Appendix E_Buy America. PLAW-117publ58_IIJA BIL_BABA

PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 429

Public Law 117–58
117th Congress
An Act
To authorize funds for Federal-aid highways, highway safety programs, and transit
programs, and for other purposes.

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Infrastructure
Investment and Jobs Act’’.
(b) TABLE OF CONTENTS.—The table of contents for this Act
is as follows:

Nov. 15, 2021
[H.R. 3684]
Infrastructure
Investment and
Jobs Act.
23 USC 101 note.

Sec. 1. Short title; table of contents.
Sec. 2. References.
DIVISION A—SURFACE TRANSPORTATION
Sec. 10001. Short title.
Sec. 10002. Definitions.
Sec. 10003. Effective date.
TITLE I—FEDERAL-AID HIGHWAYS

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Subtitle A—Authorizations and Programs
Sec.
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11101.
11102.
11103.
11104.
11105.
11106.
11107.
11108.
11109.
11110.
11111.
11112.
11113.
11114.
11115.
11116.
11117.
11118.
11119.
11120.
11121.
11122.
11123.
11124.
11125.
11126.
11127.
11128.
11129.
11130.

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Authorization of appropriations.
Obligation ceiling.
Definitions.
Apportionment.
National highway performance program.
Emergency relief.
Federal share payable.
Railway-highway grade crossings.
Surface transportation block grant program.
Nationally significant freight and highway projects.
Highway safety improvement program.
Federal lands transportation program.
Federal lands access program.
National highway freight program.
Congestion mitigation and air quality improvement program.
Alaska Highway.
Toll roads, bridges, tunnels, and ferries.
Bridge investment program.
Safe routes to school.
Highway use tax evasion projects.
Construction of ferry boats and ferry terminal facilities.
Vulnerable road user research.
Wildlife crossing safety.
Consolidation of programs.
GAO report.
Territorial and Puerto Rico highway program.
Nationally significant Federal lands and Tribal projects program.
Tribal high priority projects program.
Standards.
Public transportation.

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135 STAT. 1294

PUBLIC LAW 117–58—NOV. 15, 2021

Director of the Office of Management and Budget, may, after public
notice and opportunity for comment, issue regulations establishing
a fee structure for sponsors of covered projects to reimburse the
United States for reasonable costs incurred in conducting environmental reviews and authorizations for covered projects.’’;
(2) in subsection (b), by striking ‘‘and 41003’’ and inserting
‘‘through 41008’’; and
(3) in subsection (d)—
(A) in the subsection heading, by striking ‘‘AND PERMITTING’’; and
(B) by striking paragraphs (2) and (3) and inserting
the following:
‘‘(2) AVAILABILITY.—Amounts in the Fund shall be available
to the Executive Director, without fiscal year limitation, solely
for the purposes of administering, implementing, and enforcing
this title, including the expenses of the Council, staffing of
the Office of the Executive Director, and support of the role
of the Council as a Federal center for permitting excellence,
which may include supporting interagency detailee and rotation
opportunities, advanced training, enhanced support for agency
project managers, and fora for sharing information and lessons
learned.
‘‘(3) TRANSFER.—For the purpose of carrying out this title,
the Executive Director, with the approval of the Director of
the Office of Management and Budget, may transfer amounts
in the Fund to other Federal agencies and State, Tribal, and
local governments to facilitate timely and efficient environmental reviews and authorizations for covered projects and
other projects under this title, including direct reimbursement
agreements with agency CERPOs, reimbursable agreements,
and approval and consultation processes and staff for covered
projects.’’.
(h) SUNSET.—Section 41013 of the FAST Act (42 U.S.C. 4370m–
12) is repealed.
(i) TECHNICAL CORRECTION.—Section 41002(b)(2)(A)(ii) of the
FAST Act (42 U.S.C. 4370m–1(b)(2)(A)(ii)) is amended by striking
‘‘councilmem-ber’’ and inserting ‘‘councilmember’’.
(j) CLERICAL AMENDMENT.—The table of contents in section
1(b) of the FAST Act (Public Law 114–94; 129 Stat. 1319) is
amended by striking the item relating to section 41002 and inserting
the following:

Repeal.

‘‘Sec. 41002. Federal Permitting Improvement Steering Council.’’.

TITLE IX—BUILD AMERICA, BUY
AMERICA
Subtitle A—Build America, Buy America

Build America,
Buy America Act.

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41 USC 8301
note.

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SEC. 70901. SHORT TITLE.

This subtitle may be cited as the ‘‘Build America, Buy America
Act’’.

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PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 1295

PART I—BUY AMERICA SOURCING
REQUIREMENTS

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SEC. 70911. FINDINGS.

Congress finds that—
(1) the United States must make significant investments
to install, upgrade, or replace the public works infrastructure
of the United States;
(2) with respect to investments in the infrastructure of
the United States, taxpayers expect that their public works
infrastructure will be produced in the United States by American workers;
(3) United States taxpayer dollars invested in public infrastructure should not be used to reward companies that have
moved their operations, investment dollars, and jobs to foreign
countries or foreign factories, particularly those that do not
share or openly flout the commitments of the United States
to environmental, worker, and workplace safety protections;
(4) in procuring materials for public works projects, entities
using taxpayer-financed Federal assistance should give a
commonsense procurement preference for the materials and
products produced by companies and workers in the United
States in accordance with the high ideals embodied in the
environmental, worker, workplace safety, and other regulatory
requirements of the United States;
(5) common construction materials used in public works
infrastructure projects, including steel, iron, manufactured
products, non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials,
and polymers used in fiber optic cables), glass (including optic
glass), lumber, and drywall are not adequately covered by a
domestic content procurement preference, thus limiting the
impact of taxpayer purchases to enhance supply chains in the
United States;
(6) the benefits of domestic content procurement preferences extend beyond economics;
(7) by incentivizing domestic manufacturing, domestic content procurement preferences reinvest tax dollars in companies
and processes using the highest labor and environmental standards in the world;
(8) strong domestic content procurement preference policies
act to prevent shifts in production to countries that rely on
production practices that are significantly less energy efficient
and far more polluting than those in the United States;
(9) for over 75 years, Buy America and other domestic
content procurement preference laws have been part of the
United States procurement policy, ensuring that the United
States can build and rebuild the infrastructure of the United
States with high-quality American-made materials;
(10) before the date of enactment of this Act, a domestic
content procurement preference requirement may not apply,
may apply only to a narrow scope of products and materials,
or may be limited by waiver with respect to many infrastructure
programs, which necessitates a review of such programs,
including programs for roads, highways, and bridges, public

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135 STAT. 1296

PUBLIC LAW 117–58—NOV. 15, 2021
transportation, dams, ports, harbors, and other maritime facilities, intercity passenger and freight railroads, freight and intermodal facilities, airports, water systems, including drinking
water and wastewater systems, electrical transmission facilities
and systems, utilities, broadband infrastructure, and buildings
and real property;
(11) Buy America laws create demand for domestically
produced goods, helping to sustain and grow domestic manufacturing and the millions of jobs domestic manufacturing supports
throughout product supply chains;
(12) as of the date of enactment of this Act, domestic
content procurement preference policies apply to all Federal
Government procurement and to various Federal-aid infrastructure programs;
(13) a robust domestic manufacturing sector is a vital
component of the national security of the United States;
(14) as more manufacturing operations of the United States
have moved offshore, the strength and readiness of the defense
industrial base of the United States has been diminished; and
(15) domestic content procurement preference laws—
(A) are fully consistent with the international obligations of the United States; and
(B) together with the government procurements to
which the laws apply, are important levers for ensuring
that United States manufacturers can access the government procurement markets of the trading partners of the
United States.

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SEC. 70912. DEFINITIONS.

In this part:
(1) DEFICIENT PROGRAM.—The term ‘‘deficient program’’
means a program identified by the head of a Federal agency
under section 70913(c).
(2) DOMESTIC CONTENT PROCUREMENT PREFERENCE.—The
term ‘‘domestic content procurement preference’’ means a
requirement that no amounts made available through a program for Federal financial assistance may be obligated for
a project unless—
(A) all iron and steel used in the project are produced
in the United States;
(B) the manufactured products used in the project are
produced in the United States; or
(C) the construction materials used in the project are
produced in the United States.
(3) FEDERAL AGENCY.—The term ‘‘Federal agency’’ means
any authority of the United States that is an ‘‘agency’’ (as
defined in section 3502 of title 44, United States Code), other
than an independent regulatory agency (as defined in that
section).
(4) FEDERAL FINANCIAL ASSISTANCE.—
(A) IN GENERAL.—The term ‘‘Federal financial assistance’’ has the meaning given the term in section 200.1
of title 2, Code of Federal Regulations (or successor regulations).
(B) INCLUSION.—The term ‘‘Federal financial assistance’’ includes all expenditures by a Federal agency to
a non-Federal entity for an infrastructure project, except

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PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 1297

that it does not include expenditures for assistance authorized under section 402, 403, 404, 406, 408, or 502 of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170a, 5170b, 5170c, 5172, 5174, or
5192) relating to a major disaster or emergency declared
by the President under section 401 or 501, respectively,
of such Act (42 U.S.C. 5170, 5191) or pre and post disaster
or emergency response expenditures.
(5) INFRASTRUCTURE.—The term ‘‘infrastructure’’ includes,
at a minimum, the structures, facilities, and equipment for,
in the United States—
(A) roads, highways, and bridges;
(B) public transportation;
(C) dams, ports, harbors, and other maritime facilities;
(D) intercity passenger and freight railroads;
(E) freight and intermodal facilities;
(F) airports;
(G) water systems, including drinking water and wastewater systems;
(H) electrical transmission facilities and systems;
(I) utilities;
(J) broadband infrastructure; and
(K) buildings and real property.
(6) PRODUCED IN THE UNITED STATES.—The term ‘‘produced
in the United States’’ means—
(A) in the case of iron or steel products, that all manufacturing processes, from the initial melting stage through
the application of coatings, occurred in the United States;
(B) in the case of manufactured products, that—
(i) the manufactured product was manufactured
in the United States; and
(ii) the cost of the components of the manufactured
product that are mined, produced, or manufactured
in the United States is greater than 55 percent of
the total cost of all components of the manufactured
product, unless another standard for determining the
minimum amount of domestic content of the manufactured product has been established under applicable
law or regulation; and
(C) in the case of construction materials, that all manufacturing processes for the construction material occurred
in the United States.
(7) PROJECT.—The term ‘‘project’’ means the construction,
alteration, maintenance, or repair of infrastructure in the
United States.

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SEC. 70913. IDENTIFICATION OF DEFICIENT PROGRAMS.

(a) IN GENERAL.—Not later than 60 days after the date of
enactment of this Act, the head of each Federal agency shall—
(1) submit to the Office of Management and Budget and
to Congress, including a separate notice to each appropriate
congressional committee, a report that identifies each Federal
financial assistance program for infrastructure administered
by the Federal agency; and
(2) publish in the Federal Register the report under paragraph (1).

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Notice.
Reports.

Federal Register,
publication.

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135 STAT. 1298

Assessment.

Determination.

PUBLIC LAW 117–58—NOV. 15, 2021

(b) REQUIREMENTS.—In the report under subsection (a), the
head of each Federal agency shall, for each Federal financial assistance program—
(1) identify all domestic content procurement preferences
applicable to the Federal financial assistance;
(2) assess the applicability of the domestic content procurement preference requirements, including—
(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;
(E) section 603 of the Federal Water Pollution Control
Act (33 U.S.C. 1388);
(F) section 1452(a)(4) of the Safe Drinking Water Act
(42 U.S.C. 300j–12(a)(4));
(G) section 5035 of the Water Infrastructure Finance
and Innovation Act of 2014 (33 U.S.C. 3914);
(H) any domestic content procurement preference
included in an appropriations Act; and
(I) any other domestic content procurement preference
in Federal law (including regulations);
(3) provide details on any applicable domestic content
procurement preference requirement, including the purpose,
scope, applicability, and any exceptions and waivers issued
under the requirement; and
(4) include a description of the type of infrastructure
projects that receive funding under the program, including
information relating to—
(A) the number of entities that are participating in
the program;
(B) the amount of Federal funds that are made available for the program for each fiscal year; and
(C) any other information the head of the Federal
agency determines to be relevant.
(c) LIST OF DEFICIENT PROGRAMS.—In the report under subsection (a), the head of each Federal agency shall include a list
of Federal financial assistance programs for infrastructure identified
under that subsection for which a domestic content procurement
preference requirement—
(1) does not apply in a manner consistent with section
70914; or
(2) is subject to a waiver of general applicability not limited
to the use of specific products for use in a specific project.
SEC. 70914. APPLICATION OF BUY AMERICA PREFERENCE.

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Deadline.

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(a) IN GENERAL.—Not later than 180 days after the date of
enactment of this Act, the head of each Federal agency shall ensure
that none of the funds made available for a Federal financial
assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel,
manufactured products, and construction materials used in the
project are produced in the United States.
(b) WAIVER.—The head of a Federal agency that applies a
domestic content procurement preference under this section may
waive the application of that preference in any case in which
the head of the Federal agency finds that—

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PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 1299

(1) applying the domestic content procurement preference
would be inconsistent with the public interest;
(2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory
quality; or
(3) the inclusion of iron, steel, manufactured products, or
construction materials produced in the United States will
increase the cost of the overall project by more than 25 percent.
(c) WRITTEN JUSTIFICATION.—Before issuing a waiver under
subsection (b), the head of the Federal agency shall—
(1) make publicly available in an easily accessible location
on a website designated by the Office of Management and
Budget and on the website of the Federal agency a detailed
written explanation for the proposed determination to issue
the waiver; and
(2) provide a period of not less than 15 days for public
comment on the proposed waiver.
(d) REVIEW OF WAIVERS OF GENERAL APPLICABILITY.—
(1) IN GENERAL.—An existing general applicability waiver
or a general applicability waiver issued under subsection (b)
shall be reviewed every 5 years after the date on which the
waiver is issued.
(2) REVIEW.—In conducting a review of a general applicability waiver, the head of a Federal agency shall—
(A) publish in the Federal Register a notice that—
(i) describes the justification for a general applicability waiver; and
(ii) requests public comments for a period of not
less than 30 days on the continued need for a general
applicability waiver; and
(B) publish in the Federal Register a determination
on whether to continue or discontinue the general applicability waiver, taking into account the comments received
in response to the notice published under subparagraph
(A).
(3) LIMITATION ON THE REVIEW OF EXISTING WAIVERS OF
GENERAL APPLICABILITY.—For a period of 5 years beginning
on the date of enactment of this Act, paragraphs (1) and (2)
shall not apply to any product-specific general applicability
waiver that was issued more than 180 days before the date
of enactment of this Act.
(e) CONSISTENCY WITH INTERNATIONAL AGREEMENTS.—This section shall be applied in a manner consistent with United States
obligations under international agreements.

Public
information.
Web postings.
Determination.
Time period.
Public comment.
Time period.

Federal Register,
publication.
Notice.

Public comments.
Time period.
Determination.

Time period.
Effective date.

Applicability.

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SEC. 70915. OMB GUIDANCE AND STANDARDS.

(a) GUIDANCE.—The Director of the Office of Management and
Budget shall—
(1) issue guidance to the head of each Federal agency—
(A) to assist in identifying deficient programs under
section 70913(c); and
(B) to assist in applying new domestic content procurement preferences under section 70914; and
(2) if necessary, amend subtitle A of title 2, Code of Federal
Regulations (or successor regulations), to ensure that domestic
content procurement preference requirements required by this

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135 STAT. 1300

PUBLIC LAW 117–58—NOV. 15, 2021
part or other Federal law are imposed through the terms and
conditions of awards of Federal financial assistance.
(b) STANDARDS FOR CONSTRUCTION MATERIALS.—
(1) IN GENERAL.—Not later than 180 days after the date
of enactment of this Act, the Director of the Office of Management and Budget shall issue standards that define the term
‘‘all manufacturing processes’’ in the case of construction materials.
(2) CONSIDERATIONS.—In issuing standards under paragraph (1), the Director shall—
(A) ensure that the standards require that each manufacturing process required for the manufacture of the
construction material and the inputs of the construction
material occurs in the United States; and
(B) take into consideration and seek to maximize the
direct and indirect jobs benefited or created in the production of the construction material.

Standards.

SEC. 70916. TECHNICAL ASSISTANCE PARTNERSHIP AND CONSULTATION SUPPORTING DEPARTMENT OF TRANSPORTATION
BUY AMERICA REQUIREMENTS.

Deadline.

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Procedures.
Consultation.

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(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

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PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 1301

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
and the Committee on Oversight and Reform 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.

Update.
Recommendations.

SEC. 70917. APPLICATION.

(a) IN GENERAL.—This part shall apply to a Federal financial
assistance program for infrastructure only to the extent that a
domestic content procurement preference as described in section
70914 does not already apply to iron, steel, manufactured products,
and construction materials.
(b) SAVINGS PROVISION.—Nothing in this part affects a domestic
content procurement preference for a Federal financial assistance
program for infrastructure that is in effect and that meets the
requirements of section 70914.
(c) LIMITATION WITH RESPECT TO AGGREGATES.—In this part—
(1) the term ‘‘construction materials’’ shall not include
cement and cementitious materials, aggregates such as stone,
sand, or gravel, or aggregate binding agents or additives; and
(2) the standards developed under section 70915(b)(1) shall
not include cement and cementitious materials, aggregates such
as stone, sand, or gravel, or aggregate binding agents or additives as inputs of the construction material.

Definition.

PART II—MAKE IT IN AMERICA

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SEC. 70921. 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 (‘‘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,

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Deadline.
Consultation.

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135 STAT. 1302

Determination.

Determination.

Procedures.
Public
information.
Web posting.
Time periods.
Waiver.

Consultation.

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Contracts.

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PUBLIC LAW 117–58—NOV. 15, 2021

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 section 8302(a)(1) 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
70923(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—
(i) result in a decrease in employment in the
United States, including employment among entities
that manufacture the articles, materials, or supplies;
or
(ii) result in awarding a contract that would
decrease domestic employment.
(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.

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135 STAT. 1303

(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.

Deadline.

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SEC. 70922. 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

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Applicability.

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Time period.
Consultation.

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(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 Build America, Buy 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 the
Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Oversight and Reform
of the House of Representatives 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 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

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135 STAT. 1305

(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
(2) 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 ACQUISITIONRELATED DOLLAR THRESHOLDS.—Subparagraph (A) of section
1908(b)(2) of title 41, United States Code, is amended by striking
‘‘chapter 67’’ and inserting ‘‘chapters 67 and 83’’.

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SEC. 70923. 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.

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Time period.

Summary.

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List.
Waivers.

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(2) Develop and implement procedures to review waiver
requests or inapplicability requests related to domestic preference statutes.
(3) Prepare the reports required under subsections (c) and
(e).
(4) 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.
(5) Conduct the review of reciprocal defense agreements
required under subsection (d).
(6) 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.
(7) Support executive branch efforts to develop and sustain
a domestic supply base to meet Federal procurement requirements.
(c) 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

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PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 1307

(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.
(d) 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,
and the Secretary of State.
(e) 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.
(f) 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
70916(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 2533b 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’’; and
(7) any other law, regulation, rule, or executive order
relating to Federal financial assistance awards or Federal

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Contracts.
Reports.
Deadline.
Determination.

Assessment.

Summary.

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135 STAT. 1308

PUBLIC LAW 117–58—NOV. 15, 2021
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
material, and manufactured goods offered in the United States.

SEC. 70924. HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP
ACTIVITIES.

(a) USE OF HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP
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!.

TO

SEC. 70925. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL
AGREEMENTS.

Applicability.

This part, and the amendments made by this part, shall be
applied in a manner consistent with United States obligations under
international agreements.
SEC. 70926. DEFINITIONS.

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Determinations.

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In this part:
(1) BERRY AMENDMENT.—The term ‘‘Berry Amendment’’
means section 2533a 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) 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.

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PUBLIC LAW 117–58—NOV. 15, 2021

135 STAT. 1309

(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.
SEC. 70927. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.

(a) SPECIALTY METALS CLAUSE REFERENCE.—Section 70923(f)(5)
is amended by striking ‘‘section 2533b’’ and inserting ‘‘section 4863’’.
(b) BERRY AMENDMENT REFERENCE.—Section 70926(1) is
amended by striking ‘‘section 2533a’’ and inserting ‘‘section 4862’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall take effect on January 1, 2022.

Subtitle B—BuyAmerican.gov

BuyAmerican.gov
Act of 2021.

SEC. 70931. SHORT TITLE.

This subtitle may be cited as the ‘‘BuyAmerican.gov Act of
2021’’.
SEC. 70932. DEFINITIONS.

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In this subtitle:
(1) BUY AMERICAN LAW.—The term ‘‘Buy American law’’
means any law, regulation, Executive order, or rule relating
to Federal contracts, grants, or financial assistance that
requires or provides a preference for the purchase or use of
goods, products, or materials mined, produced, or manufactured
in the United States, including—
(A) chapter 83 of title 41, United States Code (commonly referred to as the ‘‘Buy American Act’’);
(B) section 5323(j) of title 49, United States Code;
(C) section 313 of title 23, United States Code;
(D) section 50101 of title 49, United States Code;
(E) section 24405 of title 49, United States Code;
(F) section 608 of the Federal Water Pollution Control
Act (33 U.S.C. 1388);
(G) section 1452(a)(4) of the Safe Drinking Water Act
(42 U.S.C. 300j–12(a)(4));
(H) section 5035 of the Water Resources Reform and
Development Act of 2014 (33 U.S.C. 3914);
(I) section 2533a of title 10, United States Code (commonly referred to as the ‘‘Berry Amendment’’); and
(J) section 2533b of title 10, United States Code.
(2) EXECUTIVE AGENCY.—The term ‘‘executive agency’’ has
the meaning given the term ‘‘agency’’ in paragraph (1) of section
3502 of title 44, United States Code, except that it does not
include an independent regulatory agency, as that term is
defined in paragraph (5) of such section.
(3) BUY AMERICAN WAIVER.—The term ‘‘Buy American
waiver’’ refers to an exception to or waiver of any Buy American
law, or the terms and conditions used by an agency in granting
an exception to or waiver from Buy American laws.
SEC. 70933. SENSE OF CONGRESS ON BUYING AMERICAN.

It is the sense of Congress that—

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135 STAT. 1310

PUBLIC LAW 117–58—NOV. 15, 2021
(1) every executive agency should maximize, through terms
and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials
produced in the United States and contracts for outsourced
government service contracts to be performed by United States
nationals;
(2) every executive agency should scrupulously monitor,
enforce, and comply with Buy American laws, to the extent
they apply, and minimize the use of waivers; and
(3) every executive agency should use available data to
routinely audit its compliance with Buy American laws.

SEC. 70934. ASSESSMENT OF IMPACT OF FREE TRADE AGREEMENTS.

Public
information.

Not later than 150 days after the date of the enactment of
this Act, the Secretary of Commerce, the United States Trade
Representative, and the Director of the Office of Management and
Budget shall assess the impacts in a publicly available report of
all United States free trade agreements, the World Trade Organization Agreement on Government Procurement, and Federal permitting processes on the operation of Buy American laws, including
their impacts on the implementation of domestic procurement preferences.
SEC. 70935. JUDICIOUS USE OF WAIVERS.

(a) IN GENERAL.—To the extent permitted by law, a Buy American waiver that is determined by an agency head or other relevant
official to be in the public interest shall be construed to ensure
the maximum utilization of goods, products, and materials produced
in the United States.
(b) PUBLIC INTEREST WAIVER DETERMINATIONS.—To the extent
permitted by law, determination of public interest waivers shall
be made by the head of the agency with the authority over the
Federal financial assistance award or Federal procurement under
consideration.
SEC. 70936. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.
Deadline.

Determination.
Data.
Public
information.

(a) IN GENERAL.—Not later than one year after the date of
the enactment of this Act, the Administrator of General Services
shall establish an Internet website with the address
BuyAmerican.gov that will be publicly available and free to access.
The website shall include information on all waivers of and exceptions to Buy American laws since the date of the enactment of
this Act that have been requested, are under consideration, or
have been granted by executive agencies and be designed to enable
manufacturers and other interested parties to easily identify
waivers. The website shall also include the results of routine audits
to determine data errors and Buy American law violations after
the award of a contract. The website shall provide publicly available
contact information for the relevant contracting agencies.
(b) UTILIZATION OF EXISTING WEBSITE.—The requirements of
subsection (a) may be met by utilizing an existing website, provided
that the address of that website is BuyAmerican.gov.

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SEC. 70937. WAIVER TRANSPARENCY AND STREAMLINING FOR CONTRACTS.
Consultation.

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(a) COLLECTION OF INFORMATION.—The Administrator of General Services, in consultation with the heads of relevant agencies,
shall develop a mechanism to collect information on requests to

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135 STAT. 1311

invoke a Buy American waiver for a Federal contract, utilizing
existing reporting requirements whenever possible, for purposes
of providing early notice of possible waivers via the website established under section 70936.
(b) WAIVER TRANSPARENCY AND STREAMLINING.—
(1) REQUIREMENT.—Prior to granting a request to waive
a Buy American law, the head of an executive agency shall
submit a request to invoke a Buy American waiver to the
Administrator of General Services, and the Administrator of
General Services shall make the request available on or through
the public website established under section 70936 for public
comment for not less than 15 days.
(2) EXCEPTION.—The requirement under paragraph (1) does
not apply to a request for a Buy American waiver to satisfy
an urgent contracting need in an unforeseen and exigent circumstance.
(c) INFORMATION AVAILABLE TO THE EXECUTIVE AGENCY CONCERNING THE REQUEST.—
(1) REQUIREMENT.—No Buy American waiver for purposes
of awarding a contract may be granted if, in contravention
of subsection (b)—
(A) information about the waiver was not made available on the website under section 70936; or
(B) no opportunity for public comment concerning the
request was granted.
(2) SCOPE.—Information made available to the public concerning the request included on the website described in section
70936 shall properly and adequately document and justify the
statutory basis cited for the requested waiver. Such information
shall include—
(A) a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States;
(B) for requests citing unreasonable cost as the statutory basis of the waiver, a comparison of the cost of the
domestic product to the cost of the foreign product or a
comparison of the overall cost of the project with domestic
products to the overall cost of the project with foreignorigin products or services, pursuant to the requirements
of the applicable Buy American law, except that publicly
available cost comparison data may be provided in lieu
of proprietary pricing information;
(C) for requests citing the public interest as the statutory basis for the waiver, a detailed written statement,
which shall include all appropriate factors, such as potential obligations under international agreements, justifying
why the requested waiver is in the public interest; and
(D) a certification that the procurement official or
assistance recipient made a good faith effort to solicit bids
for domestic products supported by terms included in
requests for proposals, contracts, and nonproprietary
communications with the prime contractor.
(d) NONAVAILABILITY WAIVERS.—
(1) IN GENERAL.—Except as provided under paragraph (2),
for a request citing nonavailability as the statutory basis for
a Buy American waiver, an executive agency shall provide
an explanation of the procurement official’s efforts to procure

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Public comment.
Time period.

Certification.

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135 STAT. 1312

a product from a domestic source and the reasons why a
domestic product was not available from a domestic source.
Those
explanations
shall
be
made
available
on
BuyAmerican.gov prior to the issuance of the waiver, and the
agency shall consider public comments regarding the availability of the product before making a final determination.
(2) EXCEPTION.—An explanation under paragraph (1) is
not required for a product the nonavailability of which is established by law or regulation.

Public comments.
Determination.

Recommendations.

PUBLIC LAW 117–58—NOV. 15, 2021

SEC. 70938. COMPTROLLER GENERAL REPORT.

Not later than two years after the date of the enactment
of this Act, the Comptroller General of the United States shall
submit to Congress a report describing the implementation of this
subtitle, including recommendations for any legislation to improve
the collection and reporting of information regarding waivers of
and exceptions to Buy American laws.
SEC. 70939. RULES OF CONSTRUCTION.

(a) DISCLOSURE REQUIREMENTS.—Nothing in this subtitle shall
be construed as preempting, superseding, or otherwise affecting
the application of any disclosure requirement or requirements otherwise provided by law or regulation.
(b) ESTABLISHMENT OF SUCCESSOR INFORMATION SYSTEMS.—
Nothing in this subtitle shall be construed as preventing or otherwise limiting the ability of the Administrator of General Services
to move the data required to be included on the website established
under subsection (a) to a successor information system. Any such
information system shall include a reference to BuyAmerican.gov.
Applicability.

SEC. 70940. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.

This subtitle shall be applied in a manner consistent with
United States obligations under international agreements.
SEC. 70941. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.

(a) IN GENERAL.—Section 70932(1) is amended—
(1) in subparagraph (I), by striking ‘‘section 2533a’’ and
inserting ‘‘section 4862’’; and
(2) in subparagraph (J), by striking ‘‘section 2533b’’ and
inserting ‘‘section 4863’’.
(b) EFFECTIVE DATE.—The amendments made by subsection
(a) shall take effect on January 1, 2022.

Subtitle C—Make PPE in America

Make PPE in
America Act.

SEC. 70951. SHORT TITLE.

This subtitle may be cited as the ‘‘Make PPE in America
Act’’.

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SEC. 70952. FINDINGS.

Congress makes the following findings:
(1) The COVID–19 pandemic has exposed the vulnerability
of the United States supply chains for, and lack of domestic
production of, personal protective equipment (PPE).

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135 STAT. 1313

(2) The United States requires a robust, secure, and wholly
domestic PPE supply chain to safeguard public health and
national security.
(3) Issuing a strategy that provides the government’s anticipated needs over the next three years will enable suppliers
to assess what changes, if any, are needed in their manufacturing capacity to meet expected demands.
(4) In order to foster a domestic PPE supply chain, United
States industry needs a strong and consistent demand signal
from the Federal Government providing the necessary certainty
to expand production capacity investment in the United States.
(5) In order to effectively incentivize investment in the
United States and the re-shoring of manufacturing, long-term
contracts must be no shorter than three years in duration.
(6) To accomplish this aim, the United States should seek
to ensure compliance with its international obligations, such
as its commitments under the World Trade Organization’s
Agreement on Government Procurement and its free trade
agreements, including by invoking any relevant exceptions to
those agreements, especially those related to national security
and public health.
(7) The United States needs a long-term investment
strategy for the domestic production of PPE items critical to
the United States national response to a public health crisis,
including the COVID–19 pandemic.

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SEC. 70953. REQUIREMENT OF LONG-TERM CONTRACTS FOR DOMESTICALLY MANUFACTURED PERSONAL PROTECTIVE EQUIPMENT.

(a) DEFINITIONS.—In this section:
(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term
‘‘appropriate congressional committees’’ means—
(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Health, Education,
Labor, and Pensions, the Committee on Finance, and the
Committee on Veterans’ Affairs of the Senate; and
(B) the Committee on Homeland Security, the Committee on Oversight and Reform, the Committee on Energy
and Commerce, the Committee on Ways and Means, and
the Committee on Veterans’ Affairs of the House of Representatives.
(2) COVERED SECRETARY.—The term ‘‘covered Secretary’’
means the Secretary of Homeland Security, the Secretary of
Health and Human Services, and the Secretary of Veterans
Affairs.
(3) PERSONAL PROTECTIVE EQUIPMENT.—The term ‘‘personal
protective equipment’’ means surgical masks, respirator masks
and powered air purifying respirators and required filters, face
shields and protective eyewear, gloves, disposable and reusable
surgical and isolation gowns, head and foot coverings, and
other gear or clothing used to protect an individual from the
transmission of disease.
(4) UNITED STATES.—The term ‘‘United States’’ means the
50 States, the District of Columbia, and the possessions of
the United States.
(b) CONTRACT REQUIREMENTS FOR DOMESTIC PRODUCTION.—
Beginning 90 days after the date of the enactment of this Act,

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Effective date.

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135 STAT. 1314

Time period.

Certification.
Time period.

Determination.

Time period.

Consultation.

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Strategy.

Estimate.

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PUBLIC LAW 117–58—NOV. 15, 2021

in order to ensure the sustainment and expansion of personal
protective equipment manufacturing in the United States and meet
the needs of the current pandemic response, any contract for the
procurement of personal protective equipment entered into by a
covered Secretary, or a covered Secretary’s designee, shall—
(1) be issued for a duration of at least 2 years, plus all
option periods necessary, to incentivize investment in the
production of personal protective equipment and the materials
and components thereof in the United States; and
(2) be for personal protective equipment, including the
materials and components thereof, that is grown, reprocessed,
reused, or produced in the United States.
(c) ALTERNATIVES TO DOMESTIC PRODUCTION.—The requirement
under subsection (b) shall not apply to an item of personal protective
equipment, or component or material thereof if, after maximizing
to the extent feasible sources consistent with subsection (b), the
covered Secretary—
(1) maximizes sources for personal protective equipment
that is assembled outside the United States containing only
materials and components that are grown, reprocessed, reused,
or produced in the United States; and
(2) certifies every 120 days that it is necessary to procure
personal protective equipment under alternative procedures to
respond to the immediate needs of a public health emergency.
(d) AVAILABILITY EXCEPTION.—
(1) IN GENERAL.—Subsections (b) and (c) shall not apply
to an item of personal protective equipment, or component
or material thereof—
(A) that is, or that includes, a material listed in section
25.104 of the Federal Acquisition Regulation as one for
which a non-availability determination has been made; or
(B) as to which the covered Secretary determines that
a sufficient quantity of a satisfactory quality that is grown,
reprocessed, reused, or produced in the United States
cannot be procured as, and when, needed at United States
market prices.
(2) CERTIFICATION REQUIREMENT.—The covered Secretary
shall certify every 120 days that the exception under paragraph
(1) is necessary to meet the immediate needs of a public health
emergency.
(e) REPORT.—
(1) IN GENERAL.—Not later than 180 days after the date
of the enactment of this Act, the Director of the Office of
Management and Budget, in consultation with the covered Secretaries, shall submit to the chairs and ranking members of
the appropriate congressional committees a report on the
procurement of personal protective equipment.
(2) ELEMENTS.—The report required under paragraph (1)
shall include the following elements:
(A) The United States long-term domestic procurement
strategy for PPE produced in the United States, including
strategies to incentivize investment in and maintain United
States supply chains for all PPE sufficient to meet the
needs of the United States during a public health emergency.
(B) An estimate of long-term demand quantities for
all PPE items procured by the United States.

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(C) Recommendations for congressional action required
to implement the United States Government’s procurement
strategy.
(D) A determination whether all notifications, amendments, and other necessary actions have been completed
to bring the United States existing international obligations
into conformity with the statutory requirements of this
subtitle.
(f) AUTHORIZATION OF TRANSFER OF EQUIPMENT.—
(1) IN GENERAL.—A covered Secretary may transfer to the
Strategic National Stockpile established under section 319F–
2 of the Public Health Service Act (42 U.S.C. 247d–6b) any
excess personal protective equipment acquired under a contract
executed pursuant to subsection (b).
(2) TRANSFER OF EQUIPMENT DURING A PUBLIC HEALTH
EMERGENCY.—
(A) AMENDMENT.—Title V of the Homeland Security
Act of 2002 (6 U.S.C. 311 et seq.) is amended by adding
at the end the following:

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Recommendations.
Determination.

‘‘SEC. 529. TRANSFER OF EQUIPMENT DURING A PUBLIC HEALTH
EMERGENCY.

6 USC 321r.

‘‘(a) AUTHORIZATION OF TRANSFER OF EQUIPMENT.—During a
public health emergency declared by the Secretary of Health and
Human Services under section 319(a) of the Public Health Service
Act (42 U.S.C. 247d(a)), the Secretary, at the request of the Secretary of Health and Human Services, may transfer to the Department of Health and Human Services, on a reimbursable basis,
excess personal protective equipment or medically necessary equipment in the possession of the Department.
‘‘(b) DETERMINATION BY SECRETARIES.—
‘‘(1) IN GENERAL.—In carrying out this section—
‘‘(A) before requesting a transfer under subsection (a),
the Secretary of Health and Human Services shall determine whether the personal protective equipment or medically necessary equipment is otherwise available; and
‘‘(B) before initiating a transfer under subsection (a),
the Secretary, in consultation with the heads of each component within the Department, shall—
‘‘(i) determine whether the personal protective
equipment or medically necessary equipment requested
to be transferred under subsection (a) is excess equipment; and
‘‘(ii) certify that the transfer of the personal protective equipment or medically necessary equipment will
not adversely impact the health or safety of officers,
employees, or contractors of the Department.
‘‘(2) NOTIFICATION.—The Secretary of Health and Human
Services and the Secretary shall each submit to Congress a
notification explaining the determination made under subparagraphs (A) and (B), respectively, of paragraph (1).
‘‘(3) REQUIRED INVENTORY.—
‘‘(A) IN GENERAL.—The Secretary shall—
‘‘(i) acting through the Chief Medical Officer of
the Department, maintain an inventory of all personal
protective equipment and medically necessary equipment in the possession of the Department; and

Reimbursement.

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Consultation.

Certification.

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135 STAT. 1316

PUBLIC LAW 117–58—NOV. 15, 2021
‘‘(ii) make the inventory required under clause (i)
available, on a continual basis, to—
‘‘(I) the Secretary of Health and Human Services; and
‘‘(II) the Committee on Appropriations and the
Committee on Homeland Security and Governmental Affairs of the Senate and the Committee
on Appropriations and the Committee on Homeland Security of the House of Representatives.
‘‘(B) FORM.—Each inventory required to be made available under subparagraph (A) shall be submitted in unclassified form, but may include a classified annex.’’.
(B) TABLE OF CONTENTS AMENDMENT.—The table of
contents in section 1(b) of the Homeland Security Act of
2002 (Public Law 107–296; 116 Stat. 2135) is amended
by inserting after the item relating to section 528 the
following:

Classified
information.

‘‘Sec. 529. Transfer of equipment during a public health emergency.’’.

Coordination.

Deadline.
Determination.

President.

(3) STRATEGIC NATIONAL STOCKPILE.—Section 319F–2(a) of
the Public Health Service Act (42 U.S.C. 247d–6b(a)) is
amended by adding at the end the following:
‘‘(6) TRANSFERS OF ITEMS.—The Secretary, in coordination
with the Secretary of Homeland Security, may sell drugs, vaccines and other biological products, medical devices, or other
supplies maintained in the stockpile under paragraph (1) to
a Federal agency or private, nonprofit, State, local, tribal, or
territorial entity for immediate use and distribution, provided
that any such items being sold are—
‘‘(A) within 1 year of their expiration date; or
‘‘(B) determined by the Secretary to no longer be
needed in the stockpile due to advances in medical or
technical capabilities.’’.
(g) COMPLIANCE WITH INTERNATIONAL AGREEMENTS.—The
President or the President’s designee shall take all necessary steps,
including invoking the rights of the United States under Article
III of the World Trade Organization’s Agreement on Government
Procurement and the relevant exceptions of other relevant agreements to which the United States is a party, to ensure that the
international obligations of the United States are consistent with
the provisions of this subtitle.

TITLE X—ASSET CONCESSIONS
SEC. 71001. ASSET CONCESSIONS.

(a) ESTABLISHMENT OF PROGRAM.—
(1) IN GENERAL.—Chapter 6 of title 23, United States Code,
is amended by adding at the end the following:

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23 USC 611.

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‘‘§ 611. Asset concessions and innovative finance assistance
‘‘(a) DEFINITIONS.—In this section:
‘‘(1) APPROVED INFRASTRUCTURE ASSET.—The term
‘approved infrastructure asset’ means—
‘‘(A) a project (as defined in section 601(a)); and
‘‘(B) a group of projects (as defined in section 601(a))
considered together in a single asset concession or longterm lease to a concessionaire by 1 or more eligible entities.

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