[Senate Report 117-268]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 667
117th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      117-268
_______________________________________________________________________

                                     



                     BUILD AMERICA, BUY AMERICA ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1303

             TO ENSURE THAT CERTAIN FEDERAL INFRASTRUCTURE
                 PROGRAMS REQUIRE THE USE OF MATERIALS
         PRODUCED IN THE UNITED STATES, AND FOR OTHER PURPOSES










[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








               December 19, 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
                  Michelle M. Benecke, Senior Counsel
                Pamela Thiessen, Minority Staff Director
            Sam J. Mulopulos, Minority Deputy Staff Director
       Jeremy H. Hayes, Minority Senior Professional Staff Member
                     Laura W. Kilbride, Chief Clerk 
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     
                     

                                                      Calendar No. 667
117th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      117-268

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



 
                     BUILD AMERICA, BUY AMERICA ACT

                                _______
                                

               December 19, 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. 1303]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1303) to ensure 
that certain Federal infrastructure programs require the use of 
materials produced in the United States, 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 of the Bill, as Reported.............  3
  V. Evaluation of Regulatory Impact..................................  7
 VI. Changes in Existing Law Made by the Bill, as Reported............  8

                         I. PURPOSE AND SUMMARY

    S. 1303, the Build America, Buy America Act, updates the 
Buy America and Buy American statutes.\1\ The bill extends Buy 
America regulations to all federally-assisted infrastructure 
projects, and expands the definition of infrastructure for the 
purposes of these regulations. The bill also instructs the 
Office of Management and Budget (OMB) to promulgate clarifying 
guidelines to strengthen Buy American requirements, closes 
certain loopholes in the waiver processes for both statutes, 
and creates a new ``Made in America Office'' within OMB.

              II. BACKGROUND AND NEED FOR THE LEGISLATION
---------------------------------------------------------------------------

    \1\49 U.S.C. 5323(j) (commonly referred to as Buy Americao); 41 
U.S.C. 8301 (commonly referred to as the ``Buy American Act'').
---------------------------------------------------------------------------
    The Build America, Buy America Act (S.1303) will help to 
ensure that taxpayer dollars are used to buy domestically-
manufactured products and materials, thereby strengthening 
domestic supply chains and reducing the need to spend taxpayer 
dollars on foreign-made goods.
    Every year, federal agencies spend billions to procure 
goods and supplies to support agency missions and on materials 
and assistance for infrastructure projects. Buy American and 
Buy America regulations establish a domestic preference for use 
of these taxpayer funds. Buy America preferences apply to 
federally-funded public works and infrastructure projects, such 
as the construction of highways, railways, and rapid transit 
systems. The Buy American Act of 1933 gives a preference for 
federal agencies to directly procure domestically produced 
goods.\2\ Over time, however, loopholes, waivers, and outright 
non-compliance by federal agencies have weakened the 
effectiveness of these provisions.
---------------------------------------------------------------------------
    \2\41 U.S.C. Sec. 8302.
---------------------------------------------------------------------------
    The first title of the bill (Title I) works to broaden the 
impact of Buy America preferences. First, this title expands 
the definition of infrastructure for the purposes of these 
preferences. Buy America requirements have traditionally 
extended to public works transportation and water-related 
infrastructure. This bill extends Buy America coverage to other 
infrastructure projects including transmission facilities, 
structures and equipment of electric utilities, broadband 
infrastructure, and real property and buildings.
    Title I also adds materials within these infrastructure 
projects to which the Buy America requirements apply. 
Previously, Buy America preferences applied only to iron, 
steel, and certain manufactured goods. This bill expands these 
requirements to include nonferrous metals, such as copper used 
in electric wiring; plastic- and polymer-based products; glass, 
including optical fiber; and certain other construction 
materials, such as lumber and drywall.
    In addition, this bill adds guardrails to agencies' 
granting of Buy America waivers by requiring agencies to 
publish written explanations for the waiver on a publicly 
available and easily accessible website designated by OMB, and 
to provide for at least 15 days for public comment.
    Finally, Title I codifies President Biden's mandate in his 
Executive Order ``Ensuring the Future is Made in All of America 
by All of America's Workers,''\3\ which directed agencies to 
partner with the Hollings Manufacturing Extension Partnership 
(MEP). This partnership will ensure that small- and medium-
sized manufacturers within the MEP's national network are given 
a meaningful opportunity to provide products for federally-
funded transportation projects.
---------------------------------------------------------------------------
    \3\Exec. Order No. 14005, 86 Fed. Reg. 7475 (Jan. 25, 2021).
---------------------------------------------------------------------------
    The second title of this bill (Title II) focuses on the Buy 
American Act. This title requires OMB to promulgate rules to 
strengthen the Buy American Act by standardizing, simplifying, 
and clarifying how federal agencies comply with, report on, and 
enforce the requirements of the Act. These new rules and 
guidelines are meant to limit the use of waivers across federal 
agencies. For example, OMB must clarify the circumstances in 
which agencies may receive waivers, such as when acquisition of 
certain items would be ``inconsistent with the public 
interest,'' as the original law provides, and the appropriate 
considerations for determinations of non-availability. OMB must 
also provide uniform procedures for what information agencies 
must make public about their waivers and where they must post 
this information.
    Finally, to further monitor the waiver process, Title II 
creates a ``Made in America Office'' within the OMB with 
authority to review agency use of waivers. The purpose of this 
office is to maximize and enforce compliance with domestic 
preference statutes and ensure that any waivers are applied 
clearly, consistently, and transparently across federal 
agencies.

                        III. LEGISLATIVE HISTORY

    Senator Sherrod Brown (D-OH) introduced S. 1303, the Build 
America, Buy America Act, on April 22, 2021, with Ranking 
Member Portman (R-OH), Chairman Peters (D-MI), and Senator 
Braun (R-IN) as co-sponsors. The bill was referred to the 
Senate Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 1303 at a business meeting on 
May 12, 2021. During the business meeting, a substitute 
amendment was offered by Chairman Peters and Ranking Member 
Portman and adopted by unanimous consent as modified. The 
modification was also adopted by unanimous consent. Senators 
present were Peters, Carper, Hassan, Sinema, Rosen, Padilla, 
Ossoff, Portman, Johnson, Paul, Lankford, Romney, Scott, and 
Hawley.
    The substitute amendment adopted for S. 1303 merged the 
Build America, Buy America Act with Senator Baldwin's Made in 
America Act (S. 1094) and Senator Stabenow's Make It In America 
Act (S. 363). The merged text is divided into two sections: 
Title I, which tightens loopholes in Buy America, and Title II, 
which incorporates the bulk of Senator Stabenow's bill updating 
Buy American Act waiver rules and domestic content 
requirements, and creating a Made in America office.
    Amendment 1 to S. 1303 was offered by Senator Johnson (R-
WI), which was not adopted by a roll call vote of 7 yeas to 7 
nays. The amendment would have prohibited the cancellation of 
border wall construction and also would have prohibited the use 
of funds to pay for cancellation penalties. Senators in favor 
were Portman, Johnson, Paul, Lankford, Romney, Scott, and 
Hawley. Senators not in favor were Peters, Carper, Hassan, 
Sinema, Rosen, Padilla, and Ossoff.
    The Committee ordered the bill reported favorably by voice 
vote as amended by the Peters-Portman Substitute Amendment as 
modified. Senators Paul and Romney were recorded ``No.'' 
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; table of contents

    This section provides that the bill may be cited as the 
``Build America, Buy America Act,'' and provides a table of 
contents for Titles I and II of the Act.
            Title I--Build America, Buy America

Section 101. Findings

    Section 101 provides findings by Congress related to the 
determination that when the federal government makes 
investments in United States infrastructure, the iron, steel, 
manufactured products, and construction materials used in 
federally assisted infrastructure projects should be produced 
in the United States by American workers.

Section 102. Definitions

    Section 102 provides definitions of terms used in the Act, 
including terms that inform the scope and application of 
domestic content procurement preferences to all infrastructure 
projects that receive federal financial assistance, commonly 
known as ``Buy America'' requirements. The definition of 
``infrastructure'' is broadened to include broadband and 
certain other categories that have not previously been covered. 
The definition of ``produced in the United States'' establishes 
standards for manufactured products, ensuring that Buy America 
coverage for manufactured products is not weaker than current 
regulations. Terms defined are ``deficient program,'' 
``domestic content procurement preference,'' ``federal 
agency,'' ``federal financial assistance,'' ``infrastructure,'' 
``produced in the United States,'' and ``project.''

Section 103. Identification of deficient programs

    Section 103 requires the head of each federal agency to 
submit to OMB and to Congress within 60 days of enactment a 
report that identifies each program that provides financial 
assistance for infrastructure administered by the federal 
agency. The head of each federal agency must include in the 
report a list of deficient programs for which Buy America 
requirements specified in the Act do not apply or are subject 
to blanket waivers. This report must also be published in the 
Federal Register.

Section 104. Application of buy America preference

    Section 104 establishes a governmentwide requirement, 
effective 180 days after the date of enactment of the Act, 
whereby no federal financial assistance for infrastructure may 
be used for a project unless all of the iron, steel, 
manufactured products, and construction materials used in the 
project are produced in the United States. The governmentwide 
requirement is applied to all federal infrastructure programs, 
including programs identified as deficient under Section 103.
    This section also establishes a waiver process in which 
domestic procurement preferences may be waived if the head of a 
federal agency determines that (1) applying the domestic 
content procurement preference would be inconsistent with the 
public interest, (2) the applicable products are not made in 
the United States in sufficient and reasonably available 
quantities or are not of satisfactory quality, or (3) applying 
the domestic preference would increase the cost of the overall 
project by more than 25 percent. Before issuing a waiver, the 
head of a federal agency must make a detailed explanation for 
the waiver publicly available, and provide at least 15 days for 
public comment.
    This section also instates a two-year automatic sunset on 
waivers of general applicability. An agency head may reissue a 
general applicability waiver only after publishing two notices 
in the Federal Register: one prior to and one in response to a 
30-day period of public comment.

Section 105. OMB guidance and standards

    Section 105 requires OMB to issue guidance to assist 
federal agencies in complying with the Act and, if necessary, 
to update federal regulations related to the terms and 
conditions of awards of federal financial assistance with 
regard to Buy America requirements under this Act.
    The section also directs the Director of OMB to issue 
standards within 180 days of enactment for determining whether 
a product is manufactured domestically in the case of 
construction materials.

Section 106. Technical assistance partnership and consultation 
        supporting Department of Transportation Buy America 
        requirements

    Section 106 requires the establishment of a technical 
assistance partnership and consultation process regarding 
waivers between the Secretary of Transportation and the 
Secretary of Commerce, acting through the Director of the 
National Institute of Standards and Technology, within 90 days 
of enactment. Before granting a written waiver under a Buy 
American law, the Transportation Secretary is directed to 
consult with the Director of the Hollings Manufacturing 
Extension Partnership regarding whether there is a domestic 
entity that can provide the iron, steel, manufactured product, 
or construction material that is the subject of the proposed 
waiver. This section also requires the Secretary to submit an 
annual report to relevant congressional committees on the 
consultation process, waivers requested and granted, and an 
update on the challenges and gaps in the domestic supply base.

Section 107. Application

    Section 107 clarifies that the requirements established 
under Title I of this Act apply to a federal program only to 
the extent that current Buy America requirements do not already 
apply or are deficient, as specified in this Act. If present 
Buy America requirements for an infrastructure program meet the 
standards of section 104 of this Act, this Title should not 
impact those requirements.

Title II--Make it in America

            Section 201. Regulations relating to Buy American Act
    Section 201 mandates that, within one year of enactment, 
OMB, in consultation with the Federal Acquisition Regulatory 
Council (FAR Council), shall standardize and simplify how 
federal agencies comply with and report on procurements subject 
to the Buy American Act (chapter 83 of title 41, U.S.C., 
``BAA''). The process shall include the following:
           Guidelines to determine public interest 
        exceptions.
           Guidelines to ensure non-availability 
        waivers are tied to appropriate considerations, 
        including anticipated project delays and lack of 
        substitutable articles, materials, and supplies mined, 
        produced, or manufactured in the United States.
           Uniform procedures for each federal agency 
        to post on their website each BAA waiver issued by the 
        head of the agency (with justifications) within 30 days 
        of the waiver's issuance.
           Guidelines to ensure a project is not 
        disaggregated for purposes of avoiding the 
        applicability of the requirements under the BAA.
           An increase to the price preference for 
        domestic offers.
           Amending the definition of ``domestic end 
        products'' and ``domestic construction material'' to 
        ensure that iron and steel products purchased by the 
        federal government maximize domestic components.
    This section also establishes guidelines that will minimize 
the use of the ``public interest waiver'' to the BAA if the 
waiver will result in a decrease in domestic employment or 
prevent a boost in domestic employment. Furthermore, before 
issuing a public interest waiver to purchase a foreign sourced 
product, federal agencies must assess whether the cost 
advantage between a foreign offer and a domestic offer is due 
to dumped steel, iron, or manufactured products.
    The section includes a Sense of Congress provision that 
calls on the FAR Council to raise domestic content requirements 
for products purchased for federal use and for construction 
materials used in federal public works projects. This provision 
calls for increasing domestic content requirements to 75 
percent, or to 60 percent if there are no qualifying offers.
    Finally, this section directs the FAR Council to amend Part 
25 of the Federal Acquisition Regulation to define ``end 
product manufactured in the United States,'' including 
guidelines to ensure that manufacturing processes involved in 
production of the end product occur domestically.

Section 202. Amendments relating to Buy American Act

    Section 202 adds language to sections 8302 and 8303 of the 
BAA to stipulate that 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 occurs in the United States.
    This section also adds an annual report to section 8302 of 
the BAA. The OMB Director must submit a report to the listed 
congressional committees within 180 days of the end of the 
fiscal year during which the Act is enacted. The report must 
provide the total amount of acquisitions made by federal 
agencies in the relevant fiscal year of articles, materials, or 
supplies acquired that were mined, produced, or manufactured 
outside the United States. An exception is provided for the 
intelligence community.
    This section also adds a definition for ``federal agency'' 
to the BAA, and provides for a number of conforming amendments.
    Finally, this section excludes the acquisition-related 
dollar thresholds in the BAA from the Title 41 inflation 
adjustment requirement.

Section 203. Made in America Office

    Section 203 establishes a ``Made in America Office'' within 
OMB. This office is charged with overseeing and enforcing 
compliance with domestic preference statutes, which include the 
Buy American Act, Buy America requirements in federal 
transportation programs, the Berry Amendment, and other 
domestic preference statutes (as defined in the text). This 
section outlines numerous duties for the Made in America Office 
Director, including bolstering the use of the Hollings 
Manufacturing Extension Partnership network for federal 
procurement purposes, reviewing the Defense Department's use of 
reciprocal defense procurement agreements, and issuing annual 
reports on federal procurement spending in the context of this 
Act's requirements. Not later than 90 days after enactment of 
this Act, the Director must also submit to the relevant 
congressional committees a summary of each report on the use of 
Made in America laws received by the Director pursuant to 
section 11 of Executive Order 14005.

Section 204. Hollings Manufacturing Extension Partnership activities

    Section 204 directs the head of each federal agency to 
ensure that businesses participating in the Manufacturing 
Extension Partnership network are made aware of federal 
contracting opportunities. This section also calls for 
businesses participating in the Partnership network to be 
automatically enrolled in ``GSA Advantage!''

Section 205. United States obligations under international agreements

    Section 205 calls for all amendments and directives in this 
title to be applied in a manner consistent with U.S. 
international trade agreements.

Section 206. Definitions

    Section 206 provides definitions for the terms ``Berry 
Amendment,'' ``Buy American Act,'' ``federal agency,'' 
``relevant congressional committees,'' and ``waiver.''

Section 207. Prospective amendments to internal cross-references

    Section 207 provides instructions for amendments to cross-
references in the Act that are to take effect on January 21, 
2022.

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

    The changes in law set forth in this bill were included in 
the Infrastructure Investment and Jobs Act of 2021 (Pub. L. 
117-58, Title IX), which became law before this bill was 
reported out of committee. These changes in law are now moot 
and therefore are not reflected in this section.

                                  [all]