Notice of Granted Buy America Waiver
Number 66 FR 28218
05-22-01
[PDF Format]
[Federal Register: May 22, 2001 (Volume 66, Number 99)]
[Notices]
[Page 28218]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my01-124]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
Notice of Granted Buy America Waiver
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Granted Buy America Waiver.
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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.
FOR FURTHER INFORMATION PLEASE CONTACT: Meghan G. Ludtke, FTA Office of
Chief Counsel, Room 9316, (202) 366-4011 (telephone) or (202) 366-3809
(fax).
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
661.9(d).
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
Register.
If you have any questions, please contact Meghan G. Ludtke at
202.366-4011.
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]
BILLING CODE 4910-57-P
