Sec. 2301. Buy America
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Chapter 53 of title 49, United States Code, is amended by inserting before section 5321 the following: The Secretary may obligate an amount that may be appropriated to carry out this chapter for a project only if the steel, iron, and manufactured goods used in the project are produced in the United States. The Secretary may waive subsection
(a)if the Secretary finds that— applying subsection
(a)would be inconsistent with the public interest; the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; when procuring rolling stock (including train control, communication, traction power equipment, and rolling stock prototypes) under this chapter— the cost of components and subcomponents produced in the United States is more than 70 percent of the cost of all components of the rolling stock; and final assembly of the rolling stock has occurred in the United States; or including domestic material will increase the cost of the overall project by more than 25 percent. Not later than 120 days after the submission of a request for a waiver, the Secretary shall make a determination under subsection (b)(1), (b)(2), or (b)(4) as to whether to waive subsection (a). Not later than 30 days before making a determination regarding a waiver described in paragraph (1), the Secretary shall provide notification and an opportunity for public comment on the request for such waiver. The notification required under subparagraph
(A)shall— describe whether the application is being made for a waiver described in subsection (b)(1), (b)(2) or (b)(4); and be provided to the public by electronic means, including on the public website of the Department of Transportation. Before a determination described in paragraph
(1)takes effect, the Secretary shall publish a detailed justification for such determination that addresses all public comments received under paragraph (2)— on the public website of the Department of Transportation; and if the Secretary issues a waiver with respect to such determination, in the Federal Register. Annually, the Secretary shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report listing any waiver issued under paragraph
(1)during the preceding year. In this section, labor costs involved in final assembly shall be included as a separate component in the cost of components and subcomponents under subsection (b)(3)(A). In this section, in calculating the domestic content of the rolling stock under subsection (b)(3), the percent, rounded to the nearest whole number, of the domestic content in components of such rolling stock, weighted by cost, shall be used in calculating the domestic content of the rolling stock, except— with respect to components that exceed— 70 percent domestic content, the Secretary shall add 10 additional percent to the component’s domestic content when calculating the domestic content of the rolling stock; and 75 percent domestic content, the Secretary shall add 15 additional percent to the component’s domestic content when calculating the domestic content of the rolling stock; and in no case may a component exceed 100 domestic content when calculating the domestic content of the rolling stock. In calculating the cost of the domestic content of the rolling stock under subsection (b)(3), in the case of a rolling stock procurement receiving assistance under this chapter in which the average cost of a rolling stock vehicle in the procurement is more than $300,000, if rolling stock frames or car shells are not produced in the United States, the Secretary shall include in the calculation of the domestic content of the rolling stock the cost of the steel or iron that is produced in the United States and used in the rolling stock frames or car shells. In this section, a component or subcomponent waived under subsection
(b)shall be excluded from any part of the calculation required under subsection (b)(3)(A). The Secretary shall provide an additional 2.5 percent of domestic content to the total rolling stock domestic content percentage calculated under this section for any zero-emission vehicle that uses only battery cells for propulsion that are manufactured domestically. If the Secretary denies an application for a waiver under subsection (b), the Secretary shall provide to the applicant a written certification that— the steel, iron, or manufactured goods, as applicable, (referred to in this paragraph as the item ) is produced in the United States in a sufficient and reasonably available amount; the item produced in the United States is of a satisfactory quality; and includes a list of known manufacturers in the United States from which the item can be obtained. The Secretary shall disclose the waiver denial and the written certification to the public in an easily identifiable location on the website of the Department of Transportation. The Secretary may not make a waiver under subsection
(b)for goods produced in a foreign country if the Secretary, in consultation with the United States Trade Representative, decides that the government of that foreign country— has an agreement with the United States Government under which the Secretary has waived the requirement of this section; and has violated the agreement by discriminating against goods to which this section applies that are produced in the United States and to which the agreement applies. A person is ineligible under subpart 9.4 of the Federal Acquisition Regulation, or any successor thereto, to receive a contract or subcontract made with amounts authorized under title II of the INVEST in America Act if a court or department, agency, or instrumentality of the Government decides the person intentionally— affixed a Made in America label, or a label with an inscription having the same meaning, to goods sold in or shipped to the United States that are used in a project to which this section applies but not produced in the United States; or represented that goods described in paragraph
(1)were produced in the United States. The Secretary may not impose any limitation on assistance provided under this chapter that restricts a State from imposing more stringent requirements than this subsection on the use of articles, materials, and supplies mined, produced, or manufactured in foreign countries in projects carried out with that assistance or restricts a recipient of that assistance from complying with those State-imposed requirements. The Secretary may allow a manufacturer or supplier of steel, iron, or manufactured goods to correct after bid opening any certification of noncompliance or failure to properly complete the certification (but not including failure to sign the certification) under this subsection if such manufacturer or supplier attests under penalty of perjury that such manufacturer or supplier submitted an incorrect certification as a result of an inadvertent or clerical error. The burden of establishing inadvertent or clerical error is on the manufacturer or supplier. A party adversely affected by an agency action under this subsection shall have the right to seek review under section 702 of title 5. For purposes of this section, steel and iron meeting the requirements of section 661.5(b) of title 49, Code of Federal Regulations, may be considered produced in the United States. For purposes of determining whether a purchase qualifies for a general public interest waiver under subsection (b)(1), including under any regulation promulgated under such subsection, the term small purchase means a purchase of not more than $150,000. The Secretary shall prescribe regulations requiring a preaward and postdelivery certification of a rolling stock vehicle that meets the requirements of this section and Government motor vehicle safety requirements to be eligible for a grant under this chapter. For compliance with this section— Federal inspections and review are required; a manufacturer certification is not sufficient; and a rolling stock vehicle that has been certified by the Secretary remains certified until the manufacturer makes a material change to the vehicle, or adjusts the price of the vehicle, that reduces, by more than half, the percentage of domestic content above 70 percent. The Secretary may, at the request of a component or subcomponent manufacturer, certify the percentage of domestic content and final assembly for a component or subcomponent. In carrying out this subsection, the Secretary shall consistently apply the provisions of section 552 of title 5, including subsection (b)(4) of such section. The Secretary shall prohibit recipients from procuring rolling stock, components, or subcomponents from a supplier that intentionally provides false information to comply with this subsection. The requirements of this section apply to all contracts for a public transportation project carried out within the scope of the applicable finding, determination, or decision under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.), regardless of the funding source of such contracts, if at least one contract for the public transportation project is funded with amounts made available to carry out this chapter. The Secretary shall ensure that all Federal funds for commuter rail projects shall comply with this section and shall not be subject to section 22905(a). The Inspector General of the Department of Transportation shall conduct an annual audit on certifications under subsection (m). The Secretary shall display a Report Fraud, Waste, and Abuse button and link to Department of Transportation’s Office of Inspector General Hotline on the Federal Transit Administration’s Buy America landing page. The Secretary shall require all recipients who enter into contracts to purchase rolling stock with funds provided under this chapter to include in such contract information on how to contact the Department of Transportation’s Office of Inspector General Hotline to report suspicions of fraud, waste, and abuse. Any domestically manufactured passenger motor vehicle shall be considered to be produced in the United States under this section. In this subsection, the term domestically manufactured passenger motor vehicle means any passenger motor vehicle, as such term is defined in section 32304(a) that— has under section 32304(b)(1)(B) its final assembly place in the United States; and the percentage (by value) of passenger motor equipment under section 32304(b)(1)(A) equals or exceeds 60 percent value added. . The analysis for chapter 53 of title 49, United States Code, is amended by inserting before the item relating to section 5321 the following: 5320. Buy America. . Section 5314(a)(2)(G) of title 49, United States Code, is amended by striking sections 5323(j) and 5323(m) and inserting section 5320 . Section 5307(c)(1)(E) of title 49, United States Code, is amended by inserting , 5320, after 5323 . Section 3019(c)(2)(E)(ii) of the FAST Act ( 49 U.S.C. 5325 note) is amended by striking 5232(j) and inserting 5320 . Not later than 18 months after the date of enactment of this Act, the Secretary of Transportation shall issue such regulations as are necessary to revise Appendix B and Appendix D of section 661.11 of title 49, Code of Federal Regulations, with respect to bus rolling stock to maximize job creation and align such section with modern manufacturing techniques. Not later than 30 months after the date of enactment of this Act, the Secretary shall issue such regulations as are necessary to revise subsections (t), (u), and
(v)of section 661.11 of title 49, Code of Federal Regulations, with respect to rail rolling stock to maximize job creation and align such section with modern manufacturing techniques. Except as otherwise provided in this subsection, the amendments made by this section shall apply to any contract entered into on or after the date of enactment of this Act. Contracts described in paragraph
(1)shall be subject to the following delayed applicability requirements: Section 5320(m)(2) shall apply to contracts entered into on or after the date that is 30 days after the date of enactment of this Act. Notwithstanding subparagraph (A), section 5320(m) shall apply to contracts for the procurement of bus rolling stock beginning on the earlier of— 180 days after the date on which final regulations are issued pursuant to subsection (b); or the date that is 1 year after the date of enactment of this Act. Notwithstanding subparagraph (A), section 5320(m) shall apply to contracts for the procurement of rail rolling stock beginning on the earlier of— 180 days after the date on which final regulations are issued pursuant to subsection (c); or the date that is 2 years after the date of enactment of this Act. Section 5320(p)(1) shall apply on the date that is 1 year after the latest of the application dates described in subparagraphs
(A)through (C). For any contract described in paragraph
(1)for which the delivery for the first production vehicle occurs before October 1, 2024, paragraphs
(1)and
(4)of section 5320(d) shall not apply. For any contract described in paragraph
(1)for which the delivery for the first production vehicle occurs before October 1, 2022, section 5320(d)(5) shall not apply. For the calculation of the percent of domestic content calculated under section 5320(d)(2) for a contract for rolling stock entered into on or after October 1, 2020— if the delivery of the first production vehicle occurs in fiscal year 2022 or fiscal year 2023, for components that exceed 70 percent domestic content, the Secretary shall add 20 additional percent to the component’s domestic content; and if the delivery of the first production vehicle occurs in fiscal year 2024 or fiscal year 2025— for components that exceed 70 percent but do not exceed 75 percent domestic content, the Secretary shall add 15 additional percent to the component’s domestic content; or for components that exceed 75 percent domestic content, the Secretary shall add 20 additional percent to the component’s domestic content.
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