Senate Bill 363
117th Congress(2021-2022)
Make It in America Act
Introduced
Introduced
Introduced in Senate on Feb 23, 2021
Overview
Text
S. 363 (Introduced-in-Senate)


117th CONGRESS
1st Session
S. 363


To amend chapter 83 of title 41, United States Code, to increase the requirement for American-made content, to strengthen the waiver provisions, and for other purposes.


IN THE SENATE OF THE UNITED STATES

February 23, 2021

Ms. Stabenow (for herself, Mr. Braun, Mr. Peters, Mr. Portman, and Ms. Baldwin) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs


A BILL

To amend chapter 83 of title 41, United States Code, to increase the requirement for American-made content, to strengthen the waiver provisions, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Make It in America Act”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. Regulations relating to Buy American Act.

Sec. 3. Amendments relating to Buy American Act.

Sec. 4. Made in America Office.

Sec. 5. Department of Transportation Buy America provisions.

Sec. 6. Hollings Manufacturing Extension Partnership activities.

Sec. 7. United States obligations under international agreements.

Sec. 8. Definitions.

SEC. 2. 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 to standardize and simplify how Federal agencies comply with, report on, and enforce the Buy American Act. The regulations 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) 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:

(A) A written description of the circumstances in which the head of the agency may waive the requirements of the Buy American Act.

(B) Each waiver made by the head of the agency within 30 days after making such waiver, including a detailed justification for the waiver.

(3) 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.

(4) Increasing the price preferences for domestic end products and domestic construction materials.

(5) 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, which shall be considered to be inconsistent with the public interest, including employment among entities that manufacture the articles, materials, or supplies; or

(ii) result in not awarding a contract that would boost 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) 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.

SEC. 3. 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.

“(3) USE OUTSIDE THE UNITED STATES.—

“(A) IN GENERAL.—Notwithstanding the exception described in subsection (a)(2)(A), subsection (a)(1) shall apply to articles, materials, or supplies for use outside the United States if such articles, materials, or supplies are not needed on an urgent basis or are acquired on a regular basis.

“(B) COST ANALYSIS.—In any case in which articles, materials, or supplies are to be acquired for use outside the United States and are not needed on an urgent basis or are acquired on a regular basis, before entering into a contract, an analysis shall be made of the difference in the cost of acquiring such articles, materials, or supplies from a company mining, producing, or manufacturing the articles, materials, or supplies in the United States (excluding the cost of shipping) and the cost of acquiring such articles, materials, or supplies from a company mining, producing, or manufacturing the articles, materials, or supplies outside the United States (including the cost of shipping).

“(4) DOMESTIC AVAILABILITY.—The head of a Federal agency may not determine that an article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality under subsection (a)(1) unless the head of the agency first determines that—

“(A) domestic production cannot be initiated without delaying the project for which the article, material, or supply is to be acquired; and

“(B) a substitutable article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.”.

(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 Make It in 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 Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate 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) ADDITIONAL CONTENT.—Each report required under paragraph (1) shall separately include, for the 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 this chapter with respect to articles, materials, or supplies 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 subsection (a)(2)(C)), the specific exception that was used to purchase such articles, materials, or supplies;

“(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), 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; and

“(E) a summary of—

“(i) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured inside the United States;

“(ii) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured outside the United States; and

“(iii) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured outside the United States per country that mined, produced, or manufactured such articles, materials, and supplies.

“(3) PUBLIC AVAILABILITY.—Not later than 180 days after the end of the fiscal year during which the Make It in America Act is enacted, and annually thereafter for 4 years, the Director of the Office of Management and Budget shall make the relevant report required under paragraph (1) publicly available on a website.

“(4) 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) Definitions.—Section 8301 of title 41, United States Code, is amended by adding at the end the following new paragraphs:

“(3) FEDERAL AGENCY.—The term ‘Federal agency’ has the meaning given the term ‘executive agency’ in section 133 of this title.

“(4) SUBSTANTIALLY ALL.—The term ‘substantially all’, with respect to articles, materials, or supplies mined, produced, or manufactured in the United States, means that—

“(A) the cost of the domestic components of such articles, materials, or supplies exceeds 75 percent of the total cost of all components of such articles, materials, or supplies; or

“(B) in the event that a Federal agency does not receive an offer on a contract that meets such threshold, the cost of the domestic components of such articles, materials, or supplies exceeds 60 percent of the total cost of all components of such articles, materials, or supplies.

“(5) WAIVER.—The term ‘waiver’, with respect to the acquisition of an article, material, or supply for public use, means the inapplicability of this chapter to the acquisition by reason of any of the following determinations under section 8302(a)(1) or 8303(b)(3) of this title:

“(A) A written determination by the head of the Federal agency concerned that the acquisition is inconsistent with the public interest.

“(B) A written determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable.

“(C) A written 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.”.

(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)—

(i) in subparagraph (A), by inserting “subject to subsection (c)(2)(A),” before “to articles, materials, or supplies”; and

(ii) 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 (c), 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”.

SEC. 4. 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 under subsection (c).

(3) Prepare the reports required under subsection (d) and (f).

(4) Ensure that contracting personnel at each Federal agency annually complete training 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 (e).

(6) Ensure that Federal agencies and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference statutes.

(7) Ensure the development of a domestic supply base to meet Federal procurement requirements.

(c) Review of waiver requests and inapplicability requests.—

(1) REQUIRED REVIEW.—Before a Federal agency grants a waiver or determines the inapplicability of a domestic preference statute, the head of the Federal agency shall transmit a written request for such waiver to the Made in America Director for review, together with a detailed justification for the request.

(2) NOTIFICATION OF DETERMINATION.—The Made in America Director, in consultation with the Administrator for Federal Procurement Policy and the Federal Acquisition Regulatory Council, shall review the waiver request or request to determine the inapplicability of domestic preference statutes and provide to the requesting agency a written notification approving or denying the request.

(3) DISAGREEMENTS.—

(A) NOTIFICATION.—If the head of the requesting agency disagrees with some or all of the bases for the Made in America Director's determination under paragraph (2), the head of the agency shall inform the Made in America Director in writing.

(B) RESOLUTION.—To the extent permitted by law, disagreements or conflicts between the Made in America Director and the agency head shall be resolved in accordance with procedures that parallel those set forth in section 7 of Executive Order No. 12866, dated September 30, 1993 (related to regulatory planning and review), with respect to the Director of the Office of Information and Regulatory Affairs within the Office of Management and Budget.

(4) NOTIFICATION OF SPECIAL CIRCUMSTANCES.—If a Federal agency is obligated by law to act more quickly than otherwise provided for in accordance with the review procedures established under this section, the head of the agency shall notify the Made in America Director of the circumstances as soon as possible.

(d) 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 Congress on the extent to which, in each of fiscal years 2018, 2019, and 2020 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 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.

(e) 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.

(2) REVIEW OF RECIPROCAL PROCUREMENT MEMORANDA OF UNDERSTANDING.—The Made in America Director shall review and be responsible for approving 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.

(f) Report on use of Made in America Laws.—Not later than 90 days after the date of the enactment of this Act, the Made in America Director shall submit to Congress each report on the use of Made in America Laws received by the Made in America Director pursuant to section 11 of Executive Order No. 14005, dated January 25, 2021 (relating to ensuring the future is made in all of America by all of America’s workers).

(g) 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 5(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”); and

(6) 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, and manufactured goods offered in the United States.

SEC. 5. Department of Transportation Buy America provisions.

(a) Definitions.—In this section:

(1) BUY AMERICA LAW.—The term “Buy America law” means any of the following:

(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.

(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, or airport improvement projects;

(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, or manufactured good or product 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 Congress 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.

SEC. 6. 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 ensure that businesses participating in the Hollings Manufacturing Extension Partnership are made aware of Federal 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!.

SEC. 7. United States obligations under international agreements.

This Act, and the amendments made by this Act, shall be applied in a manner consistent with United States obligations under international agreements.

SEC. 8. Definitions.

In this Act:

(1) BERRY AMENDMENT.—The term “Berry Amendment” means section 4862 of title 10, United States Code, as redesignated by section 1870(c)(2) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021.

(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) WAIVER.—The term “waiver”, with respect to the acquisition of an article, material, or supply for public use, means, other than for purposes of section 5, 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)(3) 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.