[Senate Report 117-239]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 617
117th Congress     }                                     {      Report
                                 SENATE
 2d Session        }                                     {     117-239
_______________________________________________________________________

                                     



            INVENT HERE, MAKE HERE FOR HOMELAND SECURITY ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 4902

              TO ADDRESS THE PREFERENCE FOR UNITED STATES
               INDUSTRY WITH RESPECT TO PATENT RIGHTS IN
              INVENTIONS MADE WITH DEPARTMENT OF HOMELAND
          SECURITY RESEARCH ASSISTANCE, AND FOR OTHER PURPOSES








[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








               December 12, 2022.--Ordered to be printed   
               
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
39-010                   WASHINGTON : 2023
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
        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
         Christopher J. Mulkins, Director of Homeland Security
                Pamela Thiessen, Minority Staff Director
            Sam J. Mulopulos, Minority Deputy Staff Director
              William H.W. McKenna, Minority Chief Counsel
                     Laura W. Kilbride, Chief Clerk

















                                                      Calendar No. 617
117th Congress     }                                     {      Report
                                 SENATE
 2d Session        }                                     {     117-239

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



 
                  INVENT HERE, MAKE HERE FOR HOMELAND 
                              SECURITY ACT

                                _______
                                

               December 12, 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. 4902]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 4902) to address 
the preference for United States industry with respect to 
patent rights in inventions made with Department of Homeland 
Security research assistance, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                     Page
  I. Purpose and Summary..............................................  1
 II. Background and Need for the Legislation..........................  2
III. Legislative History..............................................  2
 IV. Section-by-Section Analysis of the Bill, as Reported.............  2
  V. Evaluation of Regulatory Impact..................................  3
 VI. Congressional Budget Office Cost Estimate........................  3
VII. Changes in Existing Law Made by the Bill, as Reported............  6

                         I. Purpose and Summary

    S. 4902, the Invent Here, Make Here for Homeland Security 
Act, would ensure that products invented as a result of funding 
provided by the Department of Homeland Security Science and 
Technology Directorate (DHS S&T) are manufactured in the United 
States. The bill requires any waivers to be issued in 
accordance with the new Buy America reporting requirements 
passed in the Infrastructure Investments and Job Act. The bill 
also prohibits these inventions from being manufactured in 
certain countries, including China, North Korea, Iran, and 
Russia.

              II. Background and Need for the Legislation

    Current law--in a chapter popularly referred to as the 
Bayh-Doyle Act--requires products stemming from federally-
funded research to be made in the United States.\1\ S. 4902 
reiterates this preference specifically for DHS S&T. However, 
the Bayh-Doyle Act requirement includes a relatively broad 
waiver option for federal agencies, and this option is 
routinely used in order for products to be manufactured 
overseas.\2\ This legislation would constrict the Bayh-Doyle 
waiver option for DHS S&T by requiring any waivers issued by 
the Secretary of Homeland Security to be in accordance with the 
new Buy America reporting requirements passed in the 
Infrastructure Investment and Jobs Act.\3\
---------------------------------------------------------------------------
    \1\The Bayh-Doyle Act of 1980, 35 U.S.C. Sec. 200.
    \2\Invent Here, Manufacture Here, The Hill (Feb. 13, 2022) (https:/
/thehill.com/opinion/finance/594042-invent-here-manufacture-here/).
    \3\Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 
Title IX (2021).
---------------------------------------------------------------------------

                        III. Legislative History

    Senator Rob Portman (R-OH) introduced S. 4902, the Invent 
Here, Make Here for Homeland Security Act, on September 21, 
2022, with Senator Tammy Baldwin (D-WI). The bill was referred 
to the Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 4902 at a business meeting on 
September 28, 2022. The bill was ordered reported favorably by 
voice vote en bloc. Senators present for the vote were Peters, 
Carper, Hassan, Sinema, Rosen, Padilla, Ossoff, Portman, 
Johnson, Paul, Lankford, Romney, Scott, and Hawley.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section designates the name of the bill as the 
``Invent Here, Make Here for Homeland Security Act.''

Section 2. Preference for United States Industry.

    This section adds a new subsection--subsection (d)--to the 
end of Section 308 of the Homeland Security Act of 2002.
    Subsection (d)(1) defines ``country of concern,'' ``funding 
agreement,'' nonprofit organization,'' ``subject invention,'' 
and ``relevant congressional committees.''
    Subsection (d)(2) prohibits firms or nonprofits that 
receive title to any subject invention developed under a 
funding agreement with the Department of Homeland Security from 
granting to any person the exclusive right to use or sell the 
invention unless the person agrees that any products produced 
through the use of the invention will be manufactured in the 
United States.
    Subsection (d)(3) permits the Secretary of Homeland 
Security to waive the requirements of subsection (d)(2) if the 
firm, nonprofit, or assignee has made reasonable but 
unsuccessful efforts to grant licenses to persons who would be 
likely to manufacture substantially in the United States, or 
that domestic manufacture is not commercially feasible. The 
subsection further requires the Secretary to consult with the 
relevant congressional committees before granting a waiver, and 
to comply with the procedures laid out in the Build America, 
Buy America Act. Finally, the subsection prohibits the 
Secretary from granting waivers that will result in products 
being manufactured substantially in a country of concern.

                   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. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, November 9, 2022.
Hon. Gary C. Peters,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed table summarizing estimated budgetary 
effects and mandates information for some of the legislation 
that has been ordered reported by the Senate Committee on 
Homeland Security and Governmental Affairs during the 117th 
Congress.
    If you wish further details, we will be pleased to provide 
them. The CBO staff contact for each estimate is listed on the 
enclosed table.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

           SUMMARY ESTIMATES OF LEGISLATION ORDERED REPORTED

    The Congressional Budget Act of 1974 requires the 
Congressional Budget Office, to the extent practicable, to 
prepare estimates of the budgetary effects of legislation 
ordered reported by Congressional authorizing committees. In 
order to provide the Congress with as much information as 
possible, the attached table summarizes information about the 
estimated direct spending and revenue effects of some of the 
legislation that has been ordered reported by the Senate 
Committee on Homeland Security and Governmental Affairs during 
the 117th Congress. The legislation listed in this table 
generally would have small effects, if any, on direct spending 
or revenues, CBO estimates. Where possible, the table also 
provides information about the legislation's estimated effects 
on spending subject to appropriation and on intergovernmental 
and private-sector mandates as defined in the Unfunded Mandates 
Reform Act.

                                                                      ESTIMATED BUDGETARY EFFECTS AND MANDATES INFORMATION
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                           Increases On-
                                                                                                                         Spending Subject   Pay-As-You-Go     Budget
   Bill         Title         Status        Last Action       Budget Function    Direct Spending,     Revenues, 2023-    to Appropriation,    Procedures     Deficits      Mandates     Contact
  Number                                                                             2023-2032             2032              2023-2027          Apply?     Beginning in
                                                                                                                                                               2033?
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
S. 4902    Invent Here,    Ordered               09/28/22                 750                   0                   0       Not estimated   No             No            No           Jeremy
            Make Here for   reported                                                                                                                                                   Crimm
            Homeland
            Security Act
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
S. 4902 would, with some exceptions, require any product invented as a result of funding from the Department of Homeland Security to be manufactured in the United States. CBO estimates that
  enacting S. 4902 would not affect direct spending or revenues. CBO has not estimated the discretionary costs of implementing the bill. The bill contains no intergovernmental or private-
  sector mandates as defined in the Unfunded Mandates Reform Act.

       VII. Changes in Existing Law Made by the Bill, as Reported

    This legislation would make no change in existing law, 
within the meaning of clauses (a) and (b) of subparagraph 12 of 
rule XXVI of the Standing Rules of the Senate, because this 
legislation would not repeal or amend any provision of current 
law.

HOMELAND SECURITY ACT OF 2002

           *       *       *       *       *       *       *


SECTION 308--CONDUCT OF RESEARCH, DEVELOPMENT, DEMONSTRATION, TESTING 
                    AND EVALUATION

    (a) * * *
    (b) * * *
    (c) * * *
    (d) Preference for United States Industry.--
          (1) Definitions.--In this subsection:
                  (A) Country of concern.--The term `country of 
                concern' means a country that--
                          (i) is a covered nation, as that term 
                        is defined in section 4872(d) of title 
                        10, United States Code; or
                          (ii) the Secretary determines is 
                        engaged in conduct that is detrimental 
                        to the national security of the United 
                        States
                  (B) Funding agreement; nonprofit 
                organization; subject invention.--The terms 
                `funding agreement', `nonprofit organization', 
                and `subject invention' have the meanings given 
                those terms in section 201 of title 35, United 
                States Code.
                  (C) Relevant congressional committees.--The 
                term `relevant congressional committees' 
                means--
                          (i) the Committee on Homeland 
                        Security and Governmental Affairs of 
                        the Senate; and
                          (ii) the Committee on Homeland 
                        Security of the House of 
                        Representatives.
          (2) Preference.--Subject to the other provisions of 
        this subsection, no firm or nonprofit organization 
        which receives title to any subject invention developed 
        under a funding agreement entered into with the 
        Department and no assignee of any such firm or 
        nonprofit organization shall grant to any person the 
        exclusive right to use or sell any subject invention 
        unless such person agrees that any products embodying 
        the subject invention or produced through the use of 
        the subject invention will be manufactured 
        substantially in the United States.
          (3) Waivers.--
                  (A) In general.--Subject to subparagraph (B), 
                in individual cases, the requirement for an 
                agreement described in paragraph (2) may be 
                waived by the Secretary upon a showing by the 
                firm, nonprofit organization, or assignee that 
                reasonable but unsuccessful efforts have been 
                made to grant licenses on similar terms to 
                potential licensees that would be likely to 
                manufacture substantially in the United States 
                or that under the circumstances domestic 
                manufacture is not commercially feasible.
                  (B) Conditions on waivers granted by 
                department.--
                          (i) Before grant of waiver.--Before 
                        granting a waiver under subparagraph 
                        (A), the Secretary shall--
                                  (I) consult with the relevant 
                                congressional committees 
                                regarding the decision of the 
                                Secretary to grant the waiver; 
                                and
                                  (II) comply with the 
                                procedures developed and 
                                implemented pursuant to section 
                                70923(b)(2) of the Build 
                                America, Buy America Act 
                                (subtitle A of title IX of 
                                division G of Public Law 117-
                                58).
                          (ii) Prohibition on granting certain 
                        waivers.--The Secretary may not grant a 
                        waiver under subparagraph (A) if, as a 
                        result of the waiver, products 
                        embodying the applicable subject 
                        invention, or produced through the use 
                        of the applicable subject invention, 
                        will be manufactured substantially in a 
                        country of concern.

                                  [all]