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Buy American and Supply Chain Policy Roundup

Buy American and Supply Chain Policy Roundup

Buy American and Supply Chain Policy Roundup

Recent supply-chain vulnerabilities – highlighted by the COVID-19 pandemic, geopolitical competition, cyber-attacks, and global warming – are now causing U.S. policymakers to expand upon their historic efforts.  The Biden Administration and Congress are currently considering policy proposals to address supply-chain vulnerabilities, including legislation that would significantly impact existing Buy America and Buy American-type program requirements.  Below are summaries and links to key congressional legislation and executive branch actions we are actively tracking, including bill text, section-by-section summaries, and accompanying press releases. 

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Congressional Legislation

House Surface Transportation Infrastructure Reauthorization Legislation:  On June 10, the House Transportation and Infrastructure Committee announced its passage of the INVEST in America Act , which includes a number Buy America-focused sections, which are described in the section-by-section summary:

  • Sec. 1112. Buy America [23 USC 313]: Adds “construction materials” to the materials covered by Buy America and requires FHWA to issue a rule implementing this requirement that allows FHWA to increase domestic content over time based on availability. Directs FHWA to carry out research on domestic availability and identify suppliers of Buy America compliant materials to facilitate compliance with these requirements and support domestic jobs.  Ensures a transparent public process before waiving Buy America requirements. Strengthens existing domestic content requirements by requiring the Secretary to reevaluate any standing nationwide waivers every five years, including the manufactured products waiver, to determine whether those waivers remain necessary. This reevaluation must take into consideration the research on domestic availability and supply chains described above. Codifies longstanding congressional reporting requirements.
  • Sec. 2301. Buy America [49 USC 5320]:
    • Recodifies Buy America into section 5320, closes loopholes, removes bureaucratic burdens, clarifies waiver reporting requirements, and provides new incentives to boost domestic job production. Closes loopholes that allow waived components and components exceeding 70 percent domestic content to receive credit for 100 percent domestic content. Incentivizes higher domestic content by including final assembly costs into the domestic content calculation, providing an automatic 2.5 percent increase in domestic content if a zero-emission vehicle uses domestic battery cells, providing a bonus of 10 percent of domestic content for any component that exceeds 70 percent, and providing a bonus of 15 percent of domestic content for any component that exceeds 75 percent.
    • Requires FTA to conduct rolling stock certifications to remove the burden from transit agencies, allows certifications to be used for multiple procurements, sets a standard for recertifications, and provides fair competition by ensuring certifications are consistently applied. The DOT Inspector General will provide annual audits of the program. Creates a refined waiver process for passenger vehicles, allowing automatic waivers for passenger vehicles that are domestically assembled and have a 60 percent domestic content as measured by the American Automobile Labeling Act. Requires domestic components use domestic steel and iron. Prohibits imported components from becoming domestic components. Requires FTA to review its bus and rail component and final assembly regulations to maximize domestic job creation and align with modern manufacturing techniques. Phases in the modifications of Buy America over a five-year timeframe.
  • Sec. 9106. Buy America: Requires DOT to provide notice and opportunity for public comment on requests for waivers from FRA’s Buy America standards at least 30 days before making a finding on such request. Also requires DOT to annually report to Congress on the waivers granted during the preceding fiscal year.

House Stand-alone Legislation: 

Senate Surface Transportation Infrastructure Reauthorization Legislation:  On May 26, the Senate EPW Committee announced its unanimous passage of the Surface Transportation Reauthorization Act.  The legislation includes the following Buy America provision, as described in the Section-by-Section summary:

  • Sec. 1513. Buy America.  Section 1513 requires the Secretary to issue a public notice 15 days in advance of issuing a waiver for the Buy America requirement for Federal-aid projects and to report to Congress annually on all such waivers.

Senate US Innovation and Competition Act (Schumer Substitute Amendment to Endless Frontier Act):  On June 8, the Senate passed the United States Innovation and Competition Act of 2021 (S. 1260), in the form of a Schumer substitute amendment, by a vote of 68 – 32.  Both the Build America, Buy America Act (S. 1303) and the BuyAmerican.gov Act (S. 732) are included in the bill, and a section-by-section summary of the legislation can be found here.

Senate Stand-alone Legislation: