49 U.S.C. § 50103 — Contract preference for domestic firms

Page 1729 TITLE 49—TRANSPORTATION § 50103 ‘‘(a) PROHIBITION AGAINST FRAUDULENT USE OF ‘MADE IN AMERICA’ LABELS.—(1) A person shall not inten- tionally 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 sec- tion 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 pursu- ant to the debarment, suspension, and ineligibility pro- cedures 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) Ex- cept as provided in paragraph (2), the head of each of- fice within the Federal Aviation Administration that conducts procurements shall ensure that such procure- ments 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 re- port to the Congress on procurements covered under this subsection of products that are not domestic prod- ucts. ‘‘(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 expend- ing 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 chap- ter 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 un- fairly maintains, in government procurement, a significant and persistent pattern of discrimina- tion 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 Agree- ments 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 sub- stituted for ‘‘that government’’ for consistency in the revised title and with other titles of the United States Code. 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 Admin- istration Authorization Act of 1994 (Public Law 103–305, 108 Stat. 1573). Editorial Notes REFERENCES IN TEXT Subtitle B of title IX of the Omnibus Budget Rec- onciliation 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 Ca- pacity 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 Sec- retary of Commerce and the United States Trade Representative concur, that the public interest requires making the contract with Page 1730 TITLE 49—TRANSPORTATION § 50104 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. (c) NONAPPLICATION.—Subsection (b) of this section does not apply if— (1) compelling national security consider- ations require that subsection (b) of this sec- tion not apply; or (2) the Trade Representative decides that making the contract would violate the multi- lateral trade agreements (as defined in section 3501(4) of title 19) or an international agree- ment 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 Sep- tember 30, 1991, and September 30, 1992; and (2) a solicitation for bid is issued after No- vember 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 Sep- tember 30, 1992; (2) the number of contracts that meet the re- quirements of subsection (b) of this section, but that the Trade Representative decides would violate the multilateral trade agree- ments (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 Adminis- trator of the Federal Aviation Administration is used the first time the term appears in a section. In subsection (b), before clause (1), the words ‘‘Sub- ject to subsections (c) and (d) of this section’’ are added to alert the reader to the limitations in those sub- sections. 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 rela- tions’’ 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 elimi- nate 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 re- dundant 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 un- necessary 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 de- nying 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 man- ufactured 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 con- trolled 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 serv- ice 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 de- cides 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 pro- duced or offered in the United States, or in a foreign country not listed under subsection (d)(1) of this section, in a sufficient and rea- sonably available amount; and (C) the project cost will increase by more than 20 percent if the product or service is ex- cluded. (c) DECISIONS ON DENIAL OF FAIR MARKET OP- PORTUNITIES.—Not later than 30 days after a re-