Notice2024-26832
Notice of Extension of Partial Buy America Waiver for Vans and Minivans
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Published
November 18, 2024
Issuing agencies
Transportation DepartmentFederal Transit Administration
Abstract
Following consideration of comments, and because the Federal Transit Administration (FTA) has been unable to identify any manufacturer of non-Americans with Disabilities Act (ADA)-accessible vans and minivans that fully complies with Buy America, FTA is extending its partial, time-limited, general nonavailability waiver from the requirements of Buy America for a period of five years, or upon publication of a recission notice if FTA determines that a fully Buy America-compliant vehicle has become available, whichever occurs first. The waiver terms are described in this notice.
Full Text
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<title>Federal Register, Volume 89 Issue 222 (Monday, November 18, 2024)</title>
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[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Notices]
[Pages 90824-90826]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-26832]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2024-0007]
Notice of Extension of Partial Buy America Waiver for Vans and
Minivans
AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).
ACTION: Notice of extension of Buy America waiver.
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SUMMARY: Following consideration of comments, and because the Federal
Transit Administration (FTA) has been unable to identify any
manufacturer of non-Americans with Disabilities Act (ADA)-accessible
vans and minivans that fully complies with Buy America, FTA is
extending its partial, time-limited, general nonavailability waiver
from the requirements of Buy America for a period of five years, or
upon publication of a recission notice if FTA determines that a fully
Buy America-compliant vehicle has become available, whichever occurs
first. The waiver terms are described in this notice.
DATES: The waiver extension is applicable on November 18, 2024.
FOR FURTHER INFORMATION CONTACT: Jason Luebbers, FTA Attorney-Advisor,
at (202) 366-8864 or <a href="/cdn-cgi/l/email-protection#2842495b474606445d4d4a4a4d5a5b684c475c064f475e"><span class="__cf_email__" data-cfemail="e38982908c8dcd8f96868181869190a3878c97cd848c95">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This notice grants an extension of FTA's
October 25, 2022, partial general nonavailability waiver for mass-
produced, unmodified vans and minivans (87 FR 64534). The waiver
extension will expire after five years, or upon publication of a
recission notice if FTA determines that a fully Buy America-compliant
vehicle has become available, whichever occurs first.
Background
On November 15, 2021, President Biden signed into law the Build
America, Buy America Act (BABA), enacted as title IX of the
Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, div. G,
sections 70901-70927). BABA requires Federal agencies periodically to
review existing general applicability waivers of Buy America
requirements by publishing in the Federal Register a notice that: (i)
describes the justification for a general applicability waiver and (ii)
requests public comments for a period of not less than 30 days on the
continued need for the general applicability waiver. BABA section
70914(d).
FTA is issuing this waiver extension following its review of
comments received in response to its Notice of FTA's Review of Its
Partial Waiver of Buy America Requirements for Vans and Minivans and
Request for Comment, published in the Federal Register on August 22,
2024 (89 FR 68027).
Partial General Buy America Waiver for Vans and Minivans
Under FTA's Buy America statute (49 U.S.C. 5323(j)), 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
[[Page 90825]]
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).
On October 25, 2022, following multiple individual requests for a
Buy America waiver for non-ADA-accessible vans or minivans that can be
used in federally funded vanpool programs, FTA issued a partial, time-
limited, general nonavailability waiver from the Buy America
requirements for mass-produced, unmodified, non-ADA-accessible vans and
minivans with seating capacity for at least six adults, not including
the driver (87 FR 64534). FTA issued a partial waiver to maximize the
use of materials produced in the United States, consistent with
Executive Order 14005, Ensuring the Future Is Made in All of America by
All of America's Workers (86 FR 7475). In lieu of applying the general
Buy America standards for rolling stock, the 2022 waiver required the
following:
(1) Final assembly must occur in the United States, as reported to
the National Traffic Safety Administration (NHTSA) under the American
Automobile Labeling Act (AALA); and
(2) The country of origin of the engine or motor must be the United
States, as reported to NHTSA under the AALA. See 49 U.S.C. 32304 and 49
CFR part 583.
FTA also limited its 2022 waiver to expire automatically after two
years.
In its August 22, 2024, notice, FTA requested comments from all
interested parties regarding whether FTA should extend the waiver,
modify the waiver, or allow it to lapse. FTA also asked six questions
related to the waiver, and requested that commenters, in answering the
questions, explain the likely impacts of the suggested course of action
for FTA on administering and delivering FTA-funded projects and on
supporting domestic manufacturing and jobs. The questions are reprinted
below.
In accordance with subsection 70916(c) of the Build America, Buy
America Act (BABA) (Title IX of the Infrastructure Investment and Jobs
Act, Pub. L. 117-58), FTA consulted with the National Institute of
Standards and Technology's Hollings Manufacturing Extension Partnership
(MEP) concerning a possible waiver extension, which determined that no
domestic entity currently manufactures the subject vans and minivans in
compliance with Buy America requirements.
General Considerations
FTA's August 22, 2024, notice posed the following questions to the
public concerning a possible waiver extension.
1. Are there any unmodified non-ADA-accessible vans or minivans
with seating capacity for at least six adults, not including the
driver, for which the cost of components and subcomponents produced in
the United States is more than 70 percent of the cost of all
components, and final assembly of the vehicle occurs in the United
States?
a. If so, which vehicles?
b. If so, in what quantity are they available?
2. Do the market conditions that led to FTA's decision to issue the
partial van and minivan waiver still exist and, if so, do they warrant
continuing the waiver?
3. What actions could FTA take, if any, to promote the domestic
production of Buy America-compliant vans and minivans?
4. Is there a publicly available source better suited than AALA
reports (<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>) to determine the domestic content and country of final
assembly for vans and minivans? If so, please specify the data source
and explain why it is preferred.
Considerations for Modifying the Waiver
5. If FTA were to modify the van and minivan waiver, what would be
the likely impact on administering and delivering Federal transit
projects? In what ways could modifications to the waiver promote or
hinder the effective and efficient delivery of Federal transit projects
across the United States? As examples, commenters may wish to consider
the following modifications to the van and minivan waiver, specifying
the likely impact of each and explaining why that impact is likely to
occur:
a. In addition to engines and motors, require U.S.-manufactured
transmissions as reported to NHTSA under the AALA.
b. Add a requirement that a vehicle contain some minimum percentage
of ``Content US/Canada,'' as defined by and reported to NHTSA under the
AALA.
6. FTA is also interested in any other proposals to modify the
waiver not listed here that would meet the goals of promoting the
efficient delivery of Federal transit projects and supporting domestic
manufacturing and jobs. For each proposal, please explain how the
waiver modification proposed achieves both goals and provide supporting
information or documentation, where applicable.
Response to Comments
FTA received 51 comments from 56 different commenters, including
transit operators, associations, state departments of transportation,
metropolitan planning organizations, and the general public. All but
one comment supported extending the waiver.
The comments in favor of an extension tended to be broadly
supportive of the waiver and did not for the most part respond to
specific questions FTA posed to the public. The supportive comments
concurred that no known manufacturer currently meets all of FTA's Buy
America requirements. Comments described the important role of vanpools
to combat climate change, lower traffic congestion, and support
commuters and equitable service, including service to the elderly,
persons with disabilities that do not require ADA accessible vehicles,
and rural communities for which full-sized buses are inappropriate.
Comments from vanpool operators described their efforts to update or
expand their aging fleets, and said they cannot succeed without an
extension of the waiver. The supportive comments affirmed the necessity
of extending the waiver to allow transit operators to continue
purchasing vans and minivans using FTA grant funds.
Comment Opposed To Extending the Waiver
The single comment opposed to extending the waiver stated: ``Buy
America can rely on used van and minivan parts in junkyards across
America that are being totally ignored''. The comment did not provide
any further detail about the junkyard suggestion. While junk or salvage
yards may be excellent sources for vehicle parts in some situations,
FTA considers the junkyard option an impractical alternative for
transit operators, who in almost all cases require new vehicles for
their fleet purchases.
Requests To Lengthen the Waiver Period
When FTA approved the 2022 waiver, it set the waiver to expire
automatically after two years. Twenty-eight comments requested
extending the waiver for a period longer than two-years. Five comments
suggested a five-year extension. One of these comments said five years
is an appropriate length because the relatively small percentage of
vans and minivans purchased using FTA funds means the availability of
Buy America-compliant vans or minivans is unlikely to change in the
foreseeable future, and because a five-year review
[[Page 90826]]
period is what BABA specifies for general waivers. BABA Sec.
70914(d)(1) (``An existing general applicability waiver or a general
applicability waiver . . . shall be reviewed every 5 years after the
date on which the waiver is issued''). One comment suggested that the
waiver should be of indefinite duration, pending the availability of a
Buy America-compliant product.
FTA agrees with the comments that suggested a five-year extension.
An expiration after five years accords with BABA's requirement that
general waivers be reviewed quinquennially, and the Made in America
Office's national policy that general waivers have expiration dates.
FTA also agrees that the availability of Buy America-compliant vans or
minivans is unlikely to change in the foreseeable future. Therefore, a
waiver of a shorter duration would add uncertainty and administrative
burdens by requiring more frequent extensions, without generating any
public benefit. FTA can rescind the waiver at any time if a Buy
America-compliant van or minivan becomes available before the end of
the five years.
Support for Extending the Domestic Requirements of the 2022 Partial
Waiver
To maximize domestic content, the 2022 waiver required U.S.
manufactured engines and final assembly. FTA sought comment from the
public as to whether it should revise these requirements in a waiver
extension.
Twenty-seven comments recommended extending the waiver with the
same domestic manufacturing requirements as the 2022 waiver. Comments
generally supported the current waiver as maximizing domestic content
among van and minivan options while at the same time allowing transit
operators to replace or expand their fleets using FTA funds.
Three comments asserted the requirements of the 2022 waiver are too
restrictive. One of these comments said there is a shortage of vehicles
that comply with the 2022 waiver, and this has led to difficulty
expanding and updating vanpool fleets. However, this comment did not
recommend any particular change to the waiver, and did not provide any
specific data regarding how the requirements of the 2022 waiver have
impaired the commenter's ability to replace or add vehicles.
One comment suggested relaxing the restrictions in the 2022 waiver
to allow manufacturing and assembly anywhere in North America. This
comment suggested doing so would make more hybrid and electric vehicles
available, but it did not identify particular models to which it was
referring.
Another comment requested that FTA eliminate the requirement that
the vehicle's engine be manufactured in the United States. This comment
stated the engine requirement excludes numerous vehicles that otherwise
have high levels of domestic content according to the AALA reports.
In response to these comments that requested that FTA relax the
requirements of the 2022 waiver, FTA notes the following:
Notwithstanding that relaxation of the waiver's requirements would
result in a greater selection of vehicles to purchase, none of the
commenters said they were unable to comply with the 2022 waiver's
requirements, or that they have been unable to obtain the type of
vehicles they require under the 2022 waiver. With regard to the comment
that the engine requirement of the 2022 waiver excludes vehicles with
high domestic content reported under the AALA, the AALA reports show a
value for combined U.S. and Canadian content, not U.S. content by
itself. Absent more specific information about the U.S. content in
these excluded vehicles, it is difficult for FTA to weigh the relative
benefits to U.S. industry of eliminating the engine requirement, and so
FTA declines to revise the waiver in response to this comment.
FTA agrees with the majority of comments that request maintaining
the requirements of the 2022 waiver.
Other Comments
Some comments raised issues that were not germane to the pending
waiver proposal. Two comments complained in general terms about the
cost of complying with Buy America. One comment claimed Buy America
causes $30,000 to $40,000 of ``add-ons'' to the Ram ProMaster in order
for the vehicle to achieve 70% domestic content by cost, and that this
is pushing vehicles beyond affordability. These comments are beyond the
scope of the present action. FTA is not proposing revisions to Buy
America requirements generally; it is only considering a limited,
partial waiver of Buy America requirements to allow the purchase of
certain vans and minivans.
Two comments complained that there exist vehicles with high
domestic content, that are produced in the United States, but which the
commenters cannot buy because of ``foreign ownership'' or ``because
they are Japanese or Korean owned companies''. These comments appear to
indicate a misunderstanding of Buy America and the 2022 waiver. Buy
America's standards for rolling stock require a minimum percentage of
U.S. components and subcomponents by cost and U.S. final assembly.
Neither Buy America nor the 2022 waiver excludes vehicles based on the
countries where their global brands are headquartered or historically
originated.\1\
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\1\ While this is true of Buy America requirements, there are
other laws that restrict vehicle purchases based on the country
where the vehicle manufacturer is headquartered or has corporate
relations. See FTA's guidance regarding the National Defense
Authorization Act of 2020: <a href="https://www.transit.dot.gov/funding/procurement/frequently-asked-questions-regarding-section-7613-national-defense">https://www.transit.dot.gov/funding/procurement/frequently-asked-questions-regarding-section-7613-national-defense</a>.
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Finding on Waiver
For the reasons stated in FTA's August 22, 2024, notice, and based
on comments received from the public, FTA is extending the October 25,
2022, waiver for vans and minivans.
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
will require:
(1) Final assembly must be in the United States, as reported to
NHTSA under the AALA; and
(2) The country of origin of the engine (or electric vehicle motor)
must be the United States, as reported to NHTSA under the AALA.
The waiver is available to all FTA grant recipients. FTA recipients
do not need to submit individual applications for nonavailability
waivers for these vehicles. The waiver applies to contracts recipients
award during the waiver period. This waiver expires five years after
the effective date of this notice as published in the Federal Register.
FTA will review this waiver twice during the waiver period to assess
whether it remains necessary. Based on the results of that review, FTA
will take such action as deemed appropriate, including but not limited
to rescinding, or narrowing the scope or duration of the waiver.
Veronica Vanterpool,
Deputy Administrator.
[FR Doc. 2024-26832 Filed 11-15-24; 8:45 am]
BILLING CODE 4910-57-P
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