[House Report 115-1044]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1044
======================================================================
ALL-AMERICAN FLAG ACT
_______
November 27, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 3121]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 3121) to require the purchase of
domestically made flags of the United States of America for use
by the Federal Government, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 2
Background and Need for Legislation.............................. 2
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 3
Statement of General Performance Goals and Objectives............ 3
Legislative History.............................................. 3
Committee Consideration.......................................... 4
Roll Call Votes.................................................. 4
Explanation of Amendments........................................ 6
Application of Law to the Legislative Branch..................... 6
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Federal Advisory Committee Act................................... 6
Unfunded Mandates Statement...................................... 7
Earmark Identification........................................... 7
Committee Estimate............................................... 7
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 7
Section-by-Section Analysis...................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 8
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``All-American Flag Act''.
SEC. 2. REQUIREMENT FOR AGENCIES TO BUY DOMESTICALLY MADE UNITED STATES
FLAGS.
(a) Requirement for Agencies to Buy Domestically Made United States
Flags.--
(1) In general.--Chapter 63 of title 41, United States Code,
is amended by adding at the end the following new section:
``Sec. 6310. Requirement for agencies to buy domestically made United
States flags
``(a) Requirement.--Except as provided in subsections (b) through
(d), funds appropriated or otherwise available to an agency may not be
used for the procurement of any flag of the United States, unless such
flag has been 100 percent manufactured in the United States from
articles, materials, or supplies that have been grown or 100 percent
produced or manufactured in the United States.
``(b) Availability Exception.--Subsection (a) does not apply to the
extent that the head of the agency concerned determines that
satisfactory quality and sufficient quantity of a flag described in
such subsection cannot be procured as and when needed at United States
market prices.
``(c) Exception for Certain Procurements.--Subsection (a) does not
apply to the following:
``(1) Procurements by vessels in foreign waters.
``(2) Procurements for resale purposes in any military
commissary, military exchange, gift shop, or nonappropriated
fund instrumentality operated by an agency.
``(3) Procurements for amounts less than the simplified
acquisition threshold.
``(d) Presidential Waiver.--
``(1) In general.--The President may waive the requirement in
subsection (a) if the President determines a waiver is
necessary to comply with any trade agreement to which the
United States is a party.
``(2) Notice of waiver.--Not later than 30 days after
granting a waiver under paragraph (1), the President shall
publish a notice of the waiver in the Federal Register.
``(e) Definitions.--In this section:
``(1) Agency.--The term `agency' has the meaning given the
term `executive agency' in section 102 of title 40.
``(2) Simplified acquisition threshold.--The term `simplified
acquisition threshold' has the meaning given that term in
section 134.''.
(2) Clerical amendment.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following new item:
``6310. Requirement for agencies to buy domestically made United States
flags.''.
(b) Applicability.--Section 6310 of title 41, United States Code, as
added by subsection (a)(1), shall apply with respect to any contract
entered into on or after the date that is 180 days after the date of
the enactment of this Act.
Summary and Purpose of Legislation
H.R. 3121, the All-American Flag Act, requires all
executive agencies to buy American flags made entirely in the
United States from materials grown, produced, or manufactured
entirely in the United States. The bill contains a number of
exceptions to this general requirement and a waiver provision
if needed to comply with U.S. trade agreements.
Background and Need for Legislation
H.R. 3121 is a product of thorough examination of the Buy
American Act. Currently, flag purchases by civilian executive
agencies are generally subject to the Buy American Act and the
regulations implementing that Act, which generally provide the
cost of components mined, produced, or manufactured in the
United States must exceed 50 percent of the cost of all
components.\1\ However, purchases by the Department of Defense
of certain products, including fabrics, are subject to
additional restrictions contained in law, commonly known as the
Berry Amendment.\2\ Items covered by the Berry Amendment must
be made from materials that are 100 percent domestic in origin.
The Department of Defense considers flags to be covered by the
Berry Amendment.\3\
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\1\41 U.S.C. Sec. Sec. 8301-8305; 48 C.F.R. 25.101.
\2\10 U.S.C. Sec. 2533a.
\3\See, 48 C.F.R. 252.226(1)(b) (implementing appropriations riders
requiring that U.S. flags be treated as covered items under the Berry
Amendment). See, e.g., Consolidated Appropriations Act, 2016, Pub. L.
No. 114-113, div. C, title VIII, Sec. 8110, 129 Stat. 2377 (Dec. 18,
2015).
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The All-American Flag Act provides a general, uniform rule
requiring all executive agencies to acquire U.S. flags that are
100 percent American made. Specifically, the bill requires that
U.S. flags acquired by executive agencies be manufactured in
the United States from materials that are 100 percent grown,
produced, or manufactured in the United States.
The bill allows for an exception to the 100 percent rule in
cases where flags of satisfactory quality and complying with
the requirements of the bill cannot be procured in sufficient
quantities at U.S. market prices. Finally, the bill provides
authority for the President to waive the 100 percent
requirement if needed to comply with any trade agreement to
which the United States is a party.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the previous section.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to require the purchase of
domestically made flags of the United States of America for use
by the Federal Government.
Legislative History
On June 29, 2017, Representative Cheri Bustos (D-IL)
introduced H.R. 3121, the All-American Flag Act, with 34 co-
sponsors. H.R. 3121 was referred to the Committee on Oversight
and Government Reform. The Committee considered H.R. 3121 at a
business meeting on November 2, 2017, and ordered the bill
favorably reported to the House, as amended, by voice vote.
In the 114th Congress, Representative Bustos introduced
H.R. 916, a similar bill to H.R. 3121, on February 12, 2015,
with 88 co-sponsors. H.R. 916 was referred to the Committee on
Oversight and Government Reform.
In the 113th Congress, Senator Sherrod Brown (D-OH)
introduced S. 1214, a similar bill to H.R. 3121, on June 24,
2013, with Senator John D. Rockefeller, IV (D-WV). S. 1214 was
referred to the Senate Committee on Homeland Security and
Governmental Affairs. The Committee considered S. 1214 at a
business meeting on June 25, 2014, and ordered the bill
reported favorably by voice vote. On September 16, 2014, the
Senate passed the bill by unanimous consent.
Committee Consideration
On November 2, 2017, the Committee met in open session and,
with a quorum being present, ordered the bill favorably
reported to the House, as amended, by voice vote.
Roll Call Votes
There was one roll call vote during consideration of H.R.
3121:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Explanation of Amendments
On November 2, 2017, the Committee met in open session with
a quorum being present. During Committee consideration of the
bill, Representative Steve Russell (R-OK), offered an amendment
in the nature of a substitute to align the bill with current
law as applicable to the Department of Defense. The amendment
substituted new exception provisions, consistent with those in
the Berry Amendment. Specifically, it provided for an exception
to the requirement to purchase 100 percent domestically made
flags to the extent that the head of an agency determines that
a satisfactory quality and sufficient quantity of flags meeting
the requirement cannot be procured as and when needed at U.S.
market prices. The amendment further provided that the 100
percent requirement does not apply to procurements by vessels
in foreign water, procurements for resale, and procurements for
amounts less than the simplified acquisition threshold. The
amendment makes permanent the practice of applying the Berry
Amendment requirement and exceptions to the purchase of U.S.
flags by the Department of Defense, and extends a similar
requirement and similar exceptions to all civilian executive
agencies. The Russell amendment was adopted by a roll call vote
of 35 to 1.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill to require the purchase of domestically made flags of
the United States of America for use by the Federal Government
relates only to procurement of flags of the United States. As
such, this bill does not relate to employment or access to
public services and accommodations.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget Act of
1974 the Committee has included a letter received from the
Congressional Budget Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 6, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3121, the All-
American Flag Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3121--All-American Flag Act
H.R. 3121 would amend federal law to require that all U.S.
flags acquired by the federal government be manufactured in the
United States from materials grown, produced, or manufactured
in the United States. H.R. 3121 also would provide exceptions
to the requirement.
Using information from the General Services Administration
and flag vendors, CBO expects that enacting H.R. 3121 would not
lead to a significant change in the costs of flags acquired by
the government because some current vendors already meet the
requirements of the bill and because the legislation includes
general exemptions from the requirement.
Enacting H.R. 3121 could affect direct spending by agencies
that are not funded through annual appropriations; therefore,
pay-as-you-go procedures apply. CBO estimates, however, that
any net increase in spending by those agencies would be
negligible. Enacting the bill would not affect revenues.
CBO estimates that enacting H.R. 3121 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 3121 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Section-by-Section Analysis
Section 1. Short title
The short title is the ``All-American Flag Act.''
Sec. 2. Requirement for agencies to buy domestically made united states
flags
Section 2 requires agencies to buy only domestically-made
United States flags and adds a new section 6310 at the end of
Chapter 63 of title 41, United States Code. The requirements of
this bill only apply to contracts entered into on or after 180
days after the date of enactment.
The new section 6310 prohibits agencies from using funds
appropriated or otherwise available for the procurement of any
flag of the United States, unless the flag has been 100 percent
manufactured in the United States from articles, materials, or
supplies that have been grown, or 100 percent produced and/or
manufactured, in the United States. This requirement does not
apply in cases when the head of the agency determines that U.S.
flags of satisfactory quality and sufficient quantity that
satisfy the requirement described in subsection (a) cannot be
procured as and when needed at U.S. market prices. This section
also establishes exceptions for procurements by vessels in
foreign waters, for procurements for resale purposes, and for
procurements for amounts less than the simplified acquisition
threshold.
The section further establishes authority for a
Presidential waiver. The President may waive the requirement if
the President determines that a waiver is necessary to comply
with any trade agreement to which the United States is a party.
The President is required to publish notice of the waiver in
the Federal Register not later than 30 days after granting it.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 41, UNITED STATES CODE
* * * * * * *
SUBTITLE II--OTHER ADVERTISING AND CONTRACT PROVISIONS
* * * * * * *
CHAPTER 63--GENERAL CONTRACT PROVISIONS
Sec
6301. Authorization requirement.
* * * * * * *
6310. Requirement for agencies to buy domestically made United States
flags.
* * * * * * *
Sec. 6310. Requirement for agencies to buy domestically made United
States flags
(a) Requirement.--Except as provided in subsections (b)
through (d), funds appropriated or otherwise available to an
agency may not be used for the procurement of any flag of the
United States, unless such flag has been 100 percent
manufactured in the United States from articles, materials, or
supplies that have been grown or 100 percent produced or
manufactured in the United States.
(b) Availability Exception.--Subsection (a) does not apply to
the extent that the head of the agency concerned determines
that satisfactory quality and sufficient quantity of a flag
described in such subsection cannot be procured as and when
needed at United States market prices.
(c) Exception for Certain Procurements.--Subsection (a) does
not apply to the following:
(1) Procurements by vessels in foreign waters.
(2) Procurements for resale purposes in any military
commissary, military exchange, gift shop, or
nonappropriated fund instrumentality operated by an
agency.
(3) Procurements for amounts less than the simplified
acquisition threshold.
(d) Presidential Waiver.--
(1) In general.--The President may waive the
requirement in subsection (a) if the President
determines a waiver is necessary to comply with any
trade agreement to which the United States is a party.
(2) Notice of waiver.--Not later than 30 days after
granting a waiver under paragraph (1), the President
shall publish a notice of the waiver in the Federal
Register.
(e) Definitions.--In this section:
(1) Agency.--The term ``agency'' has the meaning
given the term ``executive agency'' in section 102 of
title 40.
(2) Simplified acquisition threshold.--The term
``simplified acquisition threshold'' has the meaning
given that term in section 134.
* * * * * * *
[all]