Mr. Christopher Crassweller
Manager Corporate and Legal Affairs
Orion Bus Industries
350 Hazelhurst Road
Mississauge, Ontario L5J 4T8
Dear Mr. Crassweller:
This letter responds to your correspondence of July 17, 2002, in which you request an extension of a Buy America waiver granted for the procurement of the GNX axle for use in your Orion II paratransit vehicle.
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.
This waiver would allow Orion to count the axle as domestic for the purposes of calculating overall domestic content of the vehicle. You request a waiver under 49 U.S.C. §5323(j)(2)(B), which states those requirements shall not apply if the item or items being procured are not produced in the U.S. in sufficient and reasonably available quantities and of a satisfactory quality. The implementing regulation provides that "[these] waivers . . . may be granted for a component or subcomponent in the case of procurement of the items governed by section 165(b)(3) of the Act (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). 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 C.F.R. 661.7(f) and 49 C.F.R. 661.9(d).
You claim that the type of axle necessary for the production of the Orion II is not available from a domestic source. In addition to the representations in your correspondence, you have also provided me with letters from two U.S. manufacturers of heavy-duty axles, Spicer Heavy Axle and Arvin Meritor. You represent that these are the only two such manufacturers, and their correspondence confirms that they have no plans to manufacture an axle for your paratransit vehicle in the U.S. FTA also posted a request for comments on this matter on our website and we received no comments from domestic manufacturers of this product.
Based on the information you have provided, I have determined that the grounds for a "non-availability" waiver exist. Therefore, pursuant to the provisions of 49 U.S.C. §5323(j)(2)(B), the waiver is hereby extended for the procurement of heavy-duty axles for the Orion II for the period of two years. 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
Deputy Chief Counsel