Ensuring the Future Is Made in All of America by All of America's Workers, 7475-7479 [2021-02038]

Agencies

• Executive Office of the President

[Federal Register Volume 86, Number 17 (Thursday, January 28, 2021)]
[Presidential Documents]
[Pages 7475-7479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02038]




                        Presidential Documents 



Federal Register / Vol. 86, No. 17 / Thursday, January 28, 2021 / 
Presidential Documents

[[Page 7475]]


                Executive Order 14005 of January 25, 2021

                
Ensuring the Future Is Made in All of America by 
                All of America's Workers

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, it is hereby ordered as follows:

                Section 1. Policy. It is the policy of my 
                Administration that the United States Government 
                should, consistent with applicable law, use terms and 
                conditions of Federal financial assistance awards and 
                Federal procurements to maximize the use of goods, 
                products, and materials produced in, and services 
                offered in, the United States. The United States 
                Government should, whenever possible, procure goods, 
                products, materials, and services from sources that 
                will help American businesses compete in strategic 
                industries and help America's workers thrive. 
                Additionally, to promote an accountable and transparent 
                procurement policy, each agency should vest waiver 
                issuance authority in senior agency leadership, where 
                appropriate and consistent with applicable law.

                Sec. 2. Definitions. (a) ``Agency'' means any authority 
                of the United States that is an ``agency'' under 
                section 3502(1) of title 44, United States Code, other 
                than those considered to be independent regulatory 
                agencies, as defined in section 3502(5) of title 44, 
                United States Code.

                    (b) ``Made in America Laws'' means all statutes, 
                regulations, rules, and Executive Orders relating to 
                Federal financial assistance awards or Federal 
                procurement, including those that refer to ``Buy 
                America'' or ``Buy American,'' that require, or provide 
                a preference for, the purchase or acquisition of goods, 
                products, or materials produced in the United States, 
                including iron, steel, and manufactured goods offered 
                in the United States. Made in America Laws include laws 
                requiring domestic preference for maritime transport, 
                including the Merchant Marine Act of 1920 (Public Law 
                66-261), also known as the Jones Act.
                    (c) ``Waiver'' means an exception from or waiver of 
                Made in America Laws, or the procedures and conditions 
                used by an agency in granting an exception from or 
                waiver of Made in America Laws.

                Sec. 3. Review of Agency Action Inconsistent with 
                Administration Policy. (a) The head of each agency 
                shall, as soon as practicable and as appropriate and 
                consistent with applicable law, including the 
                Administrative Procedure Act, consider suspending, 
                revising, or rescinding those agency actions that are 
                inconsistent with the policy set forth in section 1 of 
                this order.

                    (b) The head of each agency shall, as soon as 
                practicable and as appropriate and consistent with 
                applicable law, including the Administrative Procedure 
                Act, consider proposing any additional agency actions 
                necessary to enforce the policy set forth in section 1 
                of this order.

                Sec. 4. Updating and Centralizing the Made in America 
                Waiver Process. (a) The Director of the Office of 
                Management and Budget (OMB) shall establish within OMB 
                the Made in America Office. The Made in America Office 
                shall be headed by a Director of the Made in America 
                Office (Made in America Director), who shall be 
                appointed by the Director of OMB.

                    (b) Before an agency grants a waiver, and unless 
                the OMB Director provides otherwise, the agency 
                (granting agency) shall provide the Made in America 
                Director with a description of its proposed waiver and 
                a detailed justification for the use of goods, 
                products, or materials that have not been mined, 
                produced, or manufactured in the United States.

[[Page 7476]]

(i) Within 45 days of the date of the appointment of the Made in America 
Director, and as appropriate thereafter, the Director of OMB, through the 
Made in America Director, shall:

  (1) publish a list of the information that granting agencies shall 
include when submitting such descriptions of proposed waivers and 
justifications to the Made in America Director; and

  (2) publish a deadline, not to exceed 15 business days, by which the 
Director of OMB, through the Made in America Director, either will notify 
the head of the agency that the Director of OMB, through the Made in 
America Director, has waived each review described in subsection (c) of 
this section or will notify the head of the agency in writing of the result 
of the review.

(ii) To the extent permitted by law and consistent with national security 
and executive branch confidentiality interests, descriptions of proposed 
waivers and justifications submitted to the Made in America Director by 
granting agencies shall be made publicly available on the website 
established pursuant to section 6 of this order.

                    (c) The Director of OMB, through the Made in 
                America Director, shall review each proposed waiver 
                submitted pursuant to subsection (b) of this section, 
                except where such review has been waived as described 
                in subsection (b)(i)(2) of this section.

(i) If the Director of OMB, through the Made in America Director, 
determines that issuing the proposed waiver would be consistent with 
applicable law and the policy set forth in section 1 of this order, the 
Director of OMB, through the Made in America Director, shall notify the 
granting agency of that determination in writing.

(ii) If the Director of OMB, through the Made in America Director, 
determines that issuing the proposed waiver would not be consistent with 
applicable law or the policy set forth in section 1 of this order, the 
Director of OMB, through the Made in America Director, shall notify the 
granting agency of the determination and shall return the proposed waiver 
to the head of the agency for further consideration, providing the granting 
agency with a written explanation for the determination.

  (1) If the head of the agency disagrees with some or all of the bases for 
the determination and return, the head of the agency shall so inform the 
Made in America Director in writing.

  (2) To the extent permitted by law, disagreements or conflicts between 
the Made in America Director and the head of any agency shall be resolved 
in accordance with procedures that parallel those set forth in section 7 of 
Executive Order 12866 of September 30, 1993 (Regulatory Planning and 
Review), with respect to the Director of the Office of Information and 
Regulatory Affairs within OMB.

                    (d) When a granting agency is obligated by law to 
                act more quickly than the review procedures established 
                in this section allow, the head of the agency shall 
                notify the Made in America Director as soon as possible 
                and, to the extent practicable, comply with the 
                requirements set forth in this section. Nothing in this 
                section shall be construed as displacing agencies' 
                authorities or responsibilities under law.

                Sec. 5. Accounting for Sources of Cost Advantage. To 
                the extent permitted by law, before granting a waiver 
                in the public interest, the relevant granting agency 
                shall assess whether a significant portion of the cost 
                advantage of a foreign-sourced 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. The granting agency may consult 
                with the International Trade Administration in making 
                this assessment if the granting agency deems such 
                consultation to be helpful. The granting agency shall 
                integrate any findings from the assessment into its 
                waiver determination as appropriate.

                Sec. 6. Promoting Transparency in Federal Procurement. 
                (a) The Administrator of General Services shall develop 
                a public website that shall include

[[Page 7477]]

                information on all proposed waivers and whether those 
                waivers have been granted. The website shall be 
                designed to enable manufacturers and other interested 
                parties to easily identify proposed waivers and whether 
                those waivers have been granted. The website shall also 
                provide publicly available contact information for each 
                granting agency.

                    (b) The Director of OMB, through the Made in 
                America Director, shall promptly report to the 
                Administrator of General Services all proposed waivers, 
                along with the associated descriptions and 
                justifications discussed in section 4(b) of this order, 
                and whether those waivers have been granted. Not later 
                than 5 days after receiving this information, the 
                Administrator of General Services shall, to the extent 
                permitted by law and consistent with national security 
                and executive branch confidentiality interests, make 
                this information available to the public by posting it 
                on the website established under this section.

                Sec. 7. Supplier Scouting. To the extent appropriate 
                and consistent with applicable law, agencies shall 
                partner with the Hollings Manufacturing Extension 
                Partnership (MEP), discussed in the Manufacturing 
                Extension Partnership Improvement Act (title V of 
                Public Law 114-329), to conduct supplier scouting in 
                order to identify American companies, including small- 
                and medium-sized companies, that are able to produce 
                goods, products, and materials in the United States 
                that meet Federal procurement needs.

                Sec. 8. Promoting Enforcement of the Buy American Act 
                of 1933. (a) Within 180 days of the date of this order, 
                the Federal Acquisition Regulatory Council (FAR 
                Council) shall consider proposing for notice and public 
                comment amendments to the applicable provisions in the 
                Federal Acquisition Regulation (FAR), title 48, Code of 
                Federal Regulations, consistent with applicable law, 
                that would:

(i) replace the ``component test'' in Part 25 of the FAR that is used to 
identify domestic end products and domestic construction materials with a 
test under which domestic content is measured by the value that is added to 
the product through U.S.-based production or U.S. job-supporting economic 
activity;

(ii) increase the numerical threshold for domestic content requirements for 
end products and construction materials; and

(iii) increase the price preferences for domestic end products and domestic 
construction materials.

                    (b) The FAR Council shall consider and evaluate 
                public comments on any regulations proposed pursuant to 
                subsection (a) of this section and shall promptly issue 
                a final rule, if appropriate and consistent with 
                applicable law and the national security interests of 
                the United States.

                Sec. 9. Updates to the List of Nonavailable Articles. 
                Before the FAR Council proposes any amendment to the 
                FAR to update the list of domestically nonavailable 
                articles at section 25.104(a) of the FAR, the Director 
                of OMB, through the Administrator of the Office of 
                Federal Procurement Policy (OFPP), shall review the 
                amendment in consultation with the Secretary of 
                Commerce and the Made in America Director, paying 
                particular attention to economic analyses of relevant 
                markets and available market research, to determine 
                whether there is a reasonable basis to conclude that 
                the article, material, or supply is not mined, 
                produced, or manufactured in the United States in 
                sufficient and reasonably available commercial 
                quantities and of a satisfactory quality. The Director 
                of OMB, through the Administrator of OFPP, shall make 
                these findings available to the FAR Council for 
                consideration.

                Sec. 10. Report on Information Technology That Is a 
                Commercial Item. The FAR Council shall promptly review 
                existing constraints on the extension of the 
                requirements in Made in America Laws to information 
                technology that is a commercial item and shall develop 
                recommendations for lifting these constraints to 
                further promote the policy set forth in section 1 of 
                this order, as appropriate and consistent with 
                applicable law.

[[Page 7478]]

                Sec. 11. Report on Use of Made in America Laws. Within 
                180 days of the date of this order, the head of each 
                agency shall submit to the Made in America Director a 
                report on:

                    (a) the agency's implementation of, and compliance 
                with, Made in America Laws;
                    (b) the agency's ongoing use of any longstanding or 
                nationwide waivers of any Made in America Laws, with a 
                written description of the consistency of such waivers 
                with the policy set forth in section 1 of this order; 
                and
                    (c) recommendations for how to further effectuate 
                the policy set forth in section 1 of this order.

                Sec. 12. Bi-Annual Report on Made in America Laws. Bi-
                annually following the initial submission described in 
                section 11 of this order, the head of each agency shall 
                submit to the Made in America Director a report on:

                    (a) the agency's ongoing implementation of, and 
                compliance with, Made in America Laws;
                    (b) the agency's analysis of goods, products, 
                materials, and services not subject to Made in America 
                Laws or where requirements of the Made in America Laws 
                have been waived;
                    (c) the agency's analysis of spending as a result 
                of waivers issued pursuant to the Trade Agreements Act 
                of 1979, as amended, 19 U.S.C. 2511, separated by 
                country of origin; and
                    (d) recommendations for how to further effectuate 
                the policy set forth in section 1 of this order.

                Sec. 13. Ensuring Implementation of Administration 
                Policy on Federal Government Property. Within 180 days 
                of the date of this order, the Administrator of General 
                Services shall submit to the Made in America Director 
                recommendations for ensuring that products offered to 
                the general public on Federal property are procured in 
                accordance with the policy set forth in section 1 of 
                this order.

                Sec. 14. Revocation of Certain Presidential and 
                Regulatory Actions. (a) Executive Order 13788 of April 
                18, 2017 (Buy American and Hire American), section 5 of 
                Executive Order 13858 of January 31, 2019 
                (Strengthening Buy-American Preferences for 
                Infrastructure Projects), and Executive Order 13975 of 
                January 14, 2021 (Encouraging Buy American Policies for 
                the United States Postal Service), are hereby revoked.

                    (b) Executive Order 10582 of December 17, 1954 
                (Prescribing Uniform Procedures for Certain 
                Determinations Under the Buy-America Act), and 
                Executive Order 13881 of July 15, 2019 (Maximizing Use 
                of American-Made Goods, Products, and Materials), are 
                superseded to the extent that they are inconsistent 
                with this order.

                Sec. 15. Severability. If any provision of this order, 
                or the application of any provision to any person or 
                circumstance, is held to be invalid, the remainder of 
                this order and the application of its other provisions 
                to any other persons or circumstances shall not be 
                affected thereby.

                Sec. 16. General Provisions. (a) Nothing in this order 
                shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or 
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals.

                    (b) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.

[[Page 7479]]

                    (c) This order is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    January 25, 2021.

[FR Doc. 2021-02038
Filed 1-27-21; 11:15 am]
Billing code 3295-F1-P