produce goods, products, and materials in the United States to meet federal procurement needs.”⁵¹

In the next sections, the relevant regulatory obligations and requirements these agencies have promulgated are reviewed.

III. COMPARISONS WITH MADE IN AMERICA LAWS PRECEDING BABA

A. BABA’s Supplementation of Prior Law

BABA supplements prior Made in America laws. In a provision explicitly addressing USDOT, these are specified as follows:

Note that while these Buy America laws are similar, they are not identical, nor are the regulations each modal agency has promulgated thereunder. BABA thus supplements prior laws in different ways for each of these modal agencies.⁵³ Undoubtedly, airports need highways, and these will be built pursuant to the Buy America provisions of title 23 and the FHWA regulations. Airports increasingly have become intermodal, and rail lines to/from airports will be built pursuant to FTA or FRA regulations. Of course, all federally funded infrastructure projects must comply with BABA.

The President’s Executive Order 14005, issued a little more than 2 months after promulgation of the IIJA, requires a biannual report on “the agency’s ongoing implementation of, and compliance with, Made in America Laws.”⁵⁴ It further defines Made in America laws as all “statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement . . . that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States . . . .”⁵⁵ Hence, domestic content requirements specified in pre-BABA legislation remain applicable to airport infrastructure projects.

Legislation promulgated prior to BABA provided that AIP funds could be allocated only if the steel, iron, and manufactured goods used in the project were produced in the United States.⁵⁶ This requirement is reaffirmed and supplemented in BABA with a requirement that no federal financial funds may be allocated for an infrastructure project unless all iron and steel, manufactured products, and construction materials used in the project are produced in the United States.⁵⁷ Infrastructure is defined to include a long list of public works projects, including those under the jurisdiction of USDOT, explicitly including “airports.”⁵⁸

This section compares the specific requirements of previous Buy American legislation with BABA and is graphically depicted in the Appendix attached hereto (see Table 1).

The Buy American Act of 1933 (BAA) established an initial framework that was later amended through Buy America provisions in subsequent transportation grant programs. The 1933 BAA “applied to direct procurements of goods by federal government agencies.” Later Buy America provisions in transportation grant programs “apply to procurements made by recipients of federal grants, including state and local governments and airport authorities.”⁵⁹ Buy America provisions were specified in the Aviation Safety and Capacity Expansion Act of 1990 (ASCE), the American Recovery and Reinvestment Act of 2008 (ARRA), and the Build America, Buy America Act of 2021 (BABA) embedded within the IIJA. Table 1 in the Appendix hereto illustrates how the Buy America provisions have evolved over time as specified in each of these legislative acts.

The Buy America provisions in these succeeding pieces of legislation have generally become more specific and detailed over time. As the most recent legislation, BABA is even more specific and detailed in prescribing Buy America provisions. Because Executive Order 14005 stipulates that agencies must report on implementation of and compliance with all Made in

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⁵¹ Executive Order 14005 § 7, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers (last visited Sep. 15, 2025). “The Hollings Manufacturing Extension Partnership (MEP) program is a national network of centers established by the Omnibus Trade and Competitiveness Act (P.L. 100-418). MEP centers provide custom services to small and medium-sized manufacturers (SMMs) to improve production processes, upgrade technological capabilities, and facilitate product innovation”: https://sgp.fas.org/crs/misc/R44308.pdf (last visited Dec. 13, 2024).

⁵² BABA § 70916(a)(1).

⁵³ Each transportation modal agency has a Buy America website that provides the most recent information concerning how BABA has supplemented previous laws: https://www.fhwa.dot.gov/construction/cqit/buyam_policy_and_guidance.cfm; https://www.transit.dot.gov/buyamerica; https://railroads.dot.gov/legislation-regulations/buy-america/buy-america (last visited July 21, 2025.

⁵⁴ Executive Order 14005 § 12(a), https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers (last visited Sep. 15, 2025).

⁵⁵ Executive Order 14005 § 2(b).

⁵⁶ 49 U.S.C. § 50101(a).

⁵⁷ BABA § 70912(2). Since “construction materials” is a new addition to the Buy America requirements, it is emphasized here.

⁵⁸ BABA § 70912(5)(F).

⁵⁹ Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, at 3.

America laws, it is relevant to discuss how previous legislation has specified Buy America criteria.⁶⁰

B. Unmanufactured Goods

The Buy American Act of 1933 (BAA) provided that “only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States . . . shall be acquired for public use.”⁶¹ The BAA specified the terms “public use,” “public building,” and “public work” shall mean “use by, public building of, and public work of the United States,” as well as its territories.⁶² This would include airports and other airport facilities belonging to, constructed by, or used by the federal government.⁶³ Subsequent Buy America legislation did not include specific references to “unmanufactured goods,”⁶⁴ but BABA explicitly includes construction materials (which can include unmanufactured goods) as an item that must be produced in the United States.

C. Manufactured Goods

The BAA specified that “only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, shall be acquired for public use.”⁶⁵ The BAA did not specify numeric thresholds for what constituted “substantially all” articles, materials, and supplies, but subsequent legislation and executive orders did.⁶⁶

The Aviation Safety and Capacity Expansion Act of 1990 (ASCE) provided that funds authorized to be appropriated or otherwise made available for any project in the AIP shall not be obligated “unless steel and manufactured products used in such project are produced in the United States.”⁶⁷ This legislation was the first time that U.S.-produced steel was specifically added as a requirement in addition to manufactured products for airport and airway projects.⁶⁸

The Buy American provisions in the American Recovery and Reinvestment Act of 2009 (ARRA) specified that “none of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.”⁶⁹ This legislation was the first time that iron was specifically added to steel and manufactured goods that must be produced in the United States for airport and airway projects.⁷⁰

BABA goes even further than previous legislation regarding the production of steel and iron used in infrastructure projects. In the case of iron or steel products, BABA states that all manufacturing processes, from the initial melting stage throughout the application of coatings, must occur in the United States.⁷¹

D. Construction Materials

While the BAA does not specifically mention construction materials, they could be included in the BAA’s provisions for unmanufactured and manufactured goods. Neither ASCE nor ARRA specifically mentioned construction materials. BABA extends Buy American provisions by explicitly stating that all manufacturing processes for construction materials must occur in the United States.⁷² According to BABA, the term construction materials explicitly excludes “cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives.”⁷³ However, as explained later, OMB regulations prescribe that cement may be considered a component of manufactured goods under certain circumstances.

E. Waivers

While the general intent of the original BAA was to ensure that the composition of all unmanufactured and manufactured articles, materials, and supplies originated in the United States, the head of the relevant federal department could issue exceptions based on the following:

• Public interest;
• Nonavailability in quantity and/or quality;
• Substantial domestic content;
• Unreasonable cost; or

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⁶⁰ In cases where federal grant recipients may have specific Buy America compliance questions, the FAA has a Buy American Preference Requirements website that provides updates and guidance to grant recipients: https://www.faa.gov/airports/aip/buy_american (Accessed July 16, 2025).

⁶¹ Pub. L. 72-428, tit. III; Mar. 3, 1933, 47 Stat. 1520.

⁶² Id.

⁶³ Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, at 8.

⁶⁴ “Unmanufactured goods” refer generally to primary products such as minerals, timber, or agricultural commodities.

⁶⁵ Pub. L. 72-428, Tit. III; Mar. 3, 1933, 47 Stat. 1520; 41 U.S.C. § 10a.

⁶⁶ Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, at 9-10.

⁶⁷ Pub. L. 101–508, § 9129, 104 Stat. 1388–371. Nov. 5, 1990.

⁶⁸ Previously, the Surface Transportation Assistance Act of 1982 (1982 STAA) specifically included steel and cement in addition to manufactured products used in transit or highway projects that were required to be of domestic origin. Cement was later deleted (in 1984) from the materials and products covered under the 1982 STAA. Johnson, J.P., TCRP Legal Research Digest 31: Guide to Federal Buy America Requirements—2009 Supplement (2010), https://doi.org/10.17226/22966, at 5.

⁶⁹ Pub. L. 111–5, § 1605, 123 Stat. 303. Feb. 17, 2009.

⁷⁰ Previously, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) had added iron and iron products to the Buy America requirements for transit and highway projects. Johnson, J.P., TCRP Legal Research Digest 31: Guide to Federal Buy America Requirements—2009 Supplement (2010), https://doi.org/10.17226/22966, at 7.

⁷¹ BABA § 70912(6)(A).

⁷² BABA § 70912(6)(C).

⁷³ BABA § 70917(c).

• Insignificance (for micro-purchases⁷⁴).⁷⁵

The BAA did not specify numeric thresholds or guidance for these exceptions or other terms mentioned in the statute. An important clarification of the BAA came by way of Executive Order 10582 issued by President Dwight Eisenhower in 1954.⁷⁶ A specific threshold for defining whether materials were of foreign origin was set at 50% or more of the cost of all products used in such materials.⁷⁷ This clarification substantially weakened application of the BAA by allowing bids with up to 50% of foreign components to be deemed of domestic origin.⁷⁸ To determine whether the cost of domestic goods was unreasonable, a surcharge of either 6% or 10%⁷⁹ would be added to the competing bid that contained materials of foreign origin.⁸⁰ If the cost of the domestic bid was still higher after the surcharge was applied, then a waiver could be granted on the basis of unreasonable cost.⁸¹

The 1990 ASCE specified waivers of the Buy American requirements related to airport projects in more detail. Waivers were available when the Secretary of Transportation determined that

The 60% threshold for domestic components and subcomponents was more stringent than that specified in the 1954 executive order,⁸³ as is the 25% higher cost threshold.⁸⁴ It was further specified that labor costs involved in final assembly should not be included in the calculation of components” costs.⁸⁵

The waivers specified in ARRA are similar to those in the ASCE pertaining to inconsistency with the public interest, insufficient quantity and quality, and unreasonable cost. ARRA does not explicitly mention the 60% Substantial Domestic Manufacture threshold for the cost of all components, though ASCE included it.⁸⁶

The BABA waivers contain some differences from waivers in previous legislation. The public interest waiver includes a review

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⁷⁴ Micro-purchases are small financial expenditures that are exempted from Buy America requirements because of their relative insignificance. The micro-purchase thresholds are updated and specified by the relevant federal department.

⁷⁵ Pub. L. 72-428, Tit. III; Mar. 3, 1933, 47 Stat. 1520.

⁷⁶ Executive Order 10582, 19 Fed. Reg. 8723 (Dec. 17, 1954), http://www.archives.gov/federal-register/codification/executive-order/10582.html (last visited Dec. 20, 2024).

⁷⁷ Id. § 2(a).

⁷⁸ Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, p. 9.

⁷⁹ A 6% surcharge would be applied if import duties and costs incurred after arrival in the United States were already included in the bid. A 10% surcharge would be applied if such duties and costs were excluded from the bid, or if the bid or offered price of materials of foreign origin was less than $25,000. A 12% surcharge would be applied if the low domestic bidder qualified as a small business.

⁸⁰ Executive Order 10582 supra §§ 2(b), 2(c)(1), 2(c)(2).

⁸¹ The Executive Order also clarified circumstances where inconsistency with the public interest might apply:

• Where a “fair proportion” of the domestic bid is attributable to small business concerns;
• Where the domestic bidder “undertakes to produce substantially all of such materials in areas of substantial unemployment;” or
• Where rejection of foreign goods “is necessary to protect essential national-security interests.”

Id. §§ 3(b)(c) and (d); Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, p. 10.
The public interest exception to the BAA was later expanded as part of trade agreements. The Trade Agreements Act of 1979 specified that BAA requirements could be waived by the President of the United States to permit federal procurement of foreign goods from designated trading partners. Trade Agreements Act of 1979, Pub. L. 96-39, §§ 301, 303, 93 Stat. 144 (1979); Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, p. 10.
The FAA, however, was specifically excluded from the list of entities covered by the World Trade Organization (WTO) Agreement on Government Procurement because domestic preferences to American-manufactured air traffic control equipment were not extended by other signatories. U.S. Department of Transportation, Office of the Inspector General. Gaps in Guidance, Training, and Oversight Impede FAA’s Ability to Comply with Buy American Laws. Federal Aviation Administration Report No. ZA2021026, June 2, 2021, p. 4. Moreover, the WTO Agreement on Government Procurement and other international trading agreements such as the North American Free Trade Agreement expressly exempt grants from coverage, although acquisitions can be treated as domestic purchases from designated trading partners. NCHRP Legal Research Digest 80: Buy America Requirements for Federal Highway Projects (2020), https://doi.org/10.17226/25799, p. 44.

⁸² Omnibus Budget Reconciliation Act of 1990; Pub. L. 101-508, 104 Stat. 1388 (enacted November 5, 1990).

⁸³ The Surface Transportation and Uniform Relocation Assistance Act of 1987 (1987 STURAA) increased the domestic content requirement for buses and other rolling stock from 50% to 55% as of October 1, 1989, and to 60% as of October 1, 1991. Johnson, J.P., TCRP Legal Research Digest 31: Guide to Federal Buy America Requirements—2009 Supplement (2010), https://doi.org/10.17226/22966, at 6.

⁸⁴ The project cost differential waiver for transit projects other than rolling stock was increased to 25% in the 1982 STURAA. This 25% project cost differential waiver was later also applied to transit rolling stock in the 1987 STURAA. Johnson, J.P., TCRP Legal Research Digest 31: Guide to Federal Buy America Requirements—2009 Supplement (2010), https://doi.org/10.17226/22966, at 5, 6.

⁸⁵ Pub. L. 101-508, § 9129, 104 Stat. 1388–372. Nov. 5, 1990. Another new item was prohibition of the fraudulent use of “Made in America” labels, which permitted the Secretary of Transportation to declare such offenders ineligible to receive federal grants for a period of 3 to 5 years. Id.

⁸⁶ Pub. L. 111–5, § 1605, 123 Stat. 303. Feb. 17, 2009.

by the OMB’s MIAO. The nonavailability waiver is for “types of iron, steel, manufactured products, or construction materials not produced in the US in sufficient and reasonably available quantities OR [emphasis added] of a satisfactory quality.”⁸⁷ Previous legislation required a lack of both quantity AND satisfactory quality to be eligible for a waiver. For substantial domestic content, according to BABA, “produced in the United States” means that

Because BABA prescribes that earlier domestic preference legislation applies, the threshold for substantial domestic content remains 60% for airports.⁸⁹

The other item pertaining to waivers is disclosure and publication. The BAA stated that if an exception is granted, the head of the department must make a public record of the findings that justified the exception.⁹⁰ ARRA specified that “the head of the department or agency shall publish in the Federal Register a detailed written justification as to why the provision is being waived.”⁹¹ The FAA Reauthorization Act of 2018 specified that “the Secretary of Transportation shall submit a report to Congress on the dollar amount of acquisitions subject to the Buy American Act made by the agency from entities that manufacture the articles, materials, or supplies outside of the United States” above the micro-purchase level at the end of such fiscal year.⁹²

As noted previously, BABA extends notification regarding waivers by requiring the head of the federal agency to make publicly available on the OMB and agency websites a detailed written explanation for the proposed waiver and to allow for public comment on the proposed waiver for a period of at least 15 days.⁹³ For review of general applicability waivers, the justification for the waiver must be published in the Federal Register and made available for public comment for at least 30 days.⁹⁴

F. International Trade Obligations and Restrictions

Concerns over reciprocal access to foreign markets prompted the inclusion of stipulations concerning fairness in international trade. The Airport and Airway Safety and Capacity Expansion Act of 1987 (AASCEA) allowed reciprocal denial of “funds for projects using products or services of foreign countries that deny fair market opportunities.”⁹⁵ The inclusion of this section was prompted by concerns over the access of American firms to compete for foreign airport construction projects.⁹⁶ Accordingly, this Act specified that no federal funds may be used for any project that uses any product or service of a foreign country which the United States Trade Representative has determined that “(A) denies fair and equitable market opportunities for products and suppliers of the United States in procurement, or (B) denies fair and equitable market opportunities for United States bidders.”⁹⁷

The 1990 ASCE included a restriction that

Both ARRA and BABA require that the application of Buy America(n) preferences be consistent with U.S. obligations under international agreements.⁹⁹

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⁸⁷ BABA § 70914(b)(2).

⁸⁸ BABA § 70912(6)(B)(ii).

⁸⁹ See BABA § 70916(a),70923(f).

⁹⁰ Pub. L. 72-428, Tit. III, Sec. 3(b)

⁹¹ Pub. L. 111–5, § 1605(c), 123 Stat. 303. Feb. 17, 2009. Pub. L. 108-176. Dec. 12, 2003. Previously, the Vision 100—Century of Aviation Reauthorization Act of 2003 contained an amendment that required the Secretary of Transportation to report on AIP Buy American waivers, but only over the previous 2 years (2002-2003). The Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users [SAFETEA-LU] of 2005 required the Secretary of Transportation to issue a detailed justification for public interest waivers applied in transit and highway projects and to publish these waivers in the Federal Register. Jaye Pershing Johnson, Guide to Federal Buy America Requirements—2009 Supplement 7 (Transit Cooperative Research Program, Legal Research Digest 31, 2010).

⁹² Pub. L. 115-254, § 544(5)(A)(i)(ii), 132 Stat. 3374. October 5, 2018. This reporting requirement pertains to the dollar value of U.S. versus foreign purchases, while the reporting requirement in ARRA pertained specifically to waivers. U.S. Department of Transportation, Office of Inspector General. 2021. Gaps in Guidance, Training, and Oversight Impede FAA’s Ability to Comply with Buy American Laws. FAA Report No. ZA2021026, June 2, 2021, p. 4.

⁹³ BABA § 70914(c)(1)(2).

⁹⁴ BABA § 70914(d)(2)(A)(i)(ii).

⁹⁵ Airport and Airway Safety and Capacity Expansion Act of 1987, Pub. L. 100-223, 101 Stat. 1505 (Dec. 30, 1987). § 115.

⁹⁶ Wyatt, T. R., ACRP Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (2013), https://doi.org/10.17226/22635, p. 32.

⁹⁷ Airport and Airway Safety and Capacity Expansion Act of 1987, Pub. L. 100-223, 101 Stat. 1506 (Dec. 30, 1987). § 115, amending the Airport and Airway Improvement Act of 1982 § 533(b)(A)(B).

⁹⁸ Pub. L. 101–508, § 9131, 104 Stat. 1388–372. Nov. 5, 1990.

⁹⁹ Pub. L. 111–5, § 1605, 123 Stat. 303. Feb. 17, 2009; BABA § 70914(e). BABA explicitly states that the Buy America requirements “shall be applied in a manner consistent with United States obligations under international agreements.” BABA § 70914(e). The statute does not elaborate as to what those international obligations are. A full list of international trade obligations is beyond the scope of this study, but might, for example, prohibit purchases from boycotted states (e.g., Russia and North Korea). Nevertheless, it is important that the reader understand that this is an explicit requirement of the statute.
As of September 24, 2024, “[t]he U.S. Trade Representative has determined not to list any countries as denying fair market opportunities for U.S. products, suppliers, or bidders in foreign government-funded