Thank you very much, ladies and gentlemen.
Thank you for inviting me to participate in today's session focused on President Biden's buy American executive order.
I was surprised to receive the invitation.
I think everyone knows that since the inauguration of the Biden administration, the administration has been focused intently on the COVID-19 pandemic and domestic economic issues. It has concomitantly been moving more cautiously on trade issues. In a sense, President Biden's January buy American executive order falls between the two.
I'm happy to talk about the executive order this evening, but I have to emphasize that I'm not part of the administration. I last served in the Obama-Biden administration in September, 2013. I'm speaking to you as a law professor who teaches international trade and pays a reasonable amount of attention to policy developments in Washington.
As you know, the executive order does not change any of the statutory laws that are commonly called “buy American”, or “buy America provisions”. The executive order calls for a general tightening of department and agency implementation of the statutory provisions.
It does this by doing the following. It establishes a centralized process for granting waivers to buy American requirements, such that “a description of its proposed waiver and a detailed justification” of the waiver must be submitted to the White House's Office of Management and Budget. It makes descriptions of these proposed waivers and justifications available on a publicly accessible website. That is clearly intended to be a resource for American manufacturers who might want to bid on contracts that have not yet received a waiver. It allows the Office of Management and Budget to review each waiver, or to decline to review the waiver. The OMB may reject a waiver, in which case it goes back to the agency for further consideration and further analysis of the determination.
All of that is supposed to happen through a new made in America director in the Office of Management and Budget.
The president's executive order also requires the Federal Acquisition Regulatory Council to study and consider changing the very elaborate and detailed federal acquisition regulations in various ways that could increase the amount of federal purchases that have U.S. value added in it. Then—and this should be important to Canada—the executive order also calls for a longer term assessment, agency by agency, of “waivers issued pursuant to the Trade Agreements Act of 1979, as amended, 19 U.S.C. 2511, separated by country of origin”.
We are still in the earliest days of the implementation of the executive order. No made in America director has yet been appointed by the White House. My understanding is that so far the Office of Management and Budget has been gathering information from agencies and departments on waivers that had been granted in the recent past, analyzing those waivers and determining to what extent things can be tightened up.
My purely personal impression is that they have not yet identified as much abuse or looseness in the waiver system as some expected. I also think that—