Mr. Bill Coryell
Vice President, Sales
North American Bus Industries
20350 Ventura Blvd., Suite 205
Woodland Hills, California 91364
Dear Mr. Coryell:
This letter responds to your correspondence of April 5 and June 26, 2002, in which you request a non-availability waiver of the Buy America requirements for the procurement of the Hubner Manufacturing Corporation (Hubner) articulating joint system for use in North American Bus Industriesí (NABI) low floor and standard floor articulated buses. The system is comprised of a mechanical articulating joint incorporating an electronically controlled, hydraulic damping subsystem.
The Federal Transit Administrationís (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 NABI to count the joint as domestic for the purposes 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 regulation provides that non-availability waivers " 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 C.F.R. 661.7(f).
You state that the Hubner articulating joint system is necessary for the production of articulated buses and is not available from a domestic source. It was also noted that FTA granted a similar waiver to New Flyer on April 24, 2001. We posted a request for comments on this matter on our website and we received no comments from domestic manufacturers of this product, though we did receive comments from another foreign manufacturer who claims that they make an equivalent product and would be disadvantaged by a waiver for the Hubner product. FTA will follow-up separately with that party.
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 Hubnerís articulating joint system for NABIís articulated buses. In order to insure that the public is aware of this waiver, particularly potential manufacturers, this waiver will be published in the Federal Register.
However, as FTA told New Flyer in a January 17, 2001, letter, we expect NABI to work with domestic suppliers to attempt to develop alternative sources for these products. For that reason, we will grant this waiver to NABI for all solicitations responded to until April 24, 2003, which is when New Flyerís waiver expires. We will then evaluate the situation with respect to all vehicle and articulating joint manufacturers.
If you have any questions, please contact Meghan G. Ludtke at 202-366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel