Notice of Granted Buy America Waiver

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[Federal Register:  May 22, 2001  (Volume 66, Number 99)]
[Page 28218]
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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 New Flyer of America to count a foreign 
manufactured articulating joint system used in its low floor buses as a 
domestic component for purposes of calculating the aggregate domestic 
content of the vehicle and was predicated on the non-availability of 
the item in the domestic market. The waiver was granted on April 24, 
2001, for the period of two years, or until such time as a domestic 
source for this articulating joint 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:
April 24, 2001.
Mr. Paul Smith,
Vice President, Sales and Marketing, New Flyer of America, 711 
Kerneghan Avenue, Winnipeg, Manitoba, Canada R2C 3T4
    Dear Mr. Smith: This letter responds to your correspondence of 
March 9, 2001, in which New Flyer of America requests a non-
availability waiver of the Buy America requirements for the 
procurement of the Hubner Manufacturing Corporation (Hubner) 
articulating joint system for use in New Flyer's low floor buses. 
The system is comprised of three sections, a mechanical artic joint 
and hydraulic damping unit, an electronic control unit, and a center 
hoop and bellows.
    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). Section 5323(j)(2)(C) addresses 
the general requirements for the procurement of rolling stock. This 
section provides that all rolling stock procured with FTA funds must 
have a domestic content of at least 60 percent and must undergo 
final assembly in the U.S.
    A non-availability waiver would allow New Flyer to count the 
joint as domestic for the purpose of calculating the aggregate 
domestic content of the vehicle. You request a waiver under 49 
U.S.C. 5323(j)(2)(B), which states the Buy America requirements 
shall not apply if the item or items being procured are not produced 
in the U.S. in sufficient and reasonably available quantities or are 
not of a satisfactory quality. The implementing regulation provides 
that, ``[i]t will be presumed that the conditions exist to grant 
this non-availability waiver if no responsive and responsible bid is 
received offering an item produced in the United States.'' 49 CFR 
661.7(c)(1). The regulation goes on to note that, ``[t]he waivers 
described in paragraphs (b) and (c) of this section may be granted 
for a component or subcomponent in the case of the procurement of 
the items governed by [49 U.S.C. 5323(j)(2)(C)] (requirements for 
rolling stock). If a waiver is granted for a component or 
subcomponent, that component or subcomponent will be considered to 
be of domestic origin for the purposes of section 661.11 of this 
part.'' 49 CFR 661.7(f). The regulations allow a bidder or supplier 
to request a non-availability waiver for a component or subcomponent 
in the procurement of rolling stock. See 49 CFR 661.7(f) and 49 CFR 
    New Flyer is a manufacturer of buses and regularly contracts to 
supply low floor buses to transit authorities and other U.S. 
customers. You state that the Hubner articulating joint system is 
necessary for the production of articulated low floor buses and is 
not available from a domestic source. In addition to the 
representations in your correspondence, you have also provided me 
with information indicating that, based on New Flyer's research, 
there are no U.S. companies with an approved design or the tooling 
necessary to produce the type of articulated joint required for New 
Flyer's low floor buses. You also included a letter from Hubner, 
which indicates that its manufacture of an American low floor 
articulating joint system is feasible but the manufacturing process 
would take a minimum of one year to develop.
    This matter has been reviewed by FTA's engineering staff who 
noted that some components of the three sections included in the 
articulating joint system are available domestically but the entire 
joint mechanism necessary for New Flyer's vehicle design is not. 
Additionally, switching to a different type of joint would 
necessitate costly and time-consuming engineering changes to a low 
floor vehicle that has a limited share of the market.
    Based on the information you have provided, I have determined 
that the grounds for a non-availability waiver do exist. Therefore, 
pursuant to the provisions of 49 U.S.C. 5323(j)(2)(B), the waiver is 
granted for the procurement of Hubner's articulating joint system 
for the New Flyer low floor buses for the period of two years, or 
until such time as a domestic source for this joint becomes 
available, whichever occurs first. In order to insure that the 
public is aware of this waiver, particularly potential 
manufacturers, this waiver will be published in the Federal 
    If you have any questions, please contact Meghan G. Ludtke at 
    Very truly yours,
Gregory B. McBride,
Acting Chief Counsel.
    Issued: May 16, 2001.
Hiram J. Walker,
Acting Deputy Administrator, Federal Transit Administration.
[FR Doc. 01-12863 Filed 5-21-01; 8:45 am]