Senate Likely to Amend Buy America Bill to Exempt Aggregates and Cement

After two weeks of floor debate and many amendments, the U.S. Senate is on the edge of passing S. 1260, a bill intended to revitalize U.S. manufacturing to allow better competition with China, after amending the bill’s new Buy America provision so as to continue to exclude cement, gravel, sand and crushed stone from Buy America requirements.

S. 1260, the “United States Innovation and Competition Act of 2021,” was assembled on the Senate floor by Majority Leader Chuck Schumer (D-NY) from parts produced by many Senate committees, in a 1,420-page substitute amendment last week. On pages 1071-1089 of the substitute are new government-wide Buy America rules produced by the Senate Homeland Security and Governmental Affairs Committee that would supplant the mode-by-mode hodgepodge of Buy America rules that currently attach to federal transportation grants.

The realization that the new rules would add cement and aggregates to the list of materials that have to be sourced in the U.S., even though there are some parts of the U.S. that just don’t have rock buried in the ground, threatened to shut down concrete-using construction activities in many coastal cities and the Gulf Coast, which may not have been what the authors intended. (Buy America was originally about preserving existing U.S. manufacturing jobs in the steel sector, not about forcing people to drive gravel trucks hundreds of miles overland.)

Accordingly, the authors of the Buy America provisions, Sens. Tammy Baldwin (D-WI) and Mike Braun (R-IN), on May 25 introduced an amendment (SA 2026) exempting cement and aggregate from the rule. The amendment (the full text of which is on p. S3457 here) adds the following to the new section 4117 of the bill:


(1) the term ‘‘construction materials’’ shall not include cement and cementitious materials and aggregates such as stone, sand, or gravel; and

(2) the standards developed under section 4115(b)(1) shall not include cement and cementitious materials and aggregates such as stone, sand, or gravel as inputs of the construction material.

The Baldwin-Braun cement/aggregates fix was included in a “manager’s package”* with 35 other last-minute amendments offered at 11:30 p.m. last night by the bill’s floor manager, Commerce Committee chairman Maria Cantwell (D-WA). But she had asked unanimous consent of the Senate to pass the manager’s amendment, and there was a small group of Republicans on the Senate floor opposed to the bill for reasons having nothing to do with Buy America, who objected and then went on to filibuster the bill into the night and then into today.

At about 11:30 a.m. today, Schumer made the decision to pull S. 1260 temporarily and finish the Senate’s other business for the week (including the vote on establishing a bipartisan commission to investigate the January 6 raid on the Capitol) and send Senators home for the Memorial Day recess week.

When the Senate comes back the week of June 7, the manufacturing bill and the manager’s package of amendments that includes the aggregates provision will be the first items of legislative business, as Schumer really wants this bill passed and over with.

The bill now goes to the House, where it crosses so many committee jurisdictional lines that any House response may have to be assembled in the Speaker’s office instead of going through the various committees.

*FYI, the amendments in the manager’s package that Cantwell offered last night were: Collins #1583, Fischer #1637, Johnson #1701, Shaheen #1758, Rubio #1777, Thune #1851, Wicker #1943, Hagerty #1958, Cotton #1964, Blunt #1988, Scott (FL) #2000, Ernst/Hassan #2017, Romney/Menendez #2025, Johnson #2048, Lujan #2082, Cornyn #1768, Merkley #1823, Warnock #1980, Murray #1981, Hassan #2001, Warren #2104, Collins #1622, Wicker #1801, Leahy #2093, Van Hollen #2049, Blackburn #2085, Cortez-Masto #2083, Lankford #1945, Baldwin #2026, Hyde-Smith #1933, Hyde-Smith #1841, Merkley #2103, Ossoff #2105, Barrasso #2094, Rubio #2106, and Kaine #2090.

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