Notice of Granted Buy America Waiver

Printer Friendly Number 66 FR 20027

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[Federal Register:  April 18, 2001  (Volume 66, Number 75)]
[Page 20027-20028]
From the Federal Register Online via GPO Access []
Federal Transit Administration
Notice of Granted Buy America Waiver
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of granted Buy America Waiver.
SUMMARY: This waiver allows construction contractors to use Omer heavy-
duty parallelogram lifts in vehicle garages without violating the Buy 
America regulations. It is predicated on the grounds that sufficient 
competition among suppliers is in the public interest and was granted 
on February 14, 2001, for the period of two years, or until such time 
as a second domestic source for the lift becomes available, whichever 
occurs first. This notice shall insure that the public, particularly 
potential manufacturers, is aware of this waiver. FTA requests that the 
public notify it of any relevant changes in the domestic market.
Chief Counsel, Room 9316, (202) 366-4011 (telephone) or (202) 366-3809 
SUPPLEMENTARY INFORMATION: The above-referenced waiver follows:
February 14, 2001.
H. Dean Bouland, Esq.,
Bouland & Brush, LLC, 201 North Charles Street, Suite 2400, 
Baltimore, Maryland 21201-4105.
    Dear Mr. Bouland: This letter responds to the request of your 
client, Steril-Koni, U.S.A., Inc., for a two-year public interest 
component waiver from the Buy America regulations for the Omer 
heavy-duty parallelogram bus lift, which your client currently 
distributes in the U.S. According to the information you have 
provided, Steril-Koni supplies these lifts to vehicle garage 
manufacturers as part of an overall construction contract. Steril-
Koni requests this waiver on the grounds that there are only two 
suppliers marketing such lifts in the U.S. and that sufficient 
competition of suppliers is in the public interest. For the reasons 
below, I have determined that a temporary component waiver is in the 
public interest.
    The Federal Transit Administration's (FTA) requirements 
concerning domestic preference for federally funded transit projects 
are set forth in 49 U.S.C. 5323(j). However, section 5323(j)(2)(A) 
states that those requirements shall not apply if doing so would be 
inconsistent with the public interest. See also, 49 CFR 661.7(b). 
The implementing regulation allows a bidder or supplier to request a 
public interest waiver ``for a specific item or material that is 
used in the production of a manufactured product.'' 49 CFR 661.7(g) 
and 661.9(d). FTA's rule looks at the end product being acquired in 
a given case. Where the procurement contract is for a garage or 
maintenance facility, the vehicle lift to be installed in the garage 
would be a component of that construction contract. See 43 FR 57146 
(1978), 46 FR 5809 (1981), 56 FR 928 (1991), and FTA Best Practices 
Procurement Manual, section 8.1.4 (1/98).
    Your client explains that while there are many vehicle lifts on 
the market, the heavy-duty parallelogram lift has unique features 
and is not widely produced. Such a lift has a capacity of at least 
20,000 lb., as well as an open floor design allowing maximum 
accessibility to the vehicle from the front, back, and sides. Your 
client has provided documentation from the Automotive Lift Institute 
that indicates there are only two suppliers marketing heavy-duty 
parallelogram bus lifts in the U.S., Steril-Koni and Rotary. Rotary 
is a U.S. manufacturer and Steril-Koni imports the product from 
Italy and assembles it in Baltimore, Maryland, using a U.S. labor 
force. Steril-Koni states that because of this manufacturing process 
general contractors wishing to purchase its lifts for use in vehicle 
garages may not do so unless they certify non-compliance with Buy 
America. Therefore, in order to certify compliance, Steril-Koni 
believes most contractors are inclined to purchase the lifts from 
Rotary. Steril-Koni asserts that this situation gives Rotary a 
monopoly in the U.S. market, and that such a monopoly will have the 
effect of increasing the price of the lifts, which would not be in 
the public interest. To support your client's position, you note 
that, in 1984, FTA granted a public interest waiver to Chrysler 
Corporation for 15 passenger vans. The vans were produced by only 
Chrysler and Ford Motor Company, and FTA grantees using
[[Page 20028]]
federal funds were forced to purchase the vans from Ford, the only 
party able to certify compliance with Buy America. FTA determined 
that it was in the public interest to have competition in the market 
place and granted the waiver. 49 FR 13944 (1984).
    FTA has reviewed the U.S. market for heavy-duty parallelogram 
lifts and has found that there are only two suppliers active in the 
U.S. market, of which only one can certify compliance with Buy 
America. In this circumstance, FTA concludes that the grounds for a 
public interest component waiver exist. Pursuant to the provisions 
of 49 U.S.C. 5323(j)(2)(A), a waiver is hereby granted for the 
foreign manufacture of the Omer heavy-duty parallelogram lifts for 
the period of two years, or until such time as a second domestic 
source for this type of lift becomes available, whichever occurs 
first. In order to insure that the public is aware of this waiver, 
particularly potential manufacturers, it will be published in the 
Federal Register.
    If you have any questions, please contact Meghan G. Ludtke at 
(202) 366-4011.
    Very truly yours,
Gregory B. McBride,
Deputy Chief Counsel.
    Issued on April 12, 2001.
Hiram J. Walker,
Acting Deputy Administrator.
[FR Doc. 01-9530 Filed 4-17-01; 8:45 am]