Build America, Buy America Act

II Calendar No. 667 117TH CONGRESS 2D SESSION S. 1303 [Report No. 117–268] To ensure that certain Federal infrastructure programs require the use of materials produced in the United States, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 22, 2021 Mr. BROWN (for himself, Mr. PORTMAN, Mr. PETERS, and Mr. BRAUN) intro- duced the following bill; which was read twice and referred to the Com- mittee on Homeland Security and Governmental Affairs DECEMBER 19, 2022 Reported by Mr. PETERS, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To ensure that certain Federal infrastructure programs re- quire the use of materials produced in the United States, 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. 3 This Act may be cited as the ‘‘Build America, Buy 4 America Act’’. 5 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1303 RS SEC. 2. FINDINGS. 1 Congress finds that— 2 (1) the United States must make significant in- 3 vestments to install, upgrade, or replace the public 4 works infrastructure of the United States; 5 (2) with respect to investments in the infra- 6 structure of the United States, taxpayers expect that 7 their public works infrastructure will be produced in 8 the United States by American workers; 9 (3) United States taxpayer dollars invested in 10 public infrastructure should not be used to reward 11 companies that have moved their operations, invest- 12 ment dollars, and jobs to foreign countries or foreign 13 factories, particularly those that do not share or 14 openly flout the commitments of the United States 15 to environmental, worker, and workplace safety pro- 16 tections; 17 (4) in procuring materials for public works 18 projects, entities using taxpayer-financed Federal as- 19 sistance should give a commonsense procurement 20 preference for the materials and products produced 21 by companies and workers in the United States in 22 accordance with the high ideals embodied in the en- 23 vironmental, worker, workplace safety, and other 24 regulatory requirements of the United States; 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1303 RS (5) the benefits of domestic content preferences 1 extend beyond economics; 2 (6) by incentivizing domestic manufacturing, 3 domestic content preferences reinvest tax dollars in 4 companies and processes using the highest labor and 5 environmental standards in the world; 6 (7) strong domestic content preference policies 7 act to prevent shifts in production to countries that 8 rely on production practices that are significantly 9 less energy efficient and far more polluting than 10 those in the United States; 11 (8) for over 75 years, Buy America and other 12 domestic preference laws have been part of the 13 United States procurement policy, ensuring that the 14 United States can build and rebuild the infrastruc- 15 ture of the United States with high-quality Amer- 16 ican-made materials; 17 (9) Buy America laws create demand for do- 18 mestically produced goods, helping to sustain and 19 grow domestic manufacturing and the millions of 20 jobs domestic manufacturing supports throughout 21 product supply chains; 22 (10) as of the date of enactment of this Act, 23 domestic procurement preference policies apply to all 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1303 RS Federal Government procurement and to various 1 Federal-aid infrastructure programs; 2 (11) a robust domestic manufacturing sector is 3 a vital component of the national security of the 4 United States; 5 (12) as more manufacturing operations of the 6 United States have moved offshore, the strength and 7 readiness of the defense industrial base of the 8 United States has been diminished; and 9 (13) domestic procurement preference laws— 10 (A) are fully consistent with the inter- 11 national obligations of the United States; and 12 (B) together with the government procure- 13 ments to which the laws apply, are important 14 levers for ensuring that United States manufac- 15 turers can access the government procurement 16 markets of the trading partners of the United 17 States. 18 SEC. 3. DEFINITIONS. 19 In this Act: 20 (1) DEFICIENT PROGRAM.—The term ‘‘deficient 21 program’’ means a program identified by the head of 22 a Federal agency under section 4(c). 23 (2) DOMESTIC CONTENT PROCUREMENT PREF- 24 ERENCE.—The term ‘‘domestic content procurement 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1303 RS preference’’ means a requirement that no amounts 1 made available through a program for Federal finan- 2 cial assistance may be obligated for a project un- 3 less— 4 (A) all iron and steel used in the project 5 are produced in the United States; or 6 (B) the manufactured products used in the 7 project are produced in the United States. 8 (3) FEDERAL AGENCY.—The term ‘‘Federal 9 agency’’ has the meaning given the term ‘‘agency’’ 10 in section 552(f) of title 5, United States Code. 11 (4) FEDERAL FINANCIAL ASSISTANCE.— 12 (A) IN GENERAL.—The term ‘‘Federal fi- 13 nancial assistance’’ has the meaning given the 14 term in section 200.40 of title 2, Code of Fed- 15 eral Regulations (or successor regulations). 16 (B) INCLUSION.—The term ‘‘Federal fi- 17 nancial assistance’’ includes all expenditures by 18 a Federal agency for an infrastructure project. 19 (5) INFRASTRUCTURE.—The term ‘‘infrastruc- 20 ture’’ includes, at a minimum, the structures, facili- 21 ties, and equipment for, in the United States— 22 (A) roads, highways, and bridges; 23 (B) public transportation; 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1303 RS (C) dams, ports, harbors, and other mari- 1 time facilities; 2 (D) intercity passenger and freight rail- 3 roads; 4 (E) freight and intermodal facilities; 5 (F) airports; 6 (G) water systems, including drinking 7 water and wastewater systems; 8 (H) electrical transmission facilities and 9 systems; 10 (I) utilities; 11 (J) broadband infrastructure; and 12 (K) buildings and real property. 13 (6) PRODUCED IN THE UNITED STATES.—The 14 term ‘‘produced in the United States’’ means, in the 15 case of iron or steel products, that all manufacturing 16 processes, from the initial melting stage through the 17 application of coatings, occurred in the United 18 States. 19 (7) PROJECT.—The term ‘‘project’’ means the 20 construction, alteration, maintenance, or repair of 21 infrastructure in the United States. 22 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1303 RS SEC. 4. IDENTIFICATION OF DEFICIENT PROGRAMS. 1 (a) IN GENERAL.—Not later than 60 days after the 2 date of enactment of this Act, the head of each Federal 3 agency shall— 4 (1) submit to the Office of Management and 5 Budget and to Congress, including a separate notice 6 to each appropriate congressional committee, a re- 7 port that identifies each Federal financial assistance 8 program for infrastructure administered by the Fed- 9 eral agency; and 10 (2) publish in the Federal Register the report 11 under paragraph (1). 12 (b) REQUIREMENTS.—In the report under subsection 13 (a), the head of each Federal agency shall, for each Fed- 14 eral financial assistance program— 15 (1) identify all domestic content procurement 16 preferences applicable to the Federal financial as- 17 sistance; 18 (2) assess the applicability of the domestic con- 19 tent procurement preference requirements, includ- 20 ing— 21 (A) section 313 of title 23, United States 22 Code; 23 (B) section 5323(j) of title 49, United 24 States Code; 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1303 RS (C) section 22905(a) of title 49, United 1 States Code; 2 (D) section 50101 of title 49, United 3 States Code; 4 (E) section 603 of the Federal Water Pol- 5 lution Control Act (33 U.S.C. 1388); 6 (F) section 1452(a)(4) of the Safe Drink- 7 ing Water Act (42 U.S.C. 300j–12(a)(4)); 8 (G) section 5035 of the Water Infrastruc- 9 ture Finance and Innovation Act of 2014 (33 10 U.S.C. 3914); 11 (H) any domestic content procurement 12 preference included in an appropriations Act; 13 and 14 (I) any other domestic content procure- 15 ment preference in Federal law (including regu- 16 lations); 17 (3) provide details on any applicable domestic 18 content procurement preference requirement, includ- 19 ing the purpose, scope, applicability, and any excep- 20 tions and waivers issued under the requirement; and 21 (4) include a description of the type of infra- 22 structure projects that receive funding under the 23 program, including information relating to— 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1303 RS (A) the number of entities that are partici- 1 pating in the program; 2 (B) the amount of Federal funds that are 3 made available for the program for each fiscal 4 year; and 5 (C) any other information the head of the 6 Federal agency determines to be relevant. 7 (c) LIST OF DEFICIENT PROGRAMS.—In the report 8 under subsection (a), the head of each Federal agency 9 shall include a list of Federal financial assistance pro- 10 grams for infrastructure identified under that subsection 11 for which a domestic content procurement preference re- 12 quirement— 13 (1) does not apply; or 14 (2) is subject to a waiver of general applica- 15 bility not limited to the use of specific products for 16 use in a specific project. 17 SEC. 5. APPLICATION OF BUY AMERICA PREFERENCE. 18 (a) IN GENERAL.—Not later than 180 days after the 19 date of enactment of this Act, the head of each Federal 20 agency shall ensure that none of the funds made available 21 for a Federal financial assistance program for infrastruc- 22 ture, including each deficient program, may be used for 23 a project unless all of the iron, steel, and manufactured 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1303 RS products used in the project are produced in the United 1 States. 2 (b) WAIVER.—The head of a Federal agency that ap- 3 plies a domestic content procurement preference under 4 this section may waive the application of that preference 5 in any case in which the head of the Federal agency finds 6 that— 7 (1) applying the domestic content procurement 8 preference would be inconsistent with the public in- 9 terest; 10 (2) types of iron, steel, or manufactured prod- 11 ucts are not produced in the United States in suffi- 12 cient and reasonably available quantities or of a sat- 13 isfactory quality; or 14 (3) the inclusion of iron, steel, or manufactured 15 products produced in the United States will increase 16 the cost of the overall project by more than 25 per- 17 cent. 18 (c) WRITTEN JUSTIFICATION.—Before issuing a 19 waiver under subsection (b), the head of the Federal agen- 20 cy shall— 21 (1) publish in the Federal Register and make 22 publicly available in an easily accessible location on 23 the website of the Federal agency a detailed written 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1303 RS explanation for the proposed determination to issue 1 the waiver; and 2 (2) provide a reasonable period for public com- 3 ment on the proposed waiver. 4 (d) PROHIBITION ON WAIVERS OF GENERAL APPLI- 5 CABILITY.—A waiver issued under subsection (b) shall be 6 limited to the use of specific products for use in a specific 7 project. 8 (e) CONSISTENCY WITH INTERNATIONAL AGREE- 9 MENTS.—This section shall be applied in a manner con- 10 sistent with United States obligations under international 11 agreements. 12 SEC. 6. OMB GUIDANCE. 13 The Director of the Office of Management and Budg- 14 et shall— 15 (1) issue guidance to the head of each Federal 16 agency— 17 (A) to assist in identifying deficient pro- 18 grams under section 4(c); and 19 (B) to assist in applying new domestic con- 20 tent procurement preferences under section 5; 21 and 22 (2) if necessary, amend subtitle A of title 2, 23 Code of Federal Regulations (or successor regula- 24 tions), to ensure that domestic content procurement 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1303 RS preference requirements required by this Act or 1 other Federal law are imposed through the terms 2 and conditions of awards of Federal financial assist- 3 ance. 4 SEC. 7. APPLICATION. 5 (a) IN GENERAL.—This Act shall apply to a Federal 6 financial assistance program for infrastructure only to the 7 extent that a domestic content procurement preference as 8 described in section 5 does not already apply to iron, steel, 9 and manufactured products. 10 (b) SAVINGS PROVISION.—Nothing in this Act affects 11 a domestic content procurement preference for a Federal 12 financial assistance program for infrastructure that is in 13 effect and that meets the requirements of section 5. 14 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 15 (a) SHORT TITLE.—This Act may be cited as the 16 ‘‘Build America, Buy America Act’’. 17 (b) TABLE OF CONTENTS.—The table of contents for 18 this Act is as follows: 19 Sec. 1. Short title; table of contents. TITLE I—BUILD AMERICA, BUY AMERICA Sec. 101. Findings. Sec. 102. Definitions. Sec. 103. Identification of deficient programs. Sec. 104. Application of Buy America preference. Sec. 105. OMB guidance and standards. Sec. 106. Technical assistance partnership and consultation supporting Depart- ment of Transportation Buy America requirements. Sec. 107. Application. VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6213 E:\BILLS\S1303.RS S1303 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1303 RS TITLE II—MAKE IT IN AMERICA Sec. 201. Regu [Text truncated for display. Full text available on Congress.gov.]