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H.R. 3607 (117th): Buy Green Act of 2021

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The text of the bill below is as of May 28, 2021 (Introduced). The bill was not enacted into law.

I

117th CONGRESS

1st Session

H. R. 3607

IN THE HOUSE OF REPRESENTATIVES

May 28, 2021

(for himself, Mr. Huffman, and Mr. Brendan F. Boyle of Pennsylvania) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Oversight and Reform, and Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To support and fund the Federal procurement of clean energy products, and for other purposes.

1.

Short title

This Act may be cited as the Buy Green Act of 2021.

2.

Definitions

In this Act:

(1)

Appropriate committees of Congress

The term appropriate committees of Congress means—

(A)

the Committee on Commerce, Science, and Transportation of the Senate;

(B)

the Committee on Environment and Public Works of the Senate;

(C)

the Committee on Transportation and Infrastructure of the House of Representatives; and

(D)

the Committee on Energy and Commerce of the House of Representatives.

(2)

Clean power

The term clean power means power derived from a renewable energy source.

(3)

Covered product

(A)

In general

The term covered product means—

(i)

energy—

(I)

used to power a facility; and

(II)

the production of which comes from a renewable energy source; and

(ii)

a product that—

(I)

is produced or manufactured—

(aa)

in the United States (including the territories of the United States);

(bb)

in accordance with all relevant energy efficiency, environmental preference, and safety designations; and

(cc)

by an entity that complies with the labor requirements under section 6; and

(II)

reduces energy usage during the lifecycle of the product by—

(aa)

minimizing energy, water, or material resources associated with the product;

(bb)

increasing opportunities for reuse and recycling due to the durability or repairability of the product; and

(cc)

improving environmental and human health impacts.

(B)

Inclusions

The term covered product includes a product described in subparagraph (A)(ii) that—

(i)

is a zero-emission vehicle or a nonmotorized alternative mode of transportation;

(ii)

is a zero-emission form of public transportation, including high-speed rail;

(iii)

is a product or low-carbon material used to design, construct, or retrofit buildings, including a product bearing the Green Seal certification;

(iv)

improves the energy efficiency measures of facilities to make facilities environmentally responsible;

(v)

is a product used to maintain or clean buildings;

(vi)

is an appliance certified under the Energy Star program established under section 324A of the Energy Policy and Conservation Act (42 U.S.C. 6294a);

(vii)

is an electronics product bearing the EPEAT certification; or

(viii)

is an energy-storage technology.

(4)

Covered small business

The term covered small business means—

(A)

a small business concern owned and controlled by socially and economically disadvantaged individuals (as defined in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)));

(B)

a small business concern owned and controlled by women (as defined in section 3 of that Act (15 U.S.C. 632)); and

(C)

a small business concern owned and controlled by veterans (as defined in section 3 of that Act (15 U.S.C. 632)).

(5)

Eligible material

The term eligible material means a material for which the Secretary establishes a maximum global warming potential under section 4(b).

(6)

Environmentally responsible

The term environmentally responsible, with respect to a facility or manufacturing capability, means that—

(A)

the facility or manufacturing capability is in compliance with, or carried out in accordance with, as applicable, all relevant energy efficiency, environmental preference, and safety designations; and

(B)

in the case of a facility, the facility is built or retrofitted with materials that minimize the use of—

(i)

energy;

(ii)

water; and

(iii)

material resources that produce pollutants or toxins, as determined by the Secretary.

(7)

Federal building

The term Federal building has the meaning given the term in section 551 of the National Energy Conservation Policy Act (42 U.S.C. 8259).

(8)

Frontline, vulnerable, and disadvantaged community

The term frontline, vulnerable, and disadvantaged community means a community—

(A)

in an area described in section 301(a) of the Public Works and Economic Development Act of 1965 (42 U.S.C. 3161(a)); and

(B)

in which climate change, pollution, or environmental destruction have exacerbated systemic racial, regional, social, environmental, gender, and economic injustices by disproportionately affecting Black, Brown, and Indigenous peoples, other communities of color, migrant communities, deindustrialized communities, depopulated rural communities, the poor, low-income workers, women, the elderly, the unhoused, people with disabilities, or youth.

(9)

Fund

The term Fund means the Clean Energy Fund established under section 3(a).

(10)

Global warming potential

The term global warming potential, with respect to an eligible material, means a measure that indicates how much energy the emissions of 1 ton of gases associated with the lifecycle of that eligible material, including the manufacture, use, and disposal of that eligible material, will absorb, on average, over a given period of time, relative to the emissions of 1 ton of carbon dioxide.

(11)

Oversight Advisory Board

The term Oversight Advisory Board means the Green Procurement Oversight Advisory Board established under section 7.

(12)

Renewable energy source

The term renewable energy source means energy generated from a renewable source, including the following renewable energy sources:

(A)

Solar, including electricity.

(B)

Wind.

(C)

Ocean, including tidal, wave, current, and thermal.

(D)

Geothermal, including electricity and heat pumps.

(E)

Hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project that was placed in service on or after January 1, 1999.

(F)

Hydrogen derived from a renewable source of energy.

(G)

Thermal energy generated by any of the sources described in subparagraphs (A) through (F).

(13)

Secretary

The term Secretary means the Secretary of Energy.

(14)

Small business

The term small business has the meaning given the term small business concern in section 3 of the Small Business Act (15 U.S.C. 632).

3.

Clean Energy Fund

(a)

In general

Not later than January 1, 2023, the Secretary shall establish a fund in the Department of Energy, to be known as the Clean Energy Fund.

(b)

Use of Fund

(1)

In general

The Secretary shall—

(A)

use amounts in the Fund—

(i)

to purchase covered products for use by the Secretary, including covered products relating to information technology and general supplies and services, in accordance with subsection (g) and section 5;

(ii)

to establish and carry out the grant programs under subsections (c) and (d); and

(iii)

to carry out the Federal building activities described in subsection (e); and

(B)

transfer amounts from the Fund—

(i)

to 1 or more Federal agencies (excluding the Department of Defense)—

(I)

to purchase covered products for use by the Federal agency, in accordance with subsection (g) and section 5; and

(II)

to carry out the Federal building activities described in subsection (e); and

(ii)

to the Administrator of General Services to carry out subsection (f).

(2)

Purchases from small businesses

Of the amounts from the Fund made available to a Federal agency in a fiscal year, the head of the Federal agency shall ensure that not less than 20 percent is used to purchase covered products from small businesses and covered small businesses.

(c)

State, Tribal, and local government grant program

(1)

In general

Not later than January 1, 2023, the Secretary, in coordination with the Secretary of the Treasury, shall establish a green procurement grant program under which the Secretary shall provide grants on a competitive basis to States, Indian Tribes, and units of local government to purchase covered products for use by the State, Indian Tribe, or unit of local government, as applicable, in accordance with subsection (g), section 5, and the labor requirements under section 6.

(2)

Selection of grant recipients

The Secretary shall—

(A)

share with the Oversight Advisory Board applications received under the grant program established under paragraph (1); and

(B)

in coordination with the Secretary of the Treasury, select grant recipients under that program after receiving the recommendations of the Oversight Advisory Board relating to grant recipients.

(3)

Distribution of grants

Of the amounts available in the Fund in a fiscal year to carry out the program under paragraph (1), the Secretary shall ensure that—

(A)

not less than 60 percent but not more than 65 percent of the amount of a grant awarded to a State, Indian Tribe, or unit of local government shall be used to purchase covered products for use in urban areas located in or under the jurisdiction of the State, Indian Tribe, or unit of local government, as applicable;

(B)

not less than 40 percent of the amount of a grant awarded to a State, Indian Tribe, or unit of local government shall be used to purchase covered products for use in frontline, vulnerable, and disadvantaged communities located in or under the jurisdiction of the State, Indian Tribe, or unit of local government, as applicable; and

(C)

not less than 20 percent of the amount of a grant awarded to a State, Indian Tribe, or unit of local government shall be used to purchase covered products from small businesses and covered small businesses.

(4)

Priority for school bus electrification

In providing grants under paragraph (1), the Secretary shall give priority to States, Indian Tribes, and units of local government that will use the grant for the electrification of school buses in frontline, vulnerable, and disadvantaged communities and subsequently in all other communities located in or under the jurisdiction of the State, Indian Tribe, or unit of local government, as applicable.

(5)

Duration of grant

Funds provided under a grant under paragraph (1) shall be available to the State, Indian Tribe, or unit of local government receiving the grant for not less than 3 years after the date on which the funds are provided.

(d)

Industry grants

(1)

Definitions

In this subsection:

(A)

Eligible entity

(i)

In general

The term eligible entity means a company that—

(I)

is organized under the laws of the United States or any jurisdiction within the United States; or

(II)

is otherwise subject to the jurisdiction of the United States.

(ii)

Exclusion

The term eligible entity does not include a foreign branch of a company described in clause (i).

(B)

Greenhouse gas emissions

The term greenhouse gas emissions means emissions of any of the following gases:

(i)

Carbon dioxide.

(ii)

Methane.

(iii)

Nitrous oxide.

(iv)

Hydrofluorocarbons.

(v)

Perfluorocarbons.

(vi)

Sulfur hexafluoride.

(vii)

Nitrogen trifluoride.

(2)

Establishment

Not later than January 1, 2022, the Secretary shall establish a program under which the Secretary shall provide grants, on a competitive basis, to eligible entities—

(A)

to retrofit or otherwise upgrade facilities that produce covered products, including to make those facilities environmentally responsible; and

(B)

for the development of environmentally responsible manufacturing capabilities to bolster the production of covered products, including by—

(i)

constructing new environmentally responsible facilities in the United States for the production of covered products; and

(ii)

retrofitting or otherwise upgrading existing facilities in the United States—

(I)

to produce covered products; and

(II)

to make those facilities environmentally responsible.

(3)

Selection of grant recipients

In providing grants under paragraph (2), the Secretary shall—

(A)

share grant applications with the Oversight Advisory Board;

(B)

select grant recipients after receiving the recommendations of the Oversight Advisory Board relating to grant recipients;

(C)

consider—

(i)

any labor, health or safety, or discrimination charges filed against the eligible entity in the preceding 2 years;

(ii)

any violations of the National Labor Relations Act (29 U.S.C. 151 et seq.) reported to the National Labor Relations Board in the preceding 2 years;

(iii)

as applicable, whether wages and benefits for auto workers are not less than the industry standards for wages and benefits for auto workers who are represented by a labor organization;

(iv)

whether jobs created for purposes of activities supported through the grant will be permanent positions, rather than temporary or contingent positions;

(v)

whether training required under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) will be provided for employees, including any safety supervisors;

(vi)

the policy of the eligible entity with respect to coverage of workers’ compensation; and

(vii)

whether the work sites that will be used for activities supported through the grant have independent health and safety monitoring policies; and

(D)

prioritize applications that specify that the eligible entity—

(i)

participates or will participate in a registered apprenticeship program; or

(ii)

prioritizes the employment of individuals trained and certified by labor organizations, or joint labor-management organizations, that promote a skilled workforce with high standards for quality and safety.

(4)

Requirement

An eligible entity receiving a grant under paragraph (2) shall comply with the labor requirements under section 6 with respect to the activities carried out using, or otherwise supported by, the grant.

(5)

Submission of environmental product declaration

The Secretary shall require each eligible entity to which the Secretary awards a grant under paragraph (2) to submit to the Secretary, for each eligible material proposed to be used in the applicable project—

(A)

a current facility-specific Environmental Product Declaration, Type III (as defined by the International Organization for Standardization standard 14025); or

(B)

a declaration made under a similarly robust lifecycle assessment method that has—

(i)

uniform standards in data collection consistent with that standard;

(ii)

industry acceptance; and

(iii)

integrity.

(6)

Certifications

The Secretary shall require that any application for a grant under paragraph (2) shall include a certification that the facility-specific global warming potential for any eligible material proposed to be used in that project does not exceed the maximum acceptable global warming potential established under paragraph (1) of section 4(b) (as adjusted under paragraph (2)(A)(ii) of that section, if applicable) for that eligible material.

(7)

Goal

In carrying out this subsection, the Secretary shall strive to achieve a continuous reduction of greenhouse gas emissions over time.

(8)

Purchases from small businesses

Of the amounts made available under subsection (j) in a fiscal year to carry out the grant program established under paragraph (2), the Secretary shall ensure that not less than 20 percent is used to provide grants under that program to eligible entities that are small businesses or covered small businesses.

(9)

Report on implementation and effectiveness

Not later than January 1, 2023, the Secretary shall submit to the appropriate committees of Congress and the Oversight Advisory Board a report describing—

(A)

any obstacles to the implementation of the grant program established under this subsection;

(B)

the effectiveness of the grant program in reducing—

(i)

greenhouse gas emissions; and

(ii)

the global warming potential for eligible materials; and

(C)

the effectiveness of the grant program in—

(i)

creating and maintaining jobs in the United States that comply with the labor requirements under section 6; and

(ii)

protecting the rights of workers in the United States, including the right of certain workers to organize and bargain collectively.

(e)

Federal building activities

The Federal building activities referred to in subsection (b) are, with respect to a Federal agency, activities—

(1)

to construct new, modern Federal buildings of that Federal agency, including new hospitals, medical centers, and clinics in the case of the Department of Veterans Affairs, that are sustainable and resilient, including through the purchase of low-carbon materials for that construction; and

(2)

to modernize, and improve the sustainability and resilience of, Federal buildings of that Federal agency, including hospitals, medical centers, and clinics in the case of the Department of Veterans Affairs, including through—

(A)

the purchase of low-carbon materials for retrofitting, remodeling, or otherwise improving Federal buildings; and

(B)

the purchase of clean power for Federal buildings.

(f)

Replacement of Federal fleet

Using amounts from the Fund, the Administrator of General Services shall purchase zero-emission vehicles to replace the existing Federal fleet (as defined by the term fleet in section 301 of the Energy Policy Act of 1992 (42 U.S.C. 13211)) so that by the end of fiscal year 2030 the entire Federal fleet consists of zero-emission vehicles.

(g)

Priority for purchasing covered products

A Federal agency, State, Indian Tribe, or unit of local government purchasing covered products pursuant to this section shall give priority to purchasing covered products that—

(1)

are made from renewable and recycled resources (including biobased products);

(2)

have lower lifecycle emissions than comparable products; and

(3)

are designed for—

(A)

reducing environmental impacts; and

(B)

recycling.

(h)

Buy American

(1)

In general

Chapter 83 of title 41, United States Code, shall apply with respect to purchases of covered products made pursuant to this section—

(A)

by a Federal agency; and

(B)

in the case of purchases by a non-Federal entity, in the same manner in which that chapter applies to the Federal Government.

(2)

Exceptions and waivers

The Secretary shall, to the maximum extent practicable, minimize the number of exceptions and waivers granted under chapter 83 of title 41, United States Code, with respect to purchases of covered products made pursuant to this section.

(i)

Report

Not less frequently than once each fiscal year, the Secretary shall submit to the appropriate committees of Congress and the Oversight Advisory Board a report that—

(1)

describes the activities carried out using amounts in the Fund, including data on the clean power purchased under subsection (e)(2)(B);

(2)

includes data on the covered products purchased pursuant to those activities; and

(3)

includes data on compliance with subsection (h).

(j)

Authorization of appropriations

There is authorized to be appropriated to the Fund $1,500,000,000,000 for the period of fiscal years 2022 through 2031, to remain available until January 1, 2042, of which not less than—

(1)

$750,000,000,000 shall be used to carry out the grant program established under subsection (c); and

(2)

$250,000,000,000 shall be used to carry out the grant program established under subsection (d).

4.

Department of Energy

(a)

Senior procurement officer

The Secretary shall—

(1)

be designated as the senior procurement officer for the Department of Energy; and

(2)

coordinate with the Director of the Office of Management and Budget in carrying out procurement for the Department of Energy.

(b)

Maximum acceptable global warming potential of eligible materials

(1)

Establishment

(A)

In general

Not later than January 1, 2022, the Secretary shall establish, and publish in the Federal Register—

(i)

an initial list of materials for which the Secretary shall establish a maximum acceptable global warming potential under this subsection; and

(ii)

the maximum acceptable global warming potential for each material identified on that list, as determined in accordance with subparagraph (B).

(B)

Requirements

(i)

Industry average

(I)

In general

The maximum acceptable global warming potential for an eligible material under subparagraph (A) shall be expressed as a number that is equal to the industry average of facility-specific global warming potential emissions for that eligible material, as determined under subclause (II).

(II)

Determination

The Secretary shall determine the industry average described in subclause (I) for an eligible material by consulting nationally or internationally recognized databases of environmental product declarations.

(ii)

Consistency with environmental product declaration

Each maximum acceptable global warming potential established under subparagraph (A) shall be established in a manner that is consistent with the requirements of an environmental product declaration.

(C)

Report

Not later than January 1, 2023, the Secretary shall submit to the appropriate committees of Congress and the Oversight Advisory Board a report that describes the method that the Secretary used to develop the maximum global warming potential for each eligible material under subparagraph (A).

(2)

Review and adjustment

(A)

In general

Not later than January 1, 2026, and every 3 years thereafter through 2042, the Secretary—

(i)

shall review the maximum acceptable global warming potential established under paragraph (1) for each eligible material; and

(ii)

may adjust that maximum acceptable global warming potential for an eligible material downward to reflect industry improvements if the Secretary, based on the process described in paragraph (1)(B)(i)(II), determines that the industry average has changed.

(B)

Publication

If the Secretary adjusts the maximum acceptable global warming potential of an eligible material downward under subparagraph (A)(ii), the Secretary shall publish the updated maximum global warming potential in the Federal Register.

(C)

Prohibition

After establishing the maximum acceptable global warming potential for an eligible material under paragraph (1), the Secretary may not adjust that maximum acceptable global warming potential upward.

5.

Requirements for procurement of covered products

An entity procuring a covered product pursuant to this Act shall ensure that the procurement—

(1)

is conducted in compliance with all applicable laws regarding fair and open competition in contracting;

(2)

is subject to appropriate cost controls;

(3)

provides for whistleblower protections for employees of contractors and subcontractors;

(4)

requires contractors and subcontractors to retain records pertinent to contract performance;

(5)

requires contractors to submit to the entity audited financial statements covering the contract performance period; and

(6)

is conducted in compliance with section 552 of title 5, United States Code (commonly known as the Freedom of Information Act) and other applicable open records laws.

6.

Labor requirements

(a)

Definitions

In this section:

(1)

Covered activities

The term covered activities means—

(A)

with respect to a covered entity described in subparagraph (A) of paragraph (2), activities involving producing or manufacturing a covered product; or

(B)

with respect to a covered entity described in subparagraph (B) of such paragraph, activities supported by the grant.

(2)

Covered entity

The term covered entity means—

(A)

an entity producing or manufacturing a product as described in section 2(3)(A)(ii)(I)(cc); or

(B)

an entity receiving a grant under this Act.

(b)

Requirements

The labor requirements under this section with respect to a covered entity are each of the following:

(1)

Minimum wage

(A)

In general

The covered entity shall ensure that all employees of the covered entity, and of any contractor or subcontractor of the covered entity with respect to the covered activities, who are engaged in the covered activities shall be paid at a rate of not less than—

(i)

$15.00 an hour, beginning on the date of enactment of this Act; and

(ii)

beginning on the date that is 1 year after such date of enactment, and annually thereafter, the greater of—

(I)

the amount in effect under this subparagraph for the preceding year, increased by the annual percentage increase, if any, in the median hourly wage of all employees as determined by the Bureau of Labor Statistics and rounded up to the nearest multiple of $0.05; or

(II)

10 percent more than the minimum wage applicable under section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206).

(B)

Calculation

In calculating the annual percentage increase in the median hourly wage of all employees for purposes of subparagraph (A)(ii)(I), the Secretary of Labor, through the Bureau of Labor Statistics, shall—

(i)

compile data on the hourly wages of all employees to determine such a median hourly wage; and

(ii)

compare such median hourly wage for the most recent year for which data are available with the median hourly wage determined for the preceding year.

(C)

Requirements applicable to construction

Notwithstanding any other requirement in this section, all laborers and mechanics employed by contractors or subcontractors in the performance of construction, alteration, or repair work assisted, in whole or in part, with a grant under this Act shall be paid wages at rates not less than those prevailing on similar construction, alteration, or repair work in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. The Secretary of Labor shall have, with respect to such labor standards, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, United States Code.

(D)

Requirements applicable to vehicle production

(i)

Definitions

In this subparagraph:

(I)

Covered production worker

The term covered production worker means a worker who—

(aa)

is employed by an establishment in the Motor Vehicle Manufacturing industry (Code 3361 of the North American Industry Classification System);

(bb)

is directly involved in the production of a vehicle; and

(cc)

is not a manager, engineer, or involved in research and development, or does not have a skilled trade.

(II)

Industry standard wage rate

The term industry standard wage rate, with respect to covered production workers, means the median wage rate for all covered production workers, as determined by the Secretary of Labor in accordance with clause (iv).

(III)

Top earning wage rate

The term top earning wage rate means the value of the wage rate for which 75 percent of covered production workers earn less, as determined by the Secretary of Labor in accordance with clause (iv).

(ii)

Minimum wage rate

Notwithstanding any other requirement in this section, the covered entity shall ensure that—

(I)

the average rate of pay for all covered production workers employed, directly by a manufacturer or through a subcontractor or employment services agency, in the performance of covered activities is not less than the industry standard wage rate for covered production workers; and

(II)

all covered production workers described in subclause (I) are paid not less than the rate in effect under subparagraph (A).

(iii)

Pathway to top earning wage rate

The covered entity shall ensure that all covered production workers employed, directly by a manufacturer or through a subcontractor or employment services agency, in the performance of covered activities, are covered by a policy determined in a labor organization contract or a written company policy that provides, to the extent practicable, a pathway for such workers to earn the top earning wage rate not later than 7 years after beginning such employment.

(iv)

Determining wages of workers in the industry

For purposes of this subparagraph, in determining for a year the industry standard wage rate and the top earning wage rate, the Secretary of Labor shall use the National Industry-Specific Occupational Employment and Wage Estimates, for the preceding year, for the Motor Vehicle Manufacturing industry (Code 3361 of the North American Industry Classification System) for the occupation of Assemblers and Fabricators (Occupational Code 51–2000 of the Occupational Employment Statistics of the Bureau of Labor Statistics).

(2)

Neutrality toward organized labor

The covered entity shall have, and ensure that all contractors and subcontractors of the covered entity with respect to the covered activities, have—

(A)

an explicit policy of neutrality with regard to—

(i)

labor organizing for the employees engaged in the covered activities; and

(ii)

such employees' choice to form and join labor organizations; and

(B)

policies that require—

(i)

the posting and maintenance of notices in the workplace to such employees of their rights under the National Labor Relations Act (29 U.S.C. 151 et seq.); and

(ii)

that such employees are, at the beginning of their employment, provided notice and information regarding the employees' rights under such Act.

(3)

Paid family and medical leave

The covered entity shall have, and ensure that all contractors and subcontractors of the covered entity with respect to the covered activities have, an explicit policy providing all employees engaged in the covered activities not less than 12 workweeks of paid leave in a 12-month period for any purpose described in section 102(a)(1) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)), in accordance with regulations promulgated by the Secretary of Labor.

(4)

Fair scheduling

(A)

In general

The covered entity shall have, and ensure that all contractors and subcontractors of the covered entity with respect to the covered activities have, an explicit policy for fair scheduling for employees engaged in the covered activities, which shall include—

(i)

an opportunity for the employee to request—

(I)

an adjustment in the number of hours, work location, or times of the employee's work schedule;

(II)

a change in the amount of notification provided to the employee regarding the work schedule; or

(III)

the minimizing of fluctuations in the number of hours the employee is scheduled to work on a daily, weekly, or monthly basis; and

(ii)

a timely, good faith interactive process through which the covered entity, or contractor or subcontractor, and employee discuss the employee's request under clause (i) and the covered entity, or contractor or subcontractor, grants the request or suggests any alternatives that might meet the employee's needs.

(B)

Exception

Subparagraph (A) shall not apply to any employee covered by a valid collective bargaining agreement if—

(i)

the terms of the collective bargaining agreement include terms that govern work scheduling practices; and

(ii)

the provisions of this paragraph are expressly waived in such collective bargaining agreement.

(5)

Preference for local hiring

The covered entity shall have, and ensure that all contractors and subcontractors with respect to the covered activities have, explicit policies that provide a preference for local hiring for individuals engaged in the covered activities, consistent with applicable Federal law and subject to rules issued by the Secretary of Labor.

(6)

Employee classification

The covered entity shall consider, and ensure that all contractors and subcontractors of the covered entity with respect to the covered activities consider, an individual performing any service for remuneration for the covered entity, or contractor or subcontractor, in the performance of the covered activities as an employee (and not an independent contractor) of the covered entity, or contractor or subcontractor, unless—

(A)

the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of the service and in fact;

(B)

the service is performed outside the usual course of the business of the covered entity or the contractor or subcontractor; and

(C)

the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in such service.

7.

Green Procurement Oversight Advisory Board

(a)

In general

There is established a Green Procurement Oversight Advisory Board within the Department of Energy.

(b)

Coordination

The Oversight Advisory Board shall carry out its activities in coordination with the Office of Federal Sustainability and the Office of Management and Budget.

(c)

Membership

The members of the Oversight Advisory Board shall—

(1)

be appointed by the Secretary of Energy; and

(2)

consist of—

(A)

experts on procurement and clean energy, including scientists, from Federal and State agencies;

(B)

1 or more representatives from—

(i)

each of—

(I)

the Office of Science and Technology Policy;

(II)

the General Services Administration; and

(III)

the Council on Environmental Quality;

(ii)

environmental justice organizations; and

(iii)

unionized labor groups; and

(C)

chief financial officers of private companies.

(d)

Functions

The Oversight Advisory Board shall—

(1)

oversee the procurement of covered products by Federal agencies pursuant to this Act, including to ensure that procurement of those products is carried out—

(A)

efficiently and in accordance with relevant contracting and labor laws, including open competition requirements;

(B)

in compliance with relevant conflict of interest requirements;

(C)

in a manner that—

(i)

promotes open competition; and

(ii)

prevents frauds; and

(D)

by Federal agency personnel sufficiently trained to ensure responsible procurement practices pursuant to this Act and the goals of this Act;

(2)

offer recommendations relating to the selection of recipients of grants under the grant programs established under this Act, with the goal of ensuring that grant recipients will use the grant funds—

(A)

efficiently and in accordance with relevant contracting and labor laws, including open competition requirements;

(B)

in compliance with relevant conflict of interest requirements;

(C)

in a manner that—

(i)

promotes open competition; and

(ii)

prevents frauds; and

(D)

by personnel sufficiently trained to ensure responsible procurement practices pursuant to this Act and the goals of this Act; and

(3)

submit an annual report to the Comptroller General of the United States, Congress, and the President describing—

(A)

the procurement of covered products by Federal agencies pursuant to this Act; and

(B)

the recommendations made by the Oversight Advisory Board under paragraph (2).

(e)

Authorities

The Oversight Advisory Board—

(1)

shall have the authority to issue subpoenas; and

(2)

may refer parties that engage in fraud in connection with a procurement contract entered into by a Federal agency pursuant to this Act to the appropriate Federal law enforcement authority.

(f)

Treatment as advisory committee

The Oversight Advisory Board is an advisory committee (as defined in section 3 of the Federal Advisory Committee Act (5 U.S.C. App.)).

8.

Oversight by Comptroller General

The Comptroller General of the United States shall—

(1)

conduct oversight of the funds appropriated under this Act to ensure transparency and compliance with all applicable requirements; and

(2)

shall make publicly available an annual report that—

(A)

evaluates the efficacy of the programs established under this Act; and

(B)

makes recommendations for any improvements to those programs.