I 117th CONGRESS 1st Session H. R. 5059 IN THE HOUSE OF REPRESENTATIVES August 20, 2021 Mr. Garamendi introduced the following bill; which was referred to the Committee on Oversight and Reform , and in addition to the Committee on Transportation and Infrastructure , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 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.

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. Technical assistance partnership and consultation supporting Department of Transportation Buy America requirements. Sec. 3. Regulations relating to Buy American Act. Sec. 4. Amendments relating to Buy American Act. Sec. 5. Made in America Office. Sec. 6. Hollings Manufacturing Extension Partnership activities. Sec. 7. United States obligations under international agreements. Sec. 8. Definitions. 2. Technical assistance partnership and consultation supporting Department of Transportation Buy America requirements (a) Definitions In this section: (1) Buy America law The term Buy America law means— (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; and (E) any other domestic content procurement preference for an infrastructure project under the jurisdiction of the Secretary. (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, airport improvement projects, and other infrastructure projects under the jurisdiction of the Secretary; (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, manufactured product, or construction material 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 the Committee on Commerce, Science, and Transportation, the Committee on Banking, Housing, and Urban Affairs, the Committee on Environment and Public Works, and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Transportation and Infrastructure, the Committee on Oversight and Reform, and the Committee on Science, Space, and Technology of the House of Representatives 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. 3. 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 (hereinafter referred to as Director ), acting through the Administrator for Federal Procurement Policy and, in consultation with the Federal Acquisition Regulatory Council, shall promulgate final regulations or other policy or management guidance, as appropriate, to standardize and simplify how Federal agencies comply with, report on, and enforce the Buy American Act. The regulations or other policy or management guidance 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) Guidelines to ensure Federal agencies base determinations of non-availability on appropriate considerations, including anticipated project delays and lack of substitutable articles, materials, and supplies mined, produced, or manufactured in the United States, when making determinations of non-availability under sections 8302(a)(1) and 8303(b)(1)(B) of title 41, United States Code. (3) (A) 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: (i) A written description of the circumstances in which the head of the agency may waive the requirements of the Buy American Act. (ii) Each waiver made by the head of the agency within 30 days after making such waiver, including a justification with sufficient detail to explain the basis for the waiver. (B) The procedures established under this paragraph shall ensure that the head of an agency, in consultation with the head of the Made in America Office established under section 5(a), may limit the publication of classified information, trade secrets, or other information that could damage the United States. (4) 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. (5) An increase to the price preferences for domestic end products and domestic construction materials. (6) 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 result in a decrease in employment in the United States, including employment among entities that manufacture the articles, materials, or supplies. (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) Sense of Congress on increasing domestic content requirements It is the sense of Congress that the Federal Acquisition Regulatory Council should amend the Federal Acquisition Regulation to increase the domestic content requirements for domestic end products and domestic construction material to 75 percent, or, in the event of no qualifying offers, 60 percent. (d) 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. 4. 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. . (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 Congress 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) 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) Definition Section 8301 of title 41, United States Code, is amended by adding at the end the following new paragraph: (3) Federal agency The term Federal agency has the meaning given the term executive agency in section 133 of this title. . (e) Conforming amendments Title 41, United States Code, is amended— (1) in section 8301(1) by inserting Guam, the Northern Mariana Islands, after Samoa, ; (2) 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), 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 (3) 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 (d), as redesignated by subsection (b)(1) of this section, 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 Section 1908(b)(2)(A) of title 41, United States Code, is amended by striking chapter 67 and inserting chapters 67 and 83 . 5. 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. (3) Grant approval or disapproval of any agency requests to issue a waiver or inapplicability determination related to a domestic preference statute. (4) Prepare the reports required under subsections (c) and (e). (5) Ensure that Federal contracting personnel, financial assistance personnel, and non-Federal recipients are regularly trained on obligations under the Buy American Act and other agency-specific domestic preference statutes. (6) Conduct the review of reciprocal defense agreements required under subsection (d). (7) Ensure that Federal agencies, Federal financial assistance recipients, and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference statutes. (8) Support executive branch efforts to develop and sustain a domestic supply base to meet Federal procurement requirements. (c) Transfer The Director of the Office of Management and Budget shall provide for the transfer of the functions, personnel, assets, and liabilities of the Made in America Office within the Office of Management and Budget, as in existence on the day before the date of enactment of this Act, to the Made in America Office established by subsection (a). (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 the relevant congressional committees on the extent to which, in each of the three fiscal years prior to the date of enactment of this Act, 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, where available, 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 and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State. (2) Review of reciprocal procurement memoranda of understanding The Made in America Director shall review 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 to assess whether domestic entities will have equal and proportional access under the memoranda of understanding and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, the United States Trade Representative, and the Secretary of State. (f) Report on use of Made in America laws The Made in America Director shall submit to the relevant congressional committees a summary of each report on the use of Made in America Laws received by the Made in America Director pursuant to section 11 of Executive Order 14005, dated January 25, 2021 (relating to ensuring the future is made in all of America by all of America’s workers), not later than 90 days after the date of the enactment of this Act or receipt of the reports required under section 11 of such Executive order, whichever is later. (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 8(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 4863 of title 10 (commonly referred to as the specialty metals clause ). (6) Laws requiring domestic preference for maritime transport, including the Merchant Marine Act, 1920 ( Public Law 66–261 ), commonly known as the Jones Act . (7) 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, construction materials, and manufactured goods offered in the United States. 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 work with the Director of the Hollings Manufacturing Extension Partnership, as necessary, to ensure businesses participating in this Partnership are aware of their 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! 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. 8. Definitions In this Act: (1) Berry Amendment The term Berry Amendment means section 4862 of title 10, United States Code. (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) Relevant congressional committees The term relevant congressional committees means— (A) the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and (B) the Committee on Oversight and Reform, the Committee on Armed Services, and the Committee on Transportation and Infrastructure of the House of Representatives. (5) United States The term United States means each of the States, the District of Columbia, and any territory or possession of the United States. (6) Waiver The term waiver , with respect to the acquisition of an article, material, or supply for public use, means 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) 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.