49 USC Ch. 501: BUY-AMERICAN PREFERENCES

From Title 49—TRANSPORTATIONSUBTITLE VII—AVIATION PROGRAMSPART E—MISCELLANEOUS

CHAPTER 501—BUY-AMERICAN PREFERENCES

Sec.

50101.

Buying goods produced in the United States.

50102.

Restricting contract awards because of discrimination against United States goods or services.

50103.

Contract preference for domestic firms.

50104.

Restriction on airport projects using products or services of foreign countries denying fair market opportunities.

50105.

Fraudulent use of "Made in America" label.

Editorial Notes

Amendments

1996—Pub. L. 104–287, §5(88)(B), (C), Oct. 11, 1996, 110 Stat. 3398, redesignated chapter 491 of this title as this chapter and items 49101 to 49105 as 50101 to 50105, respectively.

§50101. Buying goods produced in the United States

(a) Preference.—The Secretary of Transportation may obligate an amount that may be appropriated to carry out section 106(k), 44502(a)(2), or 44509, subchapter I of chapter 471, or chapter 481 (except sections 48102(e), 48106, 48107, and 48110) of this title for a project only if steel and manufactured goods used in the project are produced in the United States.

(b) Waiver.—The Secretary may waive subsection (a) of this section if the Secretary finds that—

(1) applying subsection (a) would be inconsistent with the public interest;

(2) the steel and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality;

(3) when procuring a facility or equipment under section 44502(a)(2) or 44509, subchapter I of chapter 471, or chapter 481 (except sections 48102(e), 48106, 48107, and 48110) of this title—

(A) the cost of components and subcomponents produced in the United States is more than 60 percent of the cost of all components of the facility or equipment; and

(B) final assembly of the facility or equipment has occurred in the United States; or

(4) including domestic material will increase the cost of the overall project by more than 25 percent.

(c) Labor Costs.—In this section, labor costs involved in final assembly are not included in calculating the cost of components.

(d) Limitation on Certain Rolling Stock Procurements.—

(1) In general.—Financial assistance made available under the provisions described in subsection (a) shall not be used in awarding a contract or subcontract to an entity on or after the date of enactment of this subsection for the procurement of rolling stock for use in an airport-related project if the manufacturer of the rolling stock—

(A) is incorporated in or has manufacturing facilities in the United States; and

(B) is owned or controlled by, is a subsidiary of, or is otherwise related legally or financially to a corporation based in a country that—

(i) is identified as a nonmarket economy country (as defined in section 771(18) of the Tariff Act of 1930 (19 U.S.C. 1677(18))) as of the date of enactment of this subsection;

(ii) was identified by the United States Trade Representative in the most recent report required by section 182 of the Trade Act of 1974 (19 U.S.C. 2242) as a foreign country included on the priority watch list defined in subsection (g)(3) of that section; and

(iii) is subject to monitoring by the Trade Representative under section 306 of the Trade Act of 1974 (19 U.S.C. 2416).

(2) Exception.—

(A) In general.—For purposes of paragraph (1), the term "otherwise related legally or financially" does not include—

(i) a minority relationship or investment; or

(ii) relationship with or investment in a subsidiary, joint venture, or other entity based in a country described in paragraph (1)(B) that does not export rolling stock or components of rolling stock for use in the United States.

(B) Corporation based in people's republic of china.—Notwithstanding subparagraph (A)(i), for purposes of paragraph (1), the term "otherwise related legally or financially" includes a minority relationship or investment if the relationship or investment involves a corporation based in the People's Republic of China.

(3) International agreements.—This subsection shall be applied in a manner consistent with the obligations of the United States under international agreements.

(4) Waiver.—

(A) In general.—The Secretary may waive the limitation described in paragraph (1) using the criteria described in subsection (b).

(B) Notification.—Not later than 10 days after issuing a waiver under subparagraph (A), the Secretary shall notify the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1298, §49101; renumbered §50101 and amended Pub. L. 104–287, §5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398; Pub. L. 118–63, title VII, §768(a), May 16, 2024, 138 Stat. 1293.)

Historical and Revision Notes
Pub. L. 103–272
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
49101(a)	49 App.:2226a(a).	Nov. 5, 1990, Pub. L. 101–508, §9129, 104 Stat. 1388–371.
49101(b)	49 App.:2226a(b).
49101(c)	49 App.:2226a(c).

In this chapter, the word "goods" is substituted for "product" and "products" for consistency.

In subsection (a), the words "Notwithstanding any other provision of law" are omitted as surplus. The words "after November 5, 1990" are omitted as obsolete.

In subsection (b), before clause (1), the words "The Secretary may waive" are substituted for "shall not apply" for consistency. In clause (2), the words "steel and goods" are substituted for "materials and products" for consistency. In clause (4), the word "contract" is omitted as surplus.

Pub. L. 104–287, §5(89)

This makes a clarifying amendment to 49:50101(a) and (b)(3), 50102, 50104(b)(1), and 50105, as redesignated by clause (88)(D) of this section, because 49:47106(d) was struck by section 108(1) of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103–305, 108 Stat. 1573).

Editorial Notes

References in Text

The date of enactment of this subsection, referred to in subsec. (d)(1), is the date of enactment of Pub. L. 118–63, which was approved May 16, 2024.

Amendments

2024—Subsecs. (a), (b)(3). Pub. L. 118–63, §768(a)(1), struck out "(except section 47127)" after "subchapter I of chapter 471".

Subsec. (d). Pub. L. 118–63, §768(a)(2), added subsec. (d).

1996—Pub. L. 104–287, §5(88)(D), renumbered section 49101 of this title as this section.

Subsecs. (a), (b)(3). Pub. L. 104–287, §5(89), substituted "section 47127" for "sections 47106(d) and 47127".

Statutory Notes and Related Subsidiaries

Buy America Requirements

Pub. L. 115–254, div. B, title I, §167, Oct. 5, 2018, 132 Stat. 3227, provided that:

"(a) Notice of Waivers.—If the Secretary of Transportation determines that it is necessary to waive the application of section 50101(a) of title 49, United States Code, based on a finding under section 50101(b) of that title, the Secretary, at least 10 days before the date on which the waiver takes effect, shall—

"(1) make publicly available, in an easily identifiable location on the website of the Department of Transportation, a detailed written justification of the waiver determination; and

"(2) provide an informal public notice and comment opportunity on the waiver determination.

"(b) Annual Report.—For each fiscal year, the Secretary shall submit to the appropriate committees of Congress [Committee on Commerce, Science, and Transportation of the Senate and Committee on Transportation and Infrastructure of the House of Representatives] a report on waivers issued under section 50101 of title 49, United States Code, during the fiscal year."

Use of Domestic Products

Pub. L. 103–305, title III, §305, Aug. 23, 1994, 108 Stat. 1592, provided that:

"(a) Prohibition Against Fraudulent Use of 'Made in America' Labels.—(1) A person shall not intentionally affix a label bearing the inscription of 'Made in America', or any inscription with that meaning, to any product sold in or shipped to the United States, if that product is not a domestic product.

"(2) A person who violates paragraph (1) shall not be eligible for any contract for a procurement carried out with amounts authorized under this title [enacting section 47509 of this title, amending sections 44505 and 48102 of this title, and enacting provisions set out as notes under this section and section 40101 of this title], including any subcontract under such a contract pursuant to the debarment, suspension, and ineligibility procedures in subpart 9.4 of chapter 1 of title 48, Code of Federal Regulations, or any successor procedures thereto.

"(b) Compliance With Buy American Act.—(1) Except as provided in paragraph (2), the head of each office within the Federal Aviation Administration that conducts procurements shall ensure that such procurements are conducted in compliance with sections 2 through 4 of the Act of March 3, 1933 ([former] 41 U.S.C. 10a through 10c, popularly known as the 'Buy American Act' [see 41 U.S.C. 8301 et seq.]).

"(2) This subsection shall apply only to procurements made for which—

"(A) amounts are authorized by this title to be made available; and

"(B) solicitations for bids are issued after the date of the enactment of this Act [Aug. 23, 1994].

"(3) The Secretary, before January 1, 1995, shall report to the Congress on procurements covered under this subsection of products that are not domestic products.

"(c) Definitions.—For the purposes of this section, the term 'domestic product' means a product—

"(1) that is manufactured or produced in the United States; and

"(2) at least 50 percent of the cost of the articles, materials, or supplies of which are mined, produced, or manufactured in the United States."

Similar provisions were contained in the following prior authorization act: Pub. L. 102–581, title III, §305, Oct. 31, 1992, 106 Stat. 4896.

Purchase of American Made Equipment and Products

Pub. L. 103–305, title III, §306, Aug. 23, 1994, 108 Stat. 1593, as amended by Pub. L. 118–63, title II, §218(f), May 16, 2024, 138 Stat. 1056, provided that: "It is the sense of Congress that any recipient of a grant under this title [enacting section 47509 of this title, amending sections 44505 and 48102 of this title, and enacting provisions set out as notes under this section and section 40101 of this title], or under any amendment made by this title, should purchase, when available and cost-effective, American made equipment and products when expending grant monies."

§50102. Restricting contract awards because of discrimination against United States goods or services

A person or enterprise domiciled or operating under the laws of a foreign country may not make a contract or subcontract under section 106(k), 44502(a)(2), or 44509, subchapter I of chapter 471, or chapter 481 (except sections 48102(e), 48106, 48107, and 48110) of this title or subtitle B of title IX of the Omnibus Budget Reconciliation Act of 1990 (Public Law 101–508, 104 Stat. 1388–353) if the government of that country unfairly maintains, in government procurement, a significant and persistent pattern of discrimination against United States goods or services that results in identifiable harm to United States businesses, that the President identifies under section 305(g)(1)(A) of the Trade Agreements Act of 1979 (19 U.S.C. 2515(g)(1)(A)).

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1298, §49102; renumbered §50102 and amended Pub. L. 104–287, §5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398; Pub. L. 118–63, title VII, §768(b)(1), May 16, 2024, 138 Stat. 1294.)

Historical and Revision Notes
Pub. L. 103–272
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
49102	49 App.:2226c.	Nov. 5, 1990, Pub. L. 101–508, §9131, 104 Stat. 1388–372; Oct. 31, 1992, Pub. L. 102–581, §118(b), 106 Stat. 4883.

The words "government of that country" are substituted for "that government" for consistency in the revised title and with other titles of the United States Code.

Pub. L. 104–287, §5(89)

Editorial Notes

References in Text

Subtitle B of title IX of the Omnibus Budget Reconciliation Act of 1990, referred to in text, is subtitle B (§§9101–9131) of title IX of Pub. L. 101–508, Nov. 5, 1990, 104 Stat. 1388–353, known as the Aviation Safety and Capacity Expansion Act of 1990. Sections 9102 to 9105, 9107 to 9112(b), 9113 to 9115, 9118, 9121 to 9123, 9124 "Sec. 613(c)", 9125, 9127, and 9129 to 9131 of title IX of Pub. L. 101–508 were repealed by Pub. L. 103–272, §7(b), July 5, 1994, 108 Stat. 1379, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation. For complete classification of this Act to the Code, see Tables. For disposition of sections of former Title 49, see table at the beginning of Title 49.

Amendments

2024—Pub. L. 118–63 struck out "(except section 47127)" after "subchapter I of chapter 471".

1996—Pub. L. 104–287, §5(89), substituted "section 47127" for "sections 47106(d) and 47127".

Pub. L. 104–287, §5(88)(D), renumbered section 49102 of this title as this section.

§50103. Contract preference for domestic firms

(a) Definitions.—In this section—

(1) "domestic firm" means a business entity incorporated, and conducting business, in the United States.

(2) "foreign firm" means a business entity not described in clause (1) of this subsection.

(b) Preference.—Subject to subsections (c) and (d) of this section, the Administrator of the Federal Aviation Administration may make, with a domestic firm, a contract related to a grant made under section 44511, 44512, or 44513 of this title that, under competitive procedures, would be made with a foreign firm, if—

(1) the Administrator decides, and the Secretary of Commerce and the United States Trade Representative concur, that the public interest requires making the contract with the domestic firm, considering United States international obligations and trade relations;

(2) the difference between the bids submitted by the foreign firm and the domestic firm is not more than 6 percent;

(3) the final product of the domestic firm will be assembled completely in the United States; and

(4) at least 51 percent of the final product of the domestic firm will be produced in the United States.

(1) compelling national security considerations require that subsection (b) of this section not apply; or

(2) the Trade Representative decides that making the contract would violate the multilateral trade agreements (as defined in section 3501(4) of title 19) or an international agreement to which the United States is a party.

(d) Application to Certain Grants.—This section applies only to a contract related to a grant made under section 44511, 44512, or 44513 of this title for which—

(1) an amount is authorized by section 48102(a), (b), or (d) of this title to be made available for the fiscal years ending September 30, 1991, and September 30, 1992; and

(2) a solicitation for bid is issued after November 5, 1990.

(e) Report.—The Administrator shall submit a report to Congress on—

(1) contracts to which this section applies that are made with foreign firms in the fiscal years ending September 30, 1991, and September 30, 1992;

(2) the number of contracts that meet the requirements of subsection (b) of this section, but that the Trade Representative decides would violate the multilateral trade agreements (as defined in section 3501(4) of title 19) or an international agreement to which the United States is a party; and

(3) the number of contracts made under this section.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1298, §49103; renumbered §50103, Pub. L. 104–287, §5(88)(D), Oct. 11, 1996, 110 Stat. 3398; amended Pub. L. 106–36, title I, §1002(i), June 25, 1999, 113 Stat. 134.)

Historical and Revision Notes
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
49103(a)	49 App.:2226d(e).	Nov. 5, 1990, Pub. L. 101–508, §9207, 104 Stat. 1388–375.
49103(b)	49 App.:2226d(a).
49103(c)	49 App.:2226d(b).
49103(d)	49 App.:2226d(c).
49103(e)	49 App.:2226d(d).

In subsection (a), the text of 49 App.:2226d(e)(1) is omitted because the complete name of the Administrator of the Federal Aviation Administration is used the first time the term appears in a section.

In subsection (b), before clause (1), the words "Subject to subsections (c) and (d) of this section" are added to alert the reader to the limitations in those subsections. In clause (1), the words "requires making the contract with the domestic firm" are substituted for "so requires" for clarity. The words "considering United States international obligations and trade relations" are substituted for "In determining under this subsection whether the public interest so requires, the Administrator shall take into account United States international obligations and trade relations" to eliminate unnecessary words. In clause (4), the words "when completely assembled" are omitted as surplus. The words "produced in the United States" are substituted for "domestically produced" for consistency with clause (3).

In subsection (c), the words "(1) such applicability would not be in the public interest" are omitted as redundant to subsection (b)(1) of the revised section.

In subsection (e)(1), the words "foreign firms" are substituted for "foreign entities" for consistency in the revised section.

Subsection (e)(3) is substituted for "the number of contracts covered under this subtitle (including the amendments made by this subtitle) and awarded based upon the parameters of this section" to eliminate unnecessary words.

Editorial Notes

Amendments

1999—Subsecs. (c)(2), (e)(2). Pub. L. 106–36 substituted "multilateral trade agreements (as defined in section 3501(4) of title 19)" for "General Agreement on Tariffs and Trade".

1996—Pub. L. 104–287 renumbered section 49103 of this title as this section.

§50104. Restriction on airport projects using products or services of foreign countries denying fair market opportunities

(a) Definition and Rules for Construing Section.—In this section—

(1) "project" has the same meaning given that term in section 47102 of this title.

(2) each foreign instrumentality and each territory and possession of a foreign country administered separately for customs purposes is a separate foreign country.

(3) an article substantially produced or manufactured in a foreign country is a product of the country.

(4) a service provided by a person that is a national of a foreign country or that is controlled by a national of a foreign country is a service of the country.

(b) Limitation on Use of Available Amounts.—(1) An amount made available under subchapter I of chapter 471 of this title may not be used for a project that uses a product or service of a foreign country during any period the country is on the list maintained by the United States Trade Representative under subsection (d)(1) of this section.

(2) Paragraph (1) of this subsection does not apply when the Secretary of Transportation decides that—

(A) applying paragraph (1) to the product, service, or project is not in the public interest;

(B) a product or service of the same class or type and of satisfactory quality is not produced or offered in the United States, or in a foreign country not listed under subsection (d)(1) of this section, in a sufficient and reasonably available amount; and

(c) Decisions on Denial of Fair Market Opportunities.—Not later than 30 days after a report is submitted to Congress under section 181(b) of the Trade Act of 1974 (19 U.S.C. 2241(b)), the Trade Representative, for a construction project of more than $500,000 for which the government of a foreign country supplies any part of the amount, shall decide whether the foreign country denies fair market opportunities for products and suppliers of the United States in procurement or for United States bidders. In making the decision, the Trade Representative shall consider information obtained in preparing the report and other information the Trade Representative considers relevant.

(d) List of Countries Denying Fair Market Opportunities.—(1) The Trade Representative shall maintain a list of each foreign country the Trade Representative finds under subsection (c) of this section is denying fair market opportunities. The country shall remain on the list until the Trade Representative decides the country provides fair market opportunities.

(2) The Trade Representative shall publish in the Federal Register—

(A) annually the list required under paragraph (1) of this subsection; and

(B) any modification of the list made before the next list is published.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1299, §49104; renumbered §50104 and amended Pub. L. 104–287, §5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398; Pub. L. 118–63, title VII, §768(b)(2), May 16, 2024, 138 Stat. 1294.)

Historical and Revision Notes
Pub. L. 103–272
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
49104(a)(1)	(no source).
49104(a)(2)– (4)	49 App.:2226(d).	Sept. 3, 1982, Pub. L. 97–248, 96 Stat. 324, §533; added Dec. 30, 1987, Pub. L. 100–223, §115, 101 Stat. 1505.
49104(b)	49 App.:2226(a).
49104(c)	49 App.:2226(b).
49104(d)	49 App.:2226(c).

Subsection (a)(1) is added for clarity.

In subsection (b)(1), the words "subchapter I of chapter 471 of this title (except sections 47106(d) and 47127)" are substituted for "Act" in section 533(a)(1) of the Airport and Airway Development Act of 1982, as added by section 115 of the Airport and Airway Safety and Capacity Expansion Act of 1987 (Public Law 100–223, 101 Stat. 1505) to correct a mistake.

In subsection (b)(2), before clause (A), the words "with respect to the use of a product or service in a project" are omitted as surplus. In clause (B), the words "or service" are added for clarity and consistency in this section. In clause (C), the words "overall" and "contract" are omitted as surplus.

In subsection (c), the words "the date which is", "the date on which", "or not", and "and equitable" are omitted as surplus.

In subsection (d)(1), the words "finds under subsection (c) of this section is denying fair market opportunities" are substituted for "with respect to which an affirmative determination is made under subsection (b)" for clarity.

In subsection (d)(2)(A), the word "entire" is omitted as surplus.

Pub. L. 104–287, §5(89)

Editorial Notes

Amendments

2024—Subsec. (b). Pub. L. 118–63 struck out "(except section 47127)" after "subchapter I of chapter 471 of this title".

1996—Pub. L. 104–287, §5(88)(D), renumbered section 49104 of this title as this section.

Subsec. (b)(1). Pub. L. 104–287, §5(89), substituted "section 47127" for "sections 47106(d) and 47127".

§50105. Fraudulent use of "Made in America" label

If the Secretary of Transportation decides that a person intentionally affixed a "Made in America" label to goods sold in or shipped to the United States that are not made in the United States, the Secretary shall declare the person ineligible, for not less than 3 nor more than 5 years, to receive a contract or grant from the United States Government related to a contract made under section 106(k), 44502(a)(2), or 44509, subchapter I of chapter 471, or chapter 481 (except sections 48102(e), 48106, 48107, and 48110) of this title or subtitle B of title IX of the Omnibus Budget Reconciliation Act of 1990 (Public Law 101–508, 104 Stat. 1388–353). The Secretary may bring a civil action to enforce this section in any district court of the United States.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1300, §49105; renumbered §50105 and amended Pub. L. 104–287, §5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398; Pub. L. 118–63, title VII, §768(b)(3), May 16, 2024, 138 Stat. 1295.)

Historical and Revision Notes
Pub. L. 103–272
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
49105	49 App.:2226b.	Nov. 5, 1990, Pub. L. 101–508, §9130, 104 Stat. 1388–372; Oct. 31, 1992, Pub. L. 102–581, §118(a), 106 Stat. 4883.

Pub. L. 104–287, §5(89)

Editorial Notes

References in Text

Amendments

2024—Pub. L. 118–63 struck out "(except section 47127)" after "subchapter I of chapter 471".

1996—Pub. L. 104–287, §5(89), substituted "section 47127" for "sections 47106(d) and 47127".

Pub. L. 104–287, §5(88)(D), renumbered section 49105 of this title as this section.