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US (United States) Code. Title 49. Subtitle VII: Aviation programs. Part E. Chapter 501: Buy-American preferences

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-CITE-

49 USC CHAPTER 501 - BUY-AMERICAN PREFERENCES 01/06/03

-EXPCITE-

TITLE 49 - TRANSPORTATION

SUBTITLE VII - AVIATION PROGRAMS

PART E - MISCELLANEOUS

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-HEAD-

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-MISC1-

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.

AMENDMENTS

1996 - Pub. L. 104-287, Sec. 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.

-End-

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49 USC Sec. 50101 01/06/03

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TITLE 49 - TRANSPORTATION

SUBTITLE VII - AVIATION PROGRAMS

PART E - MISCELLANEOUS

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-HEAD-

Sec. 50101. Buying goods produced in the United States

-STATUTE-

(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 (except section

47127), 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 (except section

47127), 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.

assembly are not included in calculating the cost of components.

-SOURCE-

(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1298, Sec.

49101; renumbered Sec. 50101 and amended Pub. L. 104-287, Sec.

5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398.)

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HISTORICAL AND REVISION NOTES

PUB. L. 103-272

--------------------------------------------------------------------

Revised Source (U.S. Code) Source (Statutes at Large)

Section

--------------------------------------------------------------------

49101(a) 49 App.:2226a(a). Nov. 5, 1990, Pub. L.

101-508, Sec. 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, SEC. 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).

AMENDMENTS

1996 - Pub. L. 104-287, Sec. 5(88)(D), renumbered section 49101

of this title as this section.

Subsecs. (a), (b)(3). Pub. L. 104-287, Sec. 5(89), substituted

"section 47127" for "sections 47106(d) and 47127".

USE OF DOMESTIC PRODUCTS

Pub. L. 103-305, title III, Sec. 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 (41 U.S.C. 10a through 10c

[41 U.S.C. 10a - 10b-1], popularly known as the 'Buy American

Act').

"(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, Sec. 305, Oct. 31,

1992, 106 Stat. 4896.

PURCHASE OF AMERICAN MADE EQUIPMENT AND PRODUCTS

Pub. L. 103-305, title III, Sec. 306, Aug. 23, 1994, 108 Stat.

1593, provided that:

"(a) Sense of Congress. - 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.

"(b) Notice to Recipients of Assistance. - In allocating grants

under this title, or under any amendment made by this title, the

Secretary shall provide to each recipient a notice describing the

statement made in subsection (a) by the Congress."

-End-

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49 USC Sec. 50102 01/06/03

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TITLE 49 - TRANSPORTATION

SUBTITLE VII - AVIATION PROGRAMS

PART E - MISCELLANEOUS

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-HEAD-

Sec. 50102. Restricting contract awards because of discrimination

against United States goods or services

-STATUTE-

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

(except section 47127), 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)).

-SOURCE-

(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1298, Sec.

49102; renumbered Sec. 50102 and amended Pub. L. 104-287, Sec.

5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398.)

-MISC1-

HISTORICAL AND REVISION NOTES

PUB. L. 103-272

--------------------------------------------------------------------

Revised Source (U.S. Code) Source (Statutes at Large)

Section

--------------------------------------------------------------------

49102 49 App.:2226c. Nov. 5, 1990, Pub. L.

101-508, Sec. 9131, 104

Stat. 1388-372; Oct. 31,

1992, Pub. L. 102-581, Sec.

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, SEC. 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).

-REFTEXT-

REFERENCES IN TEXT

Subtitle B of title IX of the Omnibus Budget Reconciliation Act

of 1990, referred to in text, is subtitle B (Secs. 9101-9131) of

title IX of Pub. L. 101-508, Nov. 5, 1990, 104 Stat. 1388-353, as

amended, 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, Sec.

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.

-MISC2-

AMENDMENTS

1996 - Pub. L. 104-287, Sec. 5(89), substituted "section 47127"

for "sections 47106(d) and 47127".

Pub. L. 104-287, Sec. 5(88)(D), renumbered section 49102 of this

title as this section.

-End-

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49 USC Sec. 50103 01/06/03

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TITLE 49 - TRANSPORTATION

SUBTITLE VII - AVIATION PROGRAMS

PART E - MISCELLANEOUS

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-HEAD-

Sec. 50103. Contract preference for domestic firms

-STATUTE-

(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.

apply if -

(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.

-SOURCE-

(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1298, Sec.

49103; renumbered Sec. 50103, Pub. L. 104-287, Sec. 5(88)(D), Oct.

11, 1996, 110 Stat. 3398; amended Pub. L. 106-36, title I, Sec.

1002(i), June 25, 1999, 113 Stat. 134.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised Source (U.S. Code) Source (Statutes at Large)

Section

--------------------------------------------------------------------

49103(a) 49 App.:2226d(e). Nov. 5, 1990, Pub. L.

101-508, Sec. 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.

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.

-End-

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49 USC Sec. 50104 01/06/03

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TITLE 49 - TRANSPORTATION

SUBTITLE VII - AVIATION PROGRAMS

PART E - MISCELLANEOUS

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-HEAD-

Sec. 50104. Restriction on airport projects using products or

services of foreign countries denying fair market opportunities

-STATUTE-

(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 (except

section 47127) 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

the product or service is excluded.

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

(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.

-SOURCE-

(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1299, Sec.

49104; renumbered Sec. 50104 and amended Pub. L. 104-287, Sec.

5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398.)

-MISC1-

HISTORICAL AND REVISION NOTES

PUB. L. 103-272

--------------------------------------------------------------------

Revised Source (U.S. Code) Source (Statutes at Large)

Section

--------------------------------------------------------------------

49104(a)(1) (no source).

49104(a)( 49 App.:2226(d). Sept. 3, 1982, Pub. L.

2)- (4) 97-248, 96 Stat. 324, Sec.

533; added Dec. 30, 1987,

Pub. L. 100-223, Sec. 115,

101 Stat. 1505.

49104(b) 49 App.:2226(a).

49104(c) 49 App.:2226(b).

49104(d) 49 App.:2226(c).

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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, SEC. 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).

AMENDMENTS

1996 - Pub. L. 104-287, Sec. 5(88)(D), renumbered section 49104

of this title as this section.

Subsec. (b)(1). Pub. L. 104-287, Sec. 5(89), substituted "section

47127" for "sections 47106(d) and 47127".

-End-

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49 USC Sec. 50105 01/06/03

-EXPCITE-

TITLE 49 - TRANSPORTATION

SUBTITLE VII - AVIATION PROGRAMS

PART E - MISCELLANEOUS

CHAPTER 501 - BUY-AMERICAN PREFERENCES

-HEAD-

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

-STATUTE-

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

(except section 47127), 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.

-SOURCE-

(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1300, Sec.

49105; renumbered Sec. 50105 and amended Pub. L. 104-287, Sec.

5(88)(D), (89), Oct. 11, 1996, 110 Stat. 3398.)

-MISC1-

HISTORICAL AND REVISION NOTES

PUB. L. 103-272

--------------------------------------------------------------------

Revised Source (U.S. Code) Source (Statutes at Large)

Section

--------------------------------------------------------------------

49105 49 App.:2226b. Nov. 5, 1990, Pub. L.

101-508, Sec. 9130, 104

Stat. 1388-372; Oct. 31,

1992, Pub. L. 102-581, Sec.

118(a), 106 Stat. 4883.