Make It in America Act

II 117TH CONGRESS 1ST SESSION S. 363 To amend chapter 83 of title 41, United States Code, to increase the require- ment 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 Af- fairs 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Make It in America Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Regulations relating to Buy American Act. VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 363 IS 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. 1 (a) IN GENERAL.—Not later than 1 year after the 2 date of the enactment of this Act, the Director of the Of- 3 fice of Management and Budget (‘‘Director’’), acting 4 through the Administrator for Federal Procurement Pol- 5 icy and, in consultation with the Federal Acquisition Reg- 6 ulatory Council, shall promulgate final regulations to 7 standardize and simplify how Federal agencies comply 8 with, report on, and enforce the Buy American Act. The 9 regulations shall include, at a minimum, the following: 10 (1) Guidelines for Federal agencies to deter- 11 mine, for the purposes of applying sections 8302(a) 12 and 8303(b)(3) of title 41, United States Code, the 13 circumstances under which the acquisition of arti- 14 cles, materials, or supplies mined, produced, or man- 15 ufactured in the United States is inconsistent with 16 the public interest. 17 (2) Uniform procedures for each Federal agen- 18 cy to make publicly available, in an easily identifi- 19 able location on the website of the agency, and with- 20 in the following time periods, the following informa- 21 tion: 22 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 363 IS (A) A written description of the cir- 1 cumstances in which the head of the agency 2 may waive the requirements of the Buy Amer- 3 ican Act. 4 (B) Each waiver made by the head of the 5 agency within 30 days after making such waiv- 6 er, including a detailed justification for the 7 waiver. 8 (3) Guidelines for Federal agencies to ensure 9 that a project is not disaggregated for purposes of 10 avoiding the applicability of the requirements under 11 the Buy American Act. 12 (4) Increasing the price preferences for domes- 13 tic end products and domestic construction mate- 14 rials. 15 (5) Amending the definitions of ‘‘domestic end 16 product’’ and ‘‘domestic construction material’’ to 17 ensure that iron and steel products are, to the great- 18 est extent possible, made with domestic components. 19 (b) GUIDELINES RELATING TO WAIVERS.— 20 (1) INCONSISTENCY WITH PUBLIC INTEREST.— 21 (A) IN GENERAL.—With respect to the 22 guidelines developed under subsection (a)(1), 23 the Administrator shall seek to minimize waiv- 24 ers related to contract awards that— 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 363 IS (i) result in a decrease in employment 1 in the United States, which shall be con- 2 sidered to be inconsistent with the public 3 interest, including employment among enti- 4 ties that manufacture the articles, mate- 5 rials, or supplies; or 6 (ii) result in not awarding a contract 7 that would boost domestic employment. 8 (B) COVERED EMPLOYMENT.—For pur- 9 poses of subparagraph (A), employment refers 10 to positions directly involved in the manufacture 11 of articles, materials, or supplies, and does not 12 include positions related to management, re- 13 search and development, or engineering and de- 14 sign. 15 (2) ASSESSMENT ON USE OF DUMPED OR SUB- 16 SIDIZED FOREIGN PRODUCTS.— 17 (A) IN GENERAL.—To the extent otherwise 18 permitted by law, before granting a waiver in 19 the public interest to the guidelines developed 20 under subsection (a)(1) with respect to a prod- 21 uct sourced from a foreign country, a Federal 22 agency shall assess whether a significant por- 23 tion of the cost advantage of the product is the 24 result of the use of dumped steel, iron, or man- 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 363 IS ufactured goods or the use of injuriously sub- 1 sidized steel, iron, or manufactured goods. 2 (B) CONSULTATION.—The Federal agency 3 conducting the assessment under subparagraph 4 (A) shall consult with the International Trade 5 Administration in making the assessment if the 6 agency considers such consultation to be help- 7 ful. 8 (C) USE OF FINDINGS.—The Federal 9 agency conducting the assessment under sub- 10 paragraph (A) shall integrate any findings from 11 the assessment into its waiver determination. 12 (c) DEFINITION OF END PRODUCT MANUFACTURED 13 IN THE UNITED STATES.—Not later than 1 year after the 14 date of the enactment of this Act, the Federal Acquisition 15 Regulatory Council shall amend part 25 of the Federal 16 Acquisition Regulation to provide a definition for ‘‘end 17 product manufactured in the United States,’’ including 18 guidelines to ensure that manufacturing processes in- 19 volved in production of the end product occur domestically. 20 SEC. 3. AMENDMENTS RELATING TO BUY AMERICAN ACT. 21 (a) SPECIAL RULES RELATING TO AMERICAN MATE- 22 RIALS REQUIRED FOR PUBLIC USE.—Section 8302 of title 23 41, United States Code, is amended by adding at the end 24 the following new subsection: 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 363 IS ‘‘(c) SPECIAL RULES.—The following rules apply in 1 carrying out the provisions of subsection (a): 2 ‘‘(1) IRON AND STEEL MANUFACTURED IN THE 3 UNITED STATES.—For purposes of this section, 4 manufactured articles, materials, and supplies of 5 iron and steel are deemed manufactured in the 6 United States only if all manufacturing processes in- 7 volved in the production of such iron and steel, from 8 the initial melting stage through the application of 9 coatings, occurs in the United States. 10 ‘‘(2) LIMITATION ON EXCEPTION FOR COMMER- 11 CIALLY AVAILABLE OFF-THE-SHELF ITEMS.—Not- 12 withstanding any law or regulation to the contrary, 13 including section 1907 of this title and the Federal 14 Acquisition Regulation, the requirements of this sec- 15 tion apply to all iron and steel articles, materials, 16 and supplies. 17 ‘‘(3) USE OUTSIDE THE UNITED STATES.— 18 ‘‘(A) IN GENERAL.—Notwithstanding the 19 exception described in subsection (a)(2)(A), 20 subsection (a)(1) shall apply to articles, mate- 21 rials, or supplies for use outside the United 22 States if such articles, materials, or supplies are 23 not needed on an urgent basis or are acquired 24 on a regular basis. 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 363 IS ‘‘(B) COST ANALYSIS.—In any case in 1 which articles, materials, or supplies are to be 2 acquired for use outside the United States and 3 are not needed on an urgent basis or are ac- 4 quired on a regular basis, before entering into 5 a contract, an analysis shall be made of the dif- 6 ference in the cost of acquiring such articles, 7 materials, or supplies from a company mining, 8 producing, or manufacturing the articles, mate- 9 rials, or supplies in the United States (exclud- 10 ing the cost of shipping) and the cost of acquir- 11 ing such articles, materials, or supplies from a 12 company mining, producing, or manufacturing 13 the articles, materials, or supplies outside the 14 United States (including the cost of shipping). 15 ‘‘(4) DOMESTIC AVAILABILITY.—The head of a 16 Federal agency may not determine that an article, 17 material, or supply is not mined, produced, or manu- 18 factured in the United States in sufficient and rea- 19 sonably available commercial quantities and of a sat- 20 isfactory quality under subsection (a)(1) unless the 21 head of the agency first determines that— 22 ‘‘(A) domestic production cannot be initi- 23 ated without delaying the project for which the 24 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 363 IS article, material, or supply is to be acquired; 1 and 2 ‘‘(B) a substitutable article, material, or 3 supply is not mined, produced, or manufactured 4 in the United States in sufficient and reason- 5 ably available commercial quantities and of a 6 satisfactory quality.’’. 7 (b) PRODUCTION OF IRON AND STEEL FOR PUR- 8 POSES OF CONTRACTS FOR PUBLIC WORKS.—Section 9 8303 of title 41, United States Code, is amended— 10 (1) by redesignating subsection (c) as sub- 11 section (d); and 12 (2) by inserting after subsection (b) the fol- 13 lowing new subsection: 14 ‘‘(c) SPECIAL RULES.— 15 ‘‘(1) PRODUCTION OF IRON AND STEEL.—For 16 purposes of this section, manufactured articles, ma- 17 terials, and supplies of iron and steel are deemed 18 manufactured in the United States only if all manu- 19 facturing processes involved in the production of 20 such iron and steel, from the initial melting stage 21 through the application of coatings, occurs in the 22 United States. 23 ‘‘(2) LIMITATION ON EXCEPTION FOR COMMER- 24 CIALLY AVAILABLE OFF-THE-SHELF ITEMS.—Not- 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 363 IS withstanding any law or regulation to the contrary, 1 including section 1907 of this title and the Federal 2 Acquisition Regulation, the requirements of this sec- 3 tion apply to all iron and steel articles, materials, 4 and supplies used in contracts described in sub- 5 section (a).’’. 6 (c) ANNUAL REPORT.—Subsection (b) of section 7 8302 of title 41, United States Code, is amended to read 8 as follows: 9 ‘‘(b) REPORTS.— 10 ‘‘(1) IN GENERAL.—Not later than 180 days 11 after the end of the fiscal year during which the 12 Make It in America Act is enacted, and annually 13 thereafter for 4 years, the Director of the Office of 14 Management and Budget, in consultation with the 15 Administrator of General Services, shall submit to 16 the Committee on Oversight and Government Re- 17 form of the House of Representatives and the Com- 18 mittee on Homeland Security and Governmental Af- 19 fairs of the Senate a report on the total amount of 20 acquisitions made by Federal agencies in the rel- 21 evant fiscal year of articles, materials, or supplies 22 acquired from entities that mine, produce, or manu- 23 facture the articles, materials, or supplies outside 24 the United States. 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 363 IS ‘‘(2) ADDITIONAL CONTENT.—Each report re- 1 quired under paragraph (1) shall separately include, 2 for the fiscal year covered by the report— 3 ‘‘(A) the dollar value of any articles, mate- 4 rials, or supplies that were mined, produced, or 5 manufactured outside the United States, in the 6 aggregate and by country; 7 ‘‘(B) an itemized list of all waivers made 8 under this chapter with respect to articles, ma- 9 terials, or supplies and the country where such 10 articles, materials, or supplies were mined, pro- 11 duced, or manufactured; 12 ‘‘(C) if any articles, materials, or supplies 13 were acquired from entities that mine, produce, 14 or manufacture such articles, materials, or sup- 15 plies outside the United States due to an excep- 16 tion (that is not the micro-purchase threshold 17 exception described under subsection (a)(2)(C)), 18 the specific exception that was used to purchase 19 such articles, materials, or supplies; 20 ‘‘(D) if any articles, materials, or supplies 21 were acquired from entities that mine, produce, 22 or manufacture such articles, materials, or sup- 23 plies outside the United States pursuant to a 24 reciprocal defense procurement memorandum of 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 363 IS understanding (as described in section 8304), 1 or a trade agreement or least developed country 2 designation described in subpart 25.400 of the 3 Federal Acquisition Regulation, a citation to 4 such memorandum of understanding, trade 5 agreement, or designation; and 6 ‘‘(E) a summary of— 7 ‘‘(i) the total procurement funds ex- 8 pended on articles, materials, and supplies 9 mined, produced, or manufactured inside 10 the United States; 11 ‘‘(ii) the total procurement funds ex- 12 pended on articles, materials, and supplies 13 mined, produced, or manufactured outside 14 the United States; and 15 ‘‘(iii) the total procurement funds ex- 16 pended on articles, materials, and supplies 17 mined, produced, or manufactured outside 18 the United States per country that mined, 19 produced, or manufactured such articles, 20 materials, and supplies. 21 ‘‘(3) PUBLIC AVAILABILITY.—Not later than 22 180 days after the end of the fiscal year during 23 which the Make It in America Act is enacted, and 24 annually thereafter for 4 years, the Director of the 25 VerDate Sep 11 2014 20:14 Mar 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S363.IS S363 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 363 IS Office of Management and Budget shall make the 1 relevant report required under paragraph (1) pub- 2 licly available on a website. 3 ‘‘(4) EXCEPTION FOR INTELLIGENCE COMMU- 4 NITY.—This subsection does not apply to acquisi [Text truncated for display. 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