Notice2022-15356
Notice of Proposed Buy America Waiver and Request for Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 19, 2022
Issuing agencies
Transportation DepartmentFederal Transit Administration
Abstract
The Federal Transit Administration (FTA) has received multiple individual requests for a Buy America waiver for non-ADA accessible passenger vans and minivans that can be used in vanpool programs, based on the nonavailability of Buy America-compliant vehicles. FTA is proposing a partial general nonavailability waiver of limited duration for mass-produced, unmodified non-ADA accessible vans and minivans. Under FTA's proposal, in lieu of applying Buy America's rolling stock standard to these vans and minivans, FTA would require the vans and minivans to have their place of final assembly and engine country of origin in the United States as reported under the American Automobile Labeling Act. FTA proposes that this partial waiver will expire after two years, or when a compliant vehicle becomes available, whichever is first. FTA seeks public and industry comment on whether FTA should grant the waiver as proposed, or in a modified form.
Full Text
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<title>Federal Register, Volume 87 Issue 137 (Tuesday, July 19, 2022)</title>
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[Federal Register Volume 87, Number 137 (Tuesday, July 19, 2022)]
[Notices]
[Pages 43101-43102]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-15356]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2022-0013]
Notice of Proposed Buy America Waiver and Request for Comment
AGENCY: Federal Transit Administration, Department of Transpiration
(DOT).
ACTION: Notice; request for comment.
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SUMMARY: The Federal Transit Administration (FTA) has received multiple
individual requests for a Buy America waiver for non-ADA accessible
passenger vans and minivans that can be used in vanpool programs, based
on the nonavailability of Buy America-compliant vehicles. FTA is
proposing a partial general nonavailability waiver of limited duration
for mass-produced, unmodified non-ADA accessible vans and minivans.
Under FTA's proposal, in lieu of applying Buy America's rolling stock
standard to these vans and minivans, FTA would require the vans and
minivans to have their place of final assembly and engine country of
origin in the United States as reported under the American Automobile
Labeling Act. FTA proposes that this partial waiver will expire after
two years, or when a compliant vehicle becomes available, whichever is
first. FTA seeks public and industry comment on whether FTA should
grant the waiver as proposed, or in a modified form.
DATES: Comments must be received by August 3, 2022. Late-filed comments
will be considered only to the extent practicable.
ADDRESSES: Please submit all comments electronically to the Federal
eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the
instructions for submitting comments.
Instructions: All submissions must refer to the Federal Transit
Administration and the docket number in this notice (FTA-2022-0013).
Note that all submissions received, including any personal information
provided, will be posted without change and will be available to the
public on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may review DOT's complete
Privacy Act Statement in the Federal Register published April 11, 2000
(65 FR 19477), or at <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
FOR FURTHER INFORMATION CONTACT: Jason Luebbers, FTA Attorney-Advisor,
at (202) 366-8864 or <a href="/cdn-cgi/l/email-protection#92d8f3e1fdfcbcdee7f7f0f0f7e0e1d2f6fde6bcf5fde4"><span class="__cf_email__" data-cfemail="6923081a060747251c0c0b0b0c1b1a290d061d470e061f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The purpose of this notice is to seek public
comment on whether FTA should grant a partial Buy America waiver of
limited duration for the procurement of mass-produced, unmodified
(complete and fully assembled as provided by the original equipment
manufacturer) non-ADA accessible passenger vans and minivans.
Background
Under FTA's Buy America statute, FTA may obligate funds for a
project to procure rolling stock only if the cost of components and
subcomponents produced in the United States is more than 70 percent of
the cost of all components of the rolling stock, and final assembly of
the rolling stock occurs in the United States. 49 U.S.C. 5323(j)(2)(C).
A manufacturer of rolling stock must submit to pre-award and post-
delivery audits and independent inspections to verify its compliance
with Buy America. 49 U.S.C. 5323(m).
FTA may waive Buy America requirements for a product if, among
other reasons, a compliant version of the product is not produced in a
sufficient and reasonably available amount or is not of a satisfactory
quality. 49 U.S.C. 5323(j)(2)(B). FTA cannot deny a request for a
nonavailability waiver unless it can provide the waiver applicant with
a written certification that: the item is produced in the United States
in a sufficient and reasonably available amount; the item produced in
the United States is of a satisfactory quality; and includes a list of
known manufacturers in the United States from which the item can be
obtained. 49 U.S.C. 5323(j)(6).
On October 20, 2016, FTA granted a general public interest waiver
for mass-produced, unmodified non-ADA-accessible vans and minivans,
only from its domestic content requirement, for three years or until a
compliant manufacturer came forward, whichever came first. (<a href="https://www.govinfo.gov/content/pkg/FR-2016-10-20/pdf/2016-">https://www.govinfo.gov/content/pkg/FR-2016-10-20/pdf/2016-</a> 25370.pdf). At that
time FTA had identified some models of van or minivan for which final
assembly occurred in the United States, but could not identify a van or
minivan that also satisfied the domestic content requirement. FTA,
therefore, temporarily waived the domestic content requirement, but
continued to require final assembly in the United States for mass-
produced, unmodified non-ADA accessible vans and minivans. The waiver
expired on September 30, 2019. Since the waiver's expiration, FTA has
received requests to reissue a general public interest waiver for non-
ADA-accessible vans and minivans from grant recipients, the American
Public Transit Association (APTA), and turnkey vanpool service provider
Enterprise.
In 2021, FTA received three applications for waivers for non-ADA
accessible vans and minivans to be used as vanpool vehicles, based on
the nonavailability of compliant vehicles. A vanpool vehicle is a
vehicle with seating capacity for at least six adults not including the
driver. 49 U.S.C. 5323(i)(2)(C). The three applicants are Coast Transit
Authority of Biloxi, Mississippi; the Metropolitan Transportation
Commission of San Francisco, California; and the Ann Arbor Area
Transportation Authority in Michigan. All three applications are to
support procurements of service contracts with ``Commute with
Enterprise'' to carry out vanpool programs of between 40 and 250
vehicles.
Today, final assembly for a number of mass-produced, unmodified
non-ADA accessible van and minivan models occurs in the United States.
FTA recipients, however, cannot verify the domestic content of such
vehicles because manufacturers are unwilling to sign the required Buy
America certification regarding minimum domestic content or submit to
FTA's pre-award and post-delivery audit requirements. Reasons that some
of these manufacturers have provided to
[[Page 43102]]
FTA for their unwillingness to comply with these requirement include:
(1) FTA-funded procurements do not generate a large percentage of
overall sales of such vehicles, and therefore, their distribution chain
is not set up for compliance with FTA Buy America requirements; and (2)
it is burdensome to determine the components and subcomponents and
their origin for Buy America audit purposes, and there are concerns
regarding confidentiality of component pricing in audit reporting.
FTA, therefore, currently is unable to identify a model that
complies with its Buy America's 70- percent domestic content
requirement. FTA recipients and their contractors use these vehicles to
operate vanpool service. Without a waiver, recipients could not procure
these vehicles with FTA funds, which may result in such consequences as
the operation of vehicles beyond their useful life; procurement of
larger Buy America compliant vehicles that are more expensive and have
less desirable access/egress characteristics compared to minivans; or
termination of vanpool programs or failure to form new vanpool service,
which could have climate change and equity impacts because vanpools
provide an important transportation alternative to private passenger
vehicles both in large cities and rural areas, and service to the
elderly and disabled who do not need an ADA-accessible van.
Proposed Waiver
Under the American Automobile Labeling Act (AALA), manufacturers of
mass-produced passenger motor vehicles for sale in the United States
must report to the National Highway Traffic Safety Administration
(NHTSA), by carline and by model year, information about each vehicle's
place of assembly and the country of origin of its engine and
transmission. See, 49 U.S.C. 32304 and 49 CFR part 583. This
information is available on NHTSA's website at <a href="https://www.nhtsa.gov/part-583-american-automobile-labeling-act-reports">https://www.nhtsa.gov/part-583-american-automobile-labeling-act-reports</a>.
In response to the three individual applications for
nonavailability waivers of non-ADA accessible vans and minivans, FTA
proposes the following partial general nonavailability waiver for mass-
produced, unmodified non-ADA accessible vans and minivans with seating
capacity for at least six adults not including the driver. In lieu of
applying the Buy America standards for rolling stock, FTA would
require:
(1) Final assembly must be in the United States, as reported to
NHTSA under the AALA;
(2) The country of origin of the engine, or (in the case of
electric vehicles) motor must be the United States, as reported to
NHTSA under the AALA;
(3) The waiver is available to all grant recipients;
(4) The waiver would expire two years from issuance, or upon a
fully Buy America--compliant van or minivan becoming available,
whichever occurs first.
FTA is proposing to require that engines/motors be of United States
origin, as reported under the AALA, as an easily verifiable way to
maximize domestic content in vans and minivans absent a fully compliant
vehicle. Manufacturers already report this information, and the
information is readily available to the public, thus limiting burdens
for manufacturers and procuring entities. For the duration of this
partial general nonavailability waiver, FTA recipients would not have
to submit individual applications for nonavailability waivers for mass-
produced, unmodified non-ADA accessible vans and minivans.
FTA is not proposing to require that transmissions must be of
United States origin, so that the procurement of hybrid vans or
minivans with transmissions manufactured outside the United States
would be eligible for FTA funding, and because electric vehicles do not
have transmissions. The availability of hybrid and electric vehicles
for use in federally funded vanpool service will contribute to the
reduction of greenhouse gas emissions and environmental justice. FTA
could revise this proposed waiver to require transmissions for hybrid
vehicles be of United States origin if comments or later changes in
market conditions demonstrate hybrid vans and minivans are available
with transmissions made in the United States.
Request for Comment
This notice satisfies FTA's requirement to publish any proposed Buy
America waiver in the Federal Register and provide the public with a
reasonable period of time for notice and comment. 49 U.S.C. 5323(j)(3).
FTA seeks public and industry comment from all interested parties. In
particular, FTA seeks comment regarding whether the waiver should be
approved, and, if so, whether it should be modified from FTA's proposal
and why. Relevant information and comments will help FTA understand
completely the facts surrounding the waiver requests and FTA's
proposal.
Nuria I. Fernandez,
Administrator.
[FR Doc. 2022-15356 Filed 7-18-22; 8:45 am]
BILLING CODE 4910-57-P
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