Build America, Buy America Act

II 116TH CONGRESS 1ST SESSION S. 2056 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 JULY 8, 2019 Mr. BROWN (for himself, Mr. PORTMAN, Mr. BRAUN, and Mr. PETERS) intro- duced the following bill; which was read twice and referred to the Com- mittee on Homeland Security and Governmental Affairs 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 SEC. 2. FINDINGS. 6 Congress finds that— 7 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 2 •S 2056 IS (1) the United States must make significant in- 1 vestments to install, upgrade, or replace the public 2 works infrastructure of the United States; 3 (2) with respect to investments in the infra- 4 structure of the United States, taxpayers expect that 5 their public works infrastructure will be produced in 6 the United States by American workers; 7 (3) United States taxpayer dollars invested in 8 public infrastructure should not be used to reward 9 companies that have moved their operations, invest- 10 ment dollars, and jobs to foreign countries or foreign 11 factories, particularly those that do not share or 12 openly flout the commitments of the United States 13 to environmental, worker, and workplace safety pro- 14 tections; 15 (4) in procuring materials for public works 16 projects, entities using taxpayer-financed Federal as- 17 sistance should give a commonsense procurement 18 preference for the materials and products produced 19 by companies and workers in the United States in 20 accordance with the high ideals embodied in the en- 21 vironmental, worker, workplace safety, and other 22 regulatory requirements of the United States; 23 (5) the benefits of domestic content preferences 24 extend beyond economics; 25 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 3 •S 2056 IS (6) by incentivizing domestic manufacturing, 1 domestic content preferences reinvest tax dollars in 2 companies and processes using the highest labor and 3 environmental standards in the world; 4 (7) strong domestic content preference policies 5 act to prevent shifts in production to countries that 6 rely on production practices that are significantly 7 less energy efficient and far more polluting than 8 those in the United States; 9 (8) for over 75 years, Buy America and other 10 domestic preference laws have been part of the 11 United States procurement policy, ensuring that the 12 United States can build and rebuild the infrastruc- 13 ture of the United States with high-quality Amer- 14 ican-made materials; 15 (9) Buy America laws create demand for do- 16 mestically produced goods, helping to sustain and 17 grow domestic manufacturing and the millions of 18 jobs domestic manufacturing supports throughout 19 product supply chains; 20 (10) as of the date of enactment of this Act, 21 domestic procurement preference policies apply to all 22 Federal Government procurement and to various 23 Federal-aid infrastructure programs; 24 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 4 •S 2056 IS (11) a robust domestic manufacturing sector is 1 a vital component of the national security of the 2 United States; 3 (12) as more manufacturing operations of the 4 United States have moved offshore, the strength and 5 readiness of the defense industrial base of the 6 United States has been diminished; and 7 (13) domestic procurement preference laws— 8 (A) are fully consistent with the inter- 9 national obligations of the United States; and 10 (B) together with the government procure- 11 ments to which the laws apply, are important 12 levers for ensuring that United States manufac- 13 turers can access the government procurement 14 markets of the trading partners of the United 15 States. 16 SEC. 3. DEFINITIONS. 17 In this Act: 18 (1) DEFICIENT PROGRAM.—The term ‘‘deficient 19 program’’ means a program identified by the head of 20 a Federal agency under section 4(c). 21 (2) DOMESTIC CONTENT PROCUREMENT PREF- 22 ERENCE.—The term ‘‘domestic content procurement 23 preference’’ means a requirement that no amounts 24 made available through a program for Federal finan- 25 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 5 •S 2056 IS cial assistance may be obligated for a project un- 1 less— 2 (A) all iron and steel used in the project 3 are produced in the United States; or 4 (B) the manufactured products used in the 5 project are produced in the United States. 6 (3) FEDERAL AGENCY.—The term ‘‘Federal 7 agency’’ has the meaning given the term ‘‘agency’’ 8 in section 552(f) of title 5, United States Code. 9 (4) FEDERAL FINANCIAL ASSISTANCE.— 10 (A) IN GENERAL.—The term ‘‘Federal fi- 11 nancial assistance’’ has the meaning given the 12 term in section 200.40 of title 2, Code of Fed- 13 eral Regulations (or successor regulations). 14 (B) INCLUSION.—The term ‘‘Federal fi- 15 nancial assistance’’ includes all expenditures by 16 a Federal agency for an infrastructure project. 17 (5) INFRASTRUCTURE.—The term ‘‘infrastruc- 18 ture’’ includes, at a minimum, the structures, facili- 19 ties, and equipment for, in the United States— 20 (A) roads, highways, and bridges; 21 (B) public transportation; 22 (C) dams, ports, harbors, and other mari- 23 time facilities; 24 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 6 •S 2056 IS (D) intercity passenger and freight rail- 1 roads; 2 (E) freight and intermodal facilities; 3 (F) airports; 4 (G) water systems, including drinking 5 water and wastewater systems; 6 (H) electrical transmission facilities and 7 systems; 8 (I) utilities; 9 (J) broadband infrastructure; and 10 (K) buildings and real property. 11 (6) PRODUCED IN THE UNITED STATES.—The 12 term ‘‘produced in the United States’’ means, in the 13 case of iron or steel products, that all manufacturing 14 processes, from the initial melting stage through the 15 application of coatings, occurred in the United 16 States. 17 (7) PROJECT.—The term ‘‘project’’ means the 18 construction, alteration, maintenance, or repair of 19 infrastructure in the United States. 20 SEC. 4. IDENTIFICATION OF DEFICIENT PROGRAMS. 21 (a) IN GENERAL.—Not later than 60 days after the 22 date of enactment of this Act, the head of each Federal 23 agency shall— 24 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 7 •S 2056 IS (1) submit to the Office of Management and 1 Budget and to Congress, including a separate notice 2 to each appropriate congressional committee, a re- 3 port that identifies each Federal financial assistance 4 program for infrastructure administered by the Fed- 5 eral agency; and 6 (2) publish in the Federal Register the report 7 under paragraph (1). 8 (b) REQUIREMENTS.—In the report under subsection 9 (a), the head of each Federal agency shall, for each Fed- 10 eral financial assistance program— 11 (1) identify all domestic content procurement 12 preferences applicable to the Federal financial as- 13 sistance; 14 (2) assess the applicability of the domestic con- 15 tent procurement preference requirements, includ- 16 ing— 17 (A) section 313 of title 23, United States 18 Code; 19 (B) section 5323(j) of title 49, United 20 States Code; 21 (C) section 22905(a) of title 49, United 22 States Code; 23 (D) section 50101 of title 49, United 24 States Code; 25 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 8 •S 2056 IS (E) section 603 of the Federal Water Pol- 1 lution Control Act (33 U.S.C. 1388); 2 (F) section 1452(a)(4) of the Safe Drink- 3 ing Water Act (42 U.S.C. 300j–12(a)(4)); 4 (G) section 5035 of the Water Infrastruc- 5 ture Finance and Innovation Act of 2014 (33 6 U.S.C. 3914); 7 (H) any domestic content procurement 8 preference included in an appropriations Act; 9 and 10 (I) any other domestic content procure- 11 ment preference in Federal law (including regu- 12 lations); 13 (3) provide details on any applicable domestic 14 content procurement preference requirement, includ- 15 ing the purpose, scope, applicability, and any excep- 16 tions and waivers issued under the requirement; and 17 (4) include a description of the type of infra- 18 structure projects that receive funding under the 19 program, including information relating to— 20 (A) the number of entities that are partici- 21 pating in the program; 22 (B) the amount of Federal funds that are 23 made available for the program for each fiscal 24 year; and 25 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 9 •S 2056 IS (C) any other information the head of the 1 Federal agency determines to be relevant. 2 (c) LIST OF DEFICIENT PROGRAMS.—In the report 3 under subsection (a), the head of each Federal agency 4 shall include a list of Federal financial assistance pro- 5 grams for infrastructure identified under that subsection 6 for which a domestic content procurement preference re- 7 quirement— 8 (1) does not apply; or 9 (2) is subject to a waiver of general applica- 10 bility not limited to the use of specific products for 11 use in a specific project. 12 SEC. 5. APPLICATION OF BUY AMERICA PREFERENCE. 13 (a) IN GENERAL.—Not later than 180 days after the 14 date of enactment of this Act, the head of each Federal 15 agency shall ensure that none of the funds made available 16 for a Federal financial assistance program for infrastruc- 17 ture, including each deficient program, may be used for 18 a project unless all of the iron, steel, and manufactured 19 products used in the project are produced in the United 20 States. 21 (b) WAIVER.—The head of a Federal agency that ap- 22 plies a domestic content procurement preference under 23 this section may waive the application of that preference 24 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 10 •S 2056 IS in any case in which the head of the Federal agency finds 1 that— 2 (1) applying the domestic content procurement 3 preference would be inconsistent with the public in- 4 terest; 5 (2) types of iron, steel, or manufactured prod- 6 ucts are not produced in the United States in suffi- 7 cient and reasonably available quantities or of a sat- 8 isfactory quality; or 9 (3) the inclusion of iron, steel, or manufactured 10 products produced in the United States will increase 11 the cost of the overall project by more than 25 per- 12 cent. 13 (c) WRITTEN JUSTIFICATION.—Before issuing a 14 waiver under subsection (b), the head of the Federal agen- 15 cy shall— 16 (1) publish in the Federal Register and make 17 publicly available in an easily accessible location on 18 the website of the Federal agency a detailed written 19 explanation for the proposed determination to issue 20 the waiver; and 21 (2) provide a reasonable period for public com- 22 ment on the proposed waiver. 23 (d) PROHIBITION ON WAIVERS OF GENERAL APPLI- 24 CABILITY.—A waiver issued under subsection (b) shall be 25 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 11 •S 2056 IS limited to the use of specific products for use in a specific 1 project. 2 (e) CONSISTENCY WITH INTERNATIONAL AGREE- 3 MENTS.—This section shall be applied in a manner con- 4 sistent with United States obligations under international 5 agreements. 6 SEC. 6. OMB GUIDANCE. 7 The Director of the Office of Management and Budg- 8 et shall— 9 (1) issue guidance to the head of each Federal 10 agency— 11 (A) to assist in identifying deficient pro- 12 grams under section 4(c); and 13 (B) to assist in applying new domestic con- 14 tent procurement preferences under section 5; 15 and 16 (2) if necessary, amend subtitle A of title 2, 17 Code of Federal Regulations (or successor regula- 18 tions), to ensure that domestic content procurement 19 preference requirements required by this Act or 20 other Federal law are imposed through the terms 21 and conditions of awards of Federal financial assist- 22 ance. 23 VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS 12 •S 2056 IS SEC. 7. APPLICATION. 1 (a) IN GENERAL.—This Act shall apply to a Federal 2 financial assistance program for infrastructure only to the 3 extent that a domestic content procurement preference as 4 described in section 5 does not already apply to iron, steel, 5 and manufactured products. 6 (b) SAVINGS PROVISION.—Nothing in this Act affects 7 a domestic content procurement preference for a Federal 8 financial assistance program for infrastructure that is in 9 effect and that meets the requirements of section 5. 10 Æ VerDate Sep 11 2014 22:08 Jul 10, 2019 Jkt 034408 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S2056.IS S2056 pbinns on DSK79D2C42PROD with BILLS