Buy America Requirements
Number 50 FR 2289 01-16-85
50 FR 2289
DEPARTMENT OF TRANSPORTATION
Urban Mass Transportation Administration
AGENCY: Urban Mass Transportation Administration, DOT.
49 CFR Part 661
Buy America Requirements
50 FR 2289
January 16, 1985
ACTION: Final rule.
SUMMARY: This final rule revises the existing Urban Mass Transportation Administration Buy America regulation to implement the provision mandated by section 10 of Pub. L. 98-229, (98 Stat. 55), enacted on March 9, 1984. Section 10 amends section 165(a) of the Surface Transportation Assistance Act of 1982 (STAA of 1982) by striking "cement" from the materials and products that are covered under section 165. In this document, UMTA is revising its "Buy America" regulations to delete "cement" from their applicability, and to specify the contracts to which the change applies.
EFFECTIVE DATE: This final rule became effective on March 9, 1984.
FOR FURTHER INFORMATION CONTACT: Edward J. Gill, Jr., Office of the Chief Counsel, Room 9228, 400 Seventh Street SW, Washington, D.C. 20590, (202) 426-4063.
SUPPLEMENTARY INFORMATION: On March 9, 1984, the President signed into law an Act (Pub. L. 98-229) authorizing apportionment of certain funds for construction of Interstate Highways. Section 10 of this Act also amended the Surface Transportation Assistance Act of 1982 (STAA) by deleting cement from coverage under section 165 of the STAA (the "Buy America" provision). Section 165, as signed into law on January 6, 1983, provides that Urban Mass Transportation funds cannot be obligated for grantee projects unless all steel, cement and manufactured products used in such projects are produced in the United States. By enacting section 10, Congress clearly indicated that the domestic preference requirements of Section 165 should not be applied to the procurement of cement and cement products in UMTA grantee third party contracts utilizing federal funds. The UMTA regulations are being amended to delete the references to cement in § 661.5, and to revise § 661.1 to indicate that the use of foreign cement is permitted in projects in which the grantee third-party contract has been entered into on or after March 9, 1984. The statutory and regulatory changes should not be construed to permit grantees to modify third-party contracts for cement or cement products entered into prior to March 9, 1984.
UMTA recognizes that there may be some questions which arise concerning bid solicitations documents which were issued prior to March 9, 1984, which contain language indicating that the Buy America requirements apply to cement. There have been very few questions to date since most grantees were able to amend their bid solicitation documents to reflect the statutory change. Any questions that have arisen have been handled by UMTA on a case by case basis, with the specific circumstances of the contract in question being taken into consideration. It is anticipated that very few questions remain on this issue, but UMTA intends to continue to respond on a case by case basis. Under the Administrative Procedure Act, 5 U.S.C. 553(d), publication of a rule must normally take place 30 days before the rule's effective date. However, exceptions to this normal requirement are permissible in the case of a substantive rule which the agency finds for good cause must be made effective less than 30 days after publication. Since the statutory provision which governs this regulatory change became effective on March 9, 1984, it has been determined that circumstances warrant the issuance of a final rule with a retroactive effective date so as to immediately implement the statutory provision. Notice and comment are unnecessary in this case since, under 5 U.S.C. 553(b)(B), the Agency finds that notice and comment would be contrary to the public interest because the regulatory change merely tracks a statutory change which reduces a burden, and the Agency is bound by the new statutory change.
It is anticipated that the economic impact of this rulemaking action will be minimal, since such economic impact as will occur is mandated by the cited statutory changes themselves, and not by rulemaking action. Accordingly, a full regulatory evaluation is not required. For the foregoing reasons and under the criteria of the Regulatory Flexibility Act, it is certified that this action will not have a significant economic impact on a substantial number of small entities.
UMTA has determined that this document contains neither a major rule under Executive Order 12291 nor a significant regulation under the regulatory policies and procedures of the Department of Transportation.
List of Subjects in 49 CFR Part 661
Buy America, Domestic preference, Contracts, Grants Programs -- transportation, Mass transportation.
PART 661 -- [AMENDED]
Accordingly, Part 661 of Title 49 of the Code of Federal Regulations is amended as follows:
1. In Section 661.1, by adding a new paragraph (c) to read as follows:
§ 661.1 Applicability.
* * * * *
(c) These regulations do not apply to a third party procurement contract for cement or cement products that is entered into by the grantee on or after March 9, 1984.
2. In Section 661.5, by removing the word "cement" in paragraph (a), and the words "and cement" in paragraph (b).
(Sec. 165, Pub. L. 97-424; Sec. 10, Pub. L. 98-229; 49 CFR 1.51)
Dated: January 9, 1985.
Ralph L. Stanley,
This material is reprinted with the permission of LEXIS-NEXIS, a division of Reed Elsevier Inc. No copyright is claimed as to any part of the original work prepared by a government officer or employee as part of that person's official duties.