Buy America Requirements (June 1986)


Printer Friendly Number 51 FR 22285
06-19-86

RULES and REGULATIONS
DEPARTMENT OF TRANSPORTATION
Urban Mass Transportation Administration
49 CFR Part 661
Buy America Requirements
Thursday, June 19, 1986
51 F.R. 22285

*22285 AGENCY: Urban Mass Transportation Administration, DOT.

ACTION: Final rule; amendment.

SUMMARY: This document amends the regulations implementing the "Buy America" provision of the Surface Transportation Assistance Act of 1982 by specifying the actual certificates that must be submitted by each bidder to indicate compliance or non-compliance with the applicable statutory and regulatory requirements.

EFFECTIVE DATE: The regulations are effective July 21, 1986.

FOR FURTHER INFORAMTION CONTACT: Edward J. Gill, Jr., Office of the Chief Counsel, Room 9228, 400 Seventh Street, SW., Washington, DC 20590, (202) 426- 4063.

SUPPLEMENTARY INFORMATION:

Introduction

Section 165 of the Surface Transportation Assistance Act of 1982 *22286 sets out domestic preference requirements that must be met when Federal mass transportation funds are being used for purchasing transit related products and equipment. UMTA regulations implementing this provision (49 CFR Part 661) provide that each bidder on a federally funded contract certify that it will be able to comply with the statutory provision.

The statutory provision distinguishes between the procurement of rolling stock and some associated equipment (section 165(b)(3)) and all other procurements (i.e., steel and manufactured products (section 165(a)). The regulations also provide that separate certificates be submitted depending on what is being procured.

Under the existing regulations, each bidder must submit a certificate indicating compliance. However, the regulations do not set forth the actual certificate to be submitted, and there have been several instances where this has caused confusion on the part of bidders. To eliminate this confusion, UMTA has determined that the regulation should be amended. Therefore, this amendment sets forth the actual wording of the certificate that must be used and describes the circumstances under which each specific certificate must be submitted.

Certification Description

This amendment creates two new sections, 49 CFR 661.6 and 49 CFR 661.12 and amends present section 49 CFR 661.13. Sections 661.6 and 661.2 require that separate certificates be used for certifying compliance with either section 165(a) or section 165(b)(3). UMTA believes that the separate certificates will eliminate confusion. If rolling stock (or the associated equipment listed in the statute and the regulations) is being procured, the bidder who can comply will certify that it will comply with section 165(b)(3) and its implementing regulations, and use the certificate at § 661.12. If steel or manufactured products are being procured, the certificate at § 661.6 will be used and reference section 165(a) and its implementing regulations.

Having two separate certificates eliminates confusion on the part of bidders because compliance with section 1645(b)(3) is actually an expectation to section 165(a).

The second part of § 661.6 requires that a separate certificate be used when a bidder will not be able to comply with the applicable Buy America requirements but that it may be able to comply under exceptions set forth in sections 165(b)(2) or 165(b)(4).

Similarly, the second part of § 661.12 requires a certificate requirement, which is very general in nature, when a bidder anticipates noncompliance. Since a bidder may not know at the time of bid submittal whether the grounds for an exception will exist, it is unnecessary to require a bidder to detail grounds for the exception--a statement that it may qualify for an exception is considered sufficient.

Section 661.13 changes the grantee responsibility to require the bidder to submit to the grantee the certificate as set forth in either § 661.6 or § 661.12 instead of the bidder merely indicating it will comply with section 165(a) and the regulation as § 661.13 formerly provided.

Pursuant to an exception under the Administrative Procedure Act, 5 U.S.C. 553(b)(B), UMTA finds that notice and public comment are unnecessary to the public interest in this instance. The existing regulations already call for certification, and this amendment merely provides a standard form for certification.

Executive Order 12291, Regulatory Flexibility Act, and Paperwork Reduction Act of 1980

This action has been reviewed under Executive Order 12291, and it has been determined that this is not a major rule. It will not result in an annual effect on the economy of $100 million or more. This regulation is not significant under the Department's Regulatory Policies and Procedures. We find that the economic impact of this regulation is so minimal that a full regulatory evaluation is not required.

In accordance with 5 U.S.C. 6-05(b), as added by the Regulatory Flexibility Act, Pub. L. 96-354, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Act.

The collection of information requirements in this rule are subject to the Paperwork Reduction Act, Pub. L. 96-511, 44 U.S.C. Chapter 35. These requirements are being submitted to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review.

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. The authority citation for Part 661 continues to read as follows:

    Authority: Sec. 165, Pub. L. 97-424; 49 CFR 1.51.

  2. By adding a new § 661.6 to read as follows:

    § 661.6 Certification requirement for procurement of steel or manufactured products.

    If steel or manufactured products (as defined in §§ 661.3 and 661.5 of this Part) are being procured, the appropriate certificate as set forth below shall be completed and submitted by each bidder in accordance with the requirement contained in § 661.13(b) of this part.

    Certificate of Compliance With Section 165(a)

    The bidder hereby certifies that it will comply with the requirements of section 165(a) of the Surface Transportation Assistance Act of 1982 and the applicable regulations in 49 CFR Part 661.

    Date--------------
    *22287 Signature--------------
    Title--------------

    Certificate for Non-Compliance With Section 165(a)

    The bidder hereby certifies that it cannot comply with the requirements of section 165(a) of the Surface Transportation Assistance Act of 1982, but it may qualify for an exception to the requirement pursuant to section 165 (b)(2) or (b)(4) of the Surface Transportation Assistance Act and regulations in 49 C.F.R. 661.7.

    Date--------------
    Signature--------------
    Title--------------

  3. By adding a new § 661.12 to read as follows:

    § 661.12 Certification requirement for procurement of buses, other rolling stock and associated equipment.

    If buses, or other rolling stock (including train control, communication, and traction power equipment) are being procured, the appropriate certificate as set forth below shall be completed and submitted by each bidder in accordance with the requirement contained in § 661.13(b) of this Part.

    Certificate of Compliance With Section 165(b)(3)

    The bidder hereby certifies that it will comply with the requirements of section 165(b)(3) of the Surface Transportation Assistance Act of 1982 and the regulations in 49 CFR Part 661.11.

    Name--------------
    Signature--------------
    Title--------------

    Certificate for Non-Compliance With Section 165(b)(3)

    The bidder hereby certifies that it cannot comply with the requirements of section 165(b)(3) of the Surface Transportation Assistance Act of 1982, but may qualify for an exception to the requirement pursuant to section 165 (b)(2) or (b)(4) of the Surface Transportation Assistance Act and regulations in 49 C.F.R. 661.7.

    Name--------------
    Signature--------------
    Title--------------

  4. Revising § 661.13(b) to read as follows:

    § 661.13 Grantee responsibility.

    * * * * *

    (b) The grantee shall include in its bid specification for procurement within the scope of these regulations an appropriate notice of the Buy America provision. Such specifications shall require, as a condition of responsiveness, that the bidder or offeror submit with the bid a completed Buy America certificate in accordance with § 661.6 or § 661.12 of this Part, as appropriate.

Dated: June 11, 1986.

Ralph L. Stanley,

Administrator.

[FR Doc. 86-13716 Filed 6-18-86; 8:45 am]

BILLING CODE 4910-57-M

51 FR 22285-03, 1986 WL 103052 (F.R.)
END OF DOCUMENT

This document was obtained from Westlaw and is used with permission.