On April 18, 2017, President Trump signed an Executive Order – Buy American and Hire American [not yet published in the Federal Register]. The Executive Order (EO) states that it is the policy of the executive branch to buy American (maximize, consistent with law, 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 hire American (rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act). In this respect, the EO directs every agency to “scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.”
With respect to the “Buy American” portion, the EO sets various time limits for actions and reports:
- Within 150 days, the heads of all agencies shall:
- assess the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within their agencies;
- assess the use of waivers within their agencies by type and impact on domestic jobs and manufacturing; and
- develop and propose policies for their agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal procurements maximize the use of materials produced in the United States, including manufactured products; components of manufactured products; and materials such as steel, iron, aluminum, and cement.
- Within 60 days, the Secretary of Commerce and the Director of the Office of Management and Budget (OMB), in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative (USTR), and the Federal Acquisition Regulatory Council, shall issue guidance to agencies about how to make the assessments and to develop the policies required by subsection (b) of this section.
- Within 150 days, the heads of all agencies shall submit findings made pursuant to the required assessments to the Secretary of Commerce and the OMB Director.
- Within 150 days, the Secretary of Commerce and the USTR shall assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.
- Within 220 days, the Secretary of Commerce, in consultation with the Secretary of State, the OMB Director, and the USTR, shall submit to the President a report on Buy American that includes findings from the above assessments and specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs. Subsequent reports on implementation of Buy American Laws shall be submitted by each agency head annually to the Secretary of Commerce and the OMB Director, on November 15, 2018, 2019, and 2020, and in subsequent years as directed by the Secretary of Commerce and the OMB Director. The Secretary of Commerce shall submit to the President an annual report based on these submissions beginning January 15, 2019.
The EO also requires, to the extent permitted by law, that:
- public interest waivers from Buy American Laws should be construed to ensure the maximum utilization of goods, products, and materials produced in the U.S.;
- the 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; and
- before granting a public interest waiver, the relevant agency shall take appropriate account of 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, and it shall integrate any findings into its waiver determination as appropriate.
With regard to the “Hire American” portion,” the EO requires the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security:
- to propose as soon as practicable, and consistent with applicable law, new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of the immigration system, including through the prevention of fraud or abuse; and(b) in order to promote the proper functioning of the H-1B visa program, to suggest as soon as practicable, reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.