little 
oversight and transparency, the high number of approved waivers 
is a source of concern about compliance with Buy American laws.
---------------------------------------------------------------------------
    \4\Office of the Under Secretary of Defense for Acquisition, 
Technology, and Logistics, Report to Congress on Department of Defense 
Fiscal Year 2016 Purchases from Foreign Entities, (June 2017) (https://
www.acq.osd.mil/dpap/cpic/ic/docs/FY_16_Foreign_Entities_RTC_USA001870-
17_signed_June_29_2017.pdf).
---------------------------------------------------------------------------
    A 2018 study by the Government Accountability Office (GAO) 
found a prevalence of data reporting errors by federal 
agencies, indicating that the full extent of the use of 
exceptions and waivers may not be fully known.\5\ The lack of a 
government-wide repository for information about waivers to 
domestic content preference is an additional concern.
---------------------------------------------------------------------------
    \5\Government Accountability Office, Buy American Act: Actions 
Needed to Improve Exception and Waiver Reporting and Selected Agency 
Guidance, (GAO-19-17) (Dec. 2018) (https://www.gao.gov/assets/gao-19-
17.pdf).
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    On January 25, 2021, President Biden issued an Executive 
Order to update and centralize the Buy American waiver 
process.\6\ The order required the Administrator of GSA to 
develop a public website to publish information on all 
proposed, granted, and denied waivers.\7\ The order also called 
for greater oversight of the waiver process by establishing a 
more centralized system of review.\8\ Prior to that, on April 
21, 2017, President Trump issued an Executive Order aimed at 
bolstering Buy American laws and maximizing the Government's 
use of goods, products, and materials produced in the United 
States.\9\ Notably, the order targeted the overuse of waivers 
and exceptions by requiring the heads of federal agencies to 
carefully consider the impact of ``dumped'' foreign steel, 
iron, or manufactured goods on the price of domestic goods.\10\
---------------------------------------------------------------------------
    \6\Exec. Order No. 14005, 86 Fed. Reg. 7475 (Jan. 25, 2021).
    \7\Id.
    \8\Id.
    \9\Exec. Order No. 13788, 82 Fed. Reg. 18837 (Apr. 21, 2017).
    \10\Id.
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    The solution to the opacity surrounding the approval of Buy 
American waiver requests is to improve transparency in the 
federal procurement process. This bill promotes transparency by 
requiring a public website for Buy American waiver requests. 
The domain, BuyAmerican.gov (already owned by GSA), will 
publish information about pending or granted Buy America waiver 
requests for public awareness and comment. The bill requires 
agencies to justify applications for Buy American waivers on 
the website, potentially reducing the incentive to utilize 
these waivers as ``loopholes.'' The existence of this website 
will give American businesses the opportunity to notify 
government agencies when they have the capability to fulfill a 
contract with domestic products.

                        III. LEGISLATIVE HISTORY

    Ranking Member Rob Portman (R-OH) introduced S. 732, the 
BuyAmerican.gov Act of 2021, on March 11, 2021 with Senator 
Christopher Murphy (D-CT), Senator Lindsey Graham (R-SC), 
Senator Sherrod Brown (D-OH), and Senator Debbie Stabenow (D-
MI) as cosponsors. The bill was referred to the Committee on 
Homeland Security and Governmental Affairs.
    The Committee considered S. 732 at a business meeting on 
May 12, 2021. During the business meeting, a Substitute 
Amendment was introduced by Chairman Peters and Ranking Member 
Portman and was adopted by voice vote en bloc. An amendment was 
also offered by Senator Johnson and adopted by voice vote en 
bloc.
    The bill, as amended, was ordered reported favorably by 
voice vote en bloc as amended with Senators Peters, Carper, 
Hassan, Sinema, Rosen, Padilla, Ossoff, Portman, Johnson, Paul, 
Lankford, Romney, Scott, and Hawley present.
    The text of this bill was included in the Infrastructure 
Investment and Jobs Act (Pub. L. 117-58, Sec. 70931-70941), 
which became law before this bill was reported out of 
committee.

        IV. SECTION BY SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This bill is named the BuyAmerican.gov Act.

Section 2. Definitions

    This bill defines Buy American law broadly to include the 
Buy American Act (chapter 83 of title 41), Buy America 
requirements (section 5323(j) of title 49), the Berry Amendment 
(section 2533a of title 10), the specialty metal provisions in 
section 2533b of title 10, and the Buy American rules in the 
American Recovery and Reinvestment Act (6 U.S.C. 453b).

Section 3. Sense of Congress on Buy American

    This section expresses the sense of Congress that every 
agency should maximize federal awards and procurements for 
items made in the United States by American workers and 
businesses.

Section 4. Assessment of impact of free trade agreements

    This section requires the Secretary of Commerce, the U.S. 
Trade Representative, and the Director of the Office of 
Management and Budget to assess the impacts of all United 
States free trade agreements and the World Trade Organization 
Agreement on Government Procurement on the operation of Buy 
American Laws, including their impacts on the implementation of 
domestic procurement preferences. It also requires an 
assessment of federal permitting processes on the operation of 
Buy American laws.

Section 5. Judicious use of waivers

    This section requires public interest waivers to be 
construed to ensure maximum utilization of items produced in 
the United States and be approved by the head of the agency 
issuing the public interest waiver.

Section 6. Establishment of BuyAmerican.gov website

    This section directs GSA to establish a website with the 
address BuyAmerican.gov. The website will include information 
on all waivers of Buy American laws that have been requested, 
are under consideration, or have been granted by executive 
agencies and be designed to enable manufacturers and other 
interested parties to easily identify waivers. GSA already owns 
the domain name BuyAmerican.gov.

Section 7. Waiver transparency and streamlining for contracts

    This section requires that waivers to Buy American laws for 
federal grants be posted on BuyAmerican.gov. Specifically, it 
requires the Administration to develop a mechanism to collect 
information on requests to waive Buy American laws and other 
domestic content restrictions, utilizing existing reporting 
requirements whenever possible in order to make BuyAmerican.gov 
timely and effective.
    Not less than 15 days prior to issuing a waiver, the head 
of an executive agency shall make available to the public, by 
posting on BuyAmerican.gov, a copy of the request to waive a 
Buy American law, and information available to the executive 
agency concerning the request. The agency will then allow 
informal public comment on the waiver request for at least 20 
days prior to making a finding based on the request. A waiver 
may not be granted if the waiver request was not made available 
to the public, or there was no opportunity for public comment 
on the waiver request.

Section 8. Comptroller General report

    This section requires the Comptroller General to producea 
report not later than two years after enactment on the 
implementation of this bill.

Section 9. Rules of construction

    This section future proofs the legislation by ensuring 
BuyAmerican.gov can be moved to a successor information system.

Section 10. Consistency with international agreements

    This section ensures that the legislation is applied in a 
manner consistent with U.S. obligations under international 
agreements.

Section 11. Prospective amendments to internal cross-references

    This section future-proofs the citation for the Berry 
Amendment in the U.S. Code.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. This legislation was enacted as part of the 
Infrastructure Investment and Jobs Act (Pub. L. 117-58, Sec. 
70931-70941 (2021)) and was not assessed individually for 
intergovernmental or private sector mandates. The statements on 
these mandates regarding the enacted bill can be found under 
H.R. 3684 on CBO.gov.

       VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because S. 732 would not repeal or amend any provision of 
current law, it would make no changes in existing law within 
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI 
of the Standing Rules of the Senate.

                                  [all]