Notice of Buy America Waiver for the National Fuel Cell Bus Technology Development Program, 46350-46352 [E8-18313]
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
the procedures set forth in 49 CFR part
397, subpart E—Preemption Procedures.
ATA requests that the FMCSA
Administrator make a determination on
whether the highway routing
designations established by Boston are
preempted pursuant to § 397.69(b). A
copy of the ATA application for
preemption determination is available
for review in the docket for this notice.
You may view or obtain a copy of the
application online by visiting https://
www.regulations.gov and going to the
docket number for this matter (FMCSA–
2008–0204).
Public Comments
FMCSA seeks comments on whether
49 CFR 397.69(b) preempts Boston’s
highway routing designations that are
being challenged by ATA. Comments
should specifically address the
preemption standard established under
49 CFR 397.69(b) and 49 U.S.C. 5125(c).
Issued on: August 1, 2008.
John H. Hill,
Administrator.
[FR Doc. E8–18344 Filed 8–7–08; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA–2008–0024]
Notice of Buy America Waiver for the
National Fuel Cell Bus Technology
Development Program
Federal Transit Administration
(FTA), DOT.
ACTION: Notice of Buy America waiver.
pwalker on PROD1PC71 with NOTICES
AGENCY:
SUMMARY: On May 22, 2008, the Federal
Transit Administration (FTA) published
a Notice of Proposed Buy America
Waiver for the National Fuel Cell Bus
Technology Development Program (Fuel
Cell Bus Program). After careful review
of comments, FTA has decided to waive
its Buy America requirements for
projects funded under the Fuel Cell Bus
Program. This Notice sets forth FTA’s
justification and response to comments.
FOR FURTHER INFORMATION CONTACT: For
program questions please contact
Christina Gikakis at (202) 366–2637 or
christina.gikakis@dot.gov. For legal
questions please contact Jayme L.
Blakesley at (202) 366–0304 or
jayme.blakesley@dot.gov.
This
Notice sets forth the Federal Transit
Administration’s (FTA) justification for
waiving its Buy America requirements
for projects funded under the National
SUPPLEMENTARY INFORMATION:
VerDate Aug<31>2005
17:25 Aug 07, 2008
Jkt 214001
Fuel Cell Bus Technology Development
Program (Fuel Cell Bus Program).
The National Fuel Cell Bus Technology
Development Program
Section 3046 of the Safe, Accountable,
Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA–LU),
Public Law 109–59, instructed FTA ‘‘to
establish a national fuel cell bus
technology program [Fuel Cell Bus
Program] to facilitate the development
of commercially viable fuel cell bus
technology and related infrastructure.’’
By notice dated April 14, 2006, FTA
solicited applications to the Fuel Cell
Bus Program and restated the statutory
criteria for evaluating applications.
These criteria included the ability of the
project ‘‘to contribute significantly to
furthering fuel cell technology as it
relates to transit bus operations,
including hydrogen production, energy
storage, fuel cell technologies, vehicle
systems integration, and power
electronics technology,’’ and to advance
‘‘different fuel cell technologies,
including hydrogen-fueled and
methanol-powered liquid-fueled fuel
cell technologies, that may be viable for
public transportation systems.’’ 71 FR
19612 (April 14, 2006).
FTA selected three consortia to
participate in the Fuel Cell Bus
Program: the Center for Transportation
and the Environment in Atlanta, the
Northeast Advanced Vehicle
Consortium in Boston, and Westart/
CALSTART in Pasadena. These
consortia will manage fourteen projects.
Of these, eight are development and
demonstration projects, two are
component technology development,
and four support analysis, outreach and
coordination.
The Fuel Cell Bus Program seeks to
develop commercially viable fuel cell
buses by demonstrating that buses
powered by fuel cell technology can
achieve several technical targets,
including a four to six year (20,000 to
30,000 hour) fuel cell durability, a cost
of less than five times that of an
equivalent diesel, greater than 90%
reliability, twice the fuel efficiency of a
comparable bus, emissions below the
2010 Environmental Protection Agency
standards and vehicle performance
comparable to a diesel bus.
Public Interest Waiver
The purpose of this notice is to
articulate FTA’s justification for waiving
its Buy America requirements for all
projects funded under the Fuel Cell Bus
Program.
With certain exceptions, FTA’s ‘‘Buy
America’’ requirements prevent FTA
from obligating an amount that may be
PO 00000
Frm 00116
Fmt 4703
Sfmt 4703
appropriated to carry out its program for
a project unless ‘‘the steel, iron, and
manufactured goods used in the project
are produced in the United States.’’ 49
U.S.C. 5323(j)(1). One such exception is
if applying the Buy America
requirements ‘‘would be inconsistent
with the public interest.’’ 49 U.S.C.
5323(j)(2)(A). After considering all
appropriate factors on a case-by-case
basis, 49 CFR 661.7(b), if FTA
determines that the conditions exist to
grant a public interest waiver, FTA will
issue a detailed written statement
justifying why the waiver is in the
public interest, and will publish this
justification in the Federal Register,
providing the public with a reasonable
time for notice and comment of not
more than seven calendar days. 49 CFR
661.7(b).
Justification
Because the U.S. market for fuel cell
bus technology and related
infrastructure is not fully developed,
participants in the Fuel Cell Bus
Program asked FTA to waive its Buy
America requirements for projects
funded under the Fuel Cell Bus
Program. According to one participant,
‘‘[a] successful Fuel Cell transit bus
must meet and be consistent with the
public transit market’s ability to
incorporate and afford such technology
on a mass scale. * * * At this stage of
technology development more
engineering data is necessary to
accurately specify a fuel cell for a
competitive bid. [Requiring participants
to comply with FTA’s Buy America
requirements] would significantly delay
the development effort, would be
extremely expensive, and would result
in a huge set back to the overall
development of Fuel Cell technology.
[Allowing participants to use all
available technology, regardless of
origin,] is the fastest, soundest method
to perfect the technology, assure future
competition, and hasten the advent of
fuel cell buses in transit.’’
In order to develop commercially
viable fuel cell buses, FTA’s Fuel Cell
Bus Program must examine all current
technologies. But at this time, because
fuel cell technologies for transit are still
in the developmental and technical
validation phase, it is impossible to
determine which configurations are
most likely to reach commercialization.
As development continues, the industry
will require objective demonstrations
and evaluations of different bus
propulsion systems. Permitting
participants to use foreign and domestic
suppliers will allow FTA to evaluate
which technologies are closest to
successful deployment. If certain
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technologies are omitted from the
program because they are of foreign
origin, it will severely affect FTA’s
ability to fully analyze fuel cell bus
technology.
There are several benefits to waiving
FTA’s Buy America requirements on a
program-wide basis. FTA selected
projects to include all significant
technologies within a centrally managed
program. By granting a waiver for the
entire program, FTA can decrease the
start-up time for individual projects.
Otherwise, each project would have to
apply for waivers on a case-by-case
basis. This is impractical in a research
setting. Research projects often
encounter unexpected problems that
require changes to the scope of work.
The continued development of Fuel Cell
technology will result in more choices
for FTA grantees and better, more
environmentally friendly, buses for the
riding public. Successful
demonstrations through the Fuel Cell
Bus Program will increase awareness of
fuel cell technology and foster a
domestic industry by identifying and
mitigating barriers and uncertainties in
the market. A limited waiver to support
research and development will increase
and improve domestic technical
expertise. Moreover, a fully inclusive
public interest waiver will allow Fuel
Cell Bus Program participants to
collaborate to achieve the program goals
in an appropriate timeframe. By
reducing risk and expanding expertise,
the Fuel Cell Bus Program will improve
the availability of capital for a selfsustaining domestic fuel cell industry.
Summary of Comments
On May 22, 2008, pursuant to 49 CFR
661.7(b), FTA published a detailed
written statement in the Federal
Register at 73 FR 29841. This notice
stated why FTA proposed to waive its
Buy America requirements for projects
funded under the Fuel Cell Bus Program
and allowed interested parties a
reasonable time to comment on the
proposed waiver.
By an overwhelming margin, the
commenters supported waiving FTA’s
Buy America requirements. Of the nine
parties that submitted comments, six
favor and only one opposes waiving
FTA’s Buy America requirements. The
remaining two comments were
ambiguous. One expressed interest in
working with FTA but did not state its
position on waiving FTA’s Buy America
requirements. The other stated the
commenter’s intent to submit comments
at a later date (this intent was not
realized as this party has not submitted
comments to date). The following is a
summary of the comments received.
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17:25 Aug 07, 2008
Jkt 214001
1. GE Global Research stated, ‘‘[t]his
program is supporting leading-edge
research that requires sourcing partners
from around the world to satisfy the
challenging requirements set forth in the
program.’’
2. The Northeast Advanced Vehicle
Consortium commented, ‘‘[t]he very
nature of the research * * * requires
that participating corporations are
granted access to the most appropriate
and advanced technologies in, what is
in the United States, a nascent industry.
Several of the participating business
[sic], all experts in fuel-cell
transportation research and
development, have determined that
procuring the best possible technologies
will at times require them to acquire
parts from foreign sources if they are to
develop internationally competitive
transportation products. * * * any
delay in this critical development
program [is] a lost opportunity to satisfy
America’s transportation needs for the
twenty-first century.’’
3. Alameda-Contra Costa Transit
District (AC Transit), an entity that has
been developing fuel cell bus
technology and supporting hydrogen
fueling infrastructure since 1999,
expressed its support of FTA’s
recommendation to waive the Buy
America requirements for projects
funded under the Fuel Cell Bus
Program, stating that ‘‘FTA staff has
made a convincing case for a sound and
reasonable process to expedite the
research and development efforts in
support of the deployment of fuel cell
technology in the United States.’’
According to AC Transit, demonstrating
‘‘overall vehicle reliability and
durability under real-world, heavy-duty
operating conditions’’ will open up ‘‘a
new generation of technology * * * that
not only can deliver significant benefits
in air quality, noise reduction, and
carbon emissions reductions, but will
serve to help diversify our nation’s fuel
supply towards the goal of energy
independence.’’
4. Nuvera Fuel Cells, a U.S.-based
company that utilizes international
cooperation for the fuel cell engine that
will be used in the Fuel Cell Bus
Program, supports a waiver, stating that
‘‘[t]his waiver is important to ensure
timely access to the latest engine
technology.’’
5. UTC Power, a United Technologies
Company based in South Windsor,
Connecticut, supports waiving FTA’s
Buy America requirements because (1)
‘‘the waiver will facilitate timely
achievement of the Fuel Cell Bus
Program objectives’’; (2) ‘‘validation of
the commercial viability of fuel cell
buses will stimulate and further expand
PO 00000
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Fmt 4703
Sfmt 4703
46351
the U.S. fuel cell industry’’; and (3) ‘‘the
scope of the waiver is limited solely to
the Fuel Cell Bus Program.’’
6. Santa Clara Valley Transportation
Authority supports FTA’s proposal ‘‘so
that [fuel cell bus] technology can
develop beyond the present
developmental/technical validation
phase.’’
7. Delphi Corporation submitted
comments but did not state whether it
favored or disfavored waving FTA’s Buy
America requirements for projects
funded under the Fuel Cell Bus
Program. Delphi believes that its ‘‘U.S.developed fuel cell technology is
applicable to heavy duty vehicle
applications,’’ and ‘‘look[s] forward to
any current or future opportunities to
work with the FTA on assessing,
developing, demonstrating and
commercializing solid oxide fuel cell
systems in public transit applications.’’
8. Air Products and Chemicals, Inc.
(Air Products) submitted comments
opposed to waiving FTA’s Buy America
requirements. According to Air
Products, ‘‘domestic sourcing difficulty
does not apply to hydrogen fueling
infrastructure and hydrogen’’ because
‘‘the two largest merchant hydrogen
producers in the world are United States
companies. The production capacity of
these two firms can easily fuel 1 million
personal vehicles or 30,000 buses.’’
9. North American Bus Industries
(NABI) submitted a comment stating
that it ‘‘intends to provide comments on
the captioned matter within the next
seven to ten days.’’ To date, FTA has not
received comments from NABI.
Response to Comments
While it is not the intent of FTA to
support or fund foreign suppliers of
fueling infrastructure, FTA does feel
that restricting the selected projects to
U.S. suppliers would limit the ability of
the managing consortia to select and
demonstrate a range of innovative
technologies.
FTA agrees with Air Products that the
Nation would be poorly served by a
research program that contributes to the
transfer of market leadership or
Intellectual Property (IP) to foreign
interests in the market for hydrogen
infrastructure. FTA has determined that
the infrastructure components of the
Fuel Cell Bus Program are very small
relative to the national hydrogen
infrastructure markets, and appear to
involve predominantly U.S. suppliers of
infrastructure. Furthermore, some
demonstration sites have not finalized
plans for fueling infrastructure.
Requiring project managers to apply for
individual waivers as these decisions
are finalized will significantly delay
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
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project implementation. It would also
restrict the flexibility of the sites to
quickly change project partners and cost
share, which is important in research
programs to respond to unforeseen
problems.
Therefore, FTA feels there is no risk
that this research program will
contribute to the transfer of market
leadership from a U.S. to a foreign entity
in the national market for hydrogen
infrastructure.
In regard to IP, FTA fully appreciates
the importance of IP in highly
competitive industries. FTA has no
interest in facilitating the transfer of IP
from U.S. firms to foreign entities. FTA
assures all concerned that, within the
Fuel Cell Bus Program, all IP developed
or retained by U.S. interests will remain
under the control of those interests.
There is no additional risk that IP
belonging to U.S. interests will be
unwittingly transferred to outside
entities. Foreign companies
participating in the National Fuel Cell
Bus Program are required to agree to
standardized data collection. Objective
evaluations of the bus demonstration
programs are a major component of the
program and will provide U.S.
companies non-proprietary performance
data and analysis of all fueling
infrastructure used in the program.
FTA recognizes that U.S. companies
have significant experience developing
and operating hydrogen fueling stations.
However, though hydrogen production
has advanced further than fuel cell
technology, FTA determines it is still
beneficial to examine all available and
developing technologies. In cases where
infrastructure funding is a major
component of the project, it is focused
on novel applications, not on replicating
or competing with efforts where U.S.
companies have already proven to be
capable leaders.
In conclusion, FTA’s review of the
selection process and industry
comments relating to the Fuel Cell Bus
Program support our judgment that the
transit industry and American public at
large will best be served by a fuel cell
bus research program not bound by Buy
America requirements.
Waiver
Therefore, after carefully considering
all comments, and for the reasons stated
in its justification above, FTA hereby
waives its Buy America requirements
for all projects funded through its Fuel
Cell Bus Program. Quick and successful
deployment of fuel cell bus technology
and infrastructure is in the public
interest. Fuel cell technology will
benefit the environment by lessening
carbon emissions and decreasing the use
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17:25 Aug 07, 2008
Jkt 214001
of petroleum and other fossil fuels.
Allowing foreign technologies will
allow the project teams to focus on
commercial viability instead of having
to make fundamental advances
independent of existing technology.
Ultimately, this will lead to increased
domestic demand for fuel cell bus
technology and infrastructure, resulting
in a sustainable U.S. market.
Issued this 31st day of July, 2008.
Severn E.S. Miller,
Chief Counsel.
[FR Doc. E8–18313 Filed 8–7–08; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA–2008–0020]
Final Guidance on New Starts/Small
Starts Policies and Procedures
Federal Transit Administration
(FTA), DOT.
ACTION: Notice of Availability of Final
Guidance on New Starts/Small Starts
Policies and Procedures.
AGENCY:
SUMMARY: This notice conveys the
Federal Transit Administration’s (FTA)
Final Guidance on New Starts/Small
Starts Policies and Procedures.
DATES: Effective Date: These policies
and procedures will take effect on
August 8, 2008.
FOR FURTHER INFORMATION CONTACT: Ron
Fisher, Office of Planning and
Environment, telephone (202) 366–
4033, Federal Transit Administration,
U.S. Department of Transportation, 1200
New Jersey Avenue, SE., East Building,
Washington, DC 20590 or
Ronald.Fisher@dot.gov.
Availability of Comments Considered in
the Development of This Guidance
A copy of the notice of availability of
the proposed Guidance, issued on April
18, 2008, and comments and material
received from the public as a part of its
review of the proposed Guidance, are
part of docket FTA–2008–0020 and are
available for inspection or copying at
the Docket Management Facility, U.S.
Department of Transportation, West
Building, Room W12–140, 1200 New
Jersey Avenue, SE., Washington, DC
20590 between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays. You may retrieve the
comments online at: https://
www.regulations.gov. Enter docket
number FTA–2008–0020 in the search
field. In the ‘‘Narrow Results’’ section
on the left side of the screen, click on
PO 00000
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Fmt 4703
Sfmt 4703
‘‘Rules.’’ The Web site is available 24
hours each day, 365 days each year.
Electronic submission and retrieval help
and guidelines are available under the
help section of the Web site. An
electronic copy of this document may
also be downloaded by using a
computer, modem and suitable
communications software from the
Government Printing Office’s Electronic
Bulletin Board Service at (202) 512–
1661. Internet users may also reach the
Office of the Federal Register’s home
page at: https://www.nara.gov/fedreg and
the Government Printing Office’s Web
page at: https://www.gpoaccess.gov/fr/
index.html.
Response to Comments and New and
Small Starts Program Changes
The purpose of this notice is to
convey the Final Guidance on New
Starts/Small Starts Policies and
Procedures, reflecting the changes
implemented as a result of comments
received on the April 18, 2008 Notice of
Availability (73 FR 21170). FTA finds
that there is good cause to make this
guidance effective upon publication of
this notice in order to assist grantees to
enter or complete development of
proposed projects.
1. Initiation Package
FTA adopts as final its proposal to
require that project sponsors beginning
an alternatives analysis prepare and
provide to FTA a package of information
on: (1) The problems that motivate
consideration of major transit
alternatives in a corridor; (2) the
alternatives that have been identified for
consideration; and (3) the information
that will be prepared to support
decisions on the alternatives along with
the identification of the general
approach to development of that
information.
Preparing the package at the
beginning of an alternative analysis
allows FTA and other stakeholders to
better understand the key
considerations for an alternatives
analysis. We anticipate that this will
result in a more streamlined process.
Comments: A significant number of
respondents supported this measure as
a way to discuss potential road blocks
that may occur in the project
development process. Several
commenters opposed this proposal
indicating the scope of the proposal is
best suited for a rulemaking process and
is beyond the level of change
appropriate for annual policy guidance.
Response: The proposal is a small
change in FTA requirements that is
properly implemented through policy
guidance.
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Agencies
[Federal Register Volume 73, Number 154 (Friday, August 8, 2008)]
[Notices]
[Pages 46350-46352]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18313]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2008-0024]
Notice of Buy America Waiver for the National Fuel Cell Bus
Technology Development Program
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Buy America waiver.
-----------------------------------------------------------------------
SUMMARY: On May 22, 2008, the Federal Transit Administration (FTA)
published a Notice of Proposed Buy America Waiver for the National Fuel
Cell Bus Technology Development Program (Fuel Cell Bus Program). After
careful review of comments, FTA has decided to waive its Buy America
requirements for projects funded under the Fuel Cell Bus Program. This
Notice sets forth FTA's justification and response to comments.
FOR FURTHER INFORMATION CONTACT: For program questions please contact
Christina Gikakis at (202) 366-2637 or christina.gikakis@dot.gov. For
legal questions please contact Jayme L. Blakesley at (202) 366-0304 or
jayme.blakesley@dot.gov.
SUPPLEMENTARY INFORMATION: This Notice sets forth the Federal Transit
Administration's (FTA) justification for waiving its Buy America
requirements for projects funded under the National Fuel Cell Bus
Technology Development Program (Fuel Cell Bus Program).
The National Fuel Cell Bus Technology Development Program
Section 3046 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, instructed FTA ``to establish a national fuel cell bus
technology program [Fuel Cell Bus Program] to facilitate the
development of commercially viable fuel cell bus technology and related
infrastructure.''
By notice dated April 14, 2006, FTA solicited applications to the
Fuel Cell Bus Program and restated the statutory criteria for
evaluating applications. These criteria included the ability of the
project ``to contribute significantly to furthering fuel cell
technology as it relates to transit bus operations, including hydrogen
production, energy storage, fuel cell technologies, vehicle systems
integration, and power electronics technology,'' and to advance
``different fuel cell technologies, including hydrogen-fueled and
methanol-powered liquid-fueled fuel cell technologies, that may be
viable for public transportation systems.'' 71 FR 19612 (April 14,
2006).
FTA selected three consortia to participate in the Fuel Cell Bus
Program: the Center for Transportation and the Environment in Atlanta,
the Northeast Advanced Vehicle Consortium in Boston, and Westart/
CALSTART in Pasadena. These consortia will manage fourteen projects. Of
these, eight are development and demonstration projects, two are
component technology development, and four support analysis, outreach
and coordination.
The Fuel Cell Bus Program seeks to develop commercially viable fuel
cell buses by demonstrating that buses powered by fuel cell technology
can achieve several technical targets, including a four to six year
(20,000 to 30,000 hour) fuel cell durability, a cost of less than five
times that of an equivalent diesel, greater than 90% reliability, twice
the fuel efficiency of a comparable bus, emissions below the 2010
Environmental Protection Agency standards and vehicle performance
comparable to a diesel bus.
Public Interest Waiver
The purpose of this notice is to articulate FTA's justification for
waiving its Buy America requirements for all projects funded under the
Fuel Cell Bus Program.
With certain exceptions, FTA's ``Buy America'' requirements prevent
FTA from obligating an amount that may be appropriated to carry out its
program for a project unless ``the steel, iron, and manufactured goods
used in the project are produced in the United States.'' 49 U.S.C.
5323(j)(1). One such exception is if applying the Buy America
requirements ``would be inconsistent with the public interest.'' 49
U.S.C. 5323(j)(2)(A). After considering all appropriate factors on a
case-by-case basis, 49 CFR 661.7(b), if FTA determines that the
conditions exist to grant a public interest waiver, FTA will issue a
detailed written statement justifying why the waiver is in the public
interest, and will publish this justification in the Federal Register,
providing the public with a reasonable time for notice and comment of
not more than seven calendar days. 49 CFR 661.7(b).
Justification
Because the U.S. market for fuel cell bus technology and related
infrastructure is not fully developed, participants in the Fuel Cell
Bus Program asked FTA to waive its Buy America requirements for
projects funded under the Fuel Cell Bus Program. According to one
participant, ``[a] successful Fuel Cell transit bus must meet and be
consistent with the public transit market's ability to incorporate and
afford such technology on a mass scale. * * * At this stage of
technology development more engineering data is necessary to accurately
specify a fuel cell for a competitive bid. [Requiring participants to
comply with FTA's Buy America requirements] would significantly delay
the development effort, would be extremely expensive, and would result
in a huge set back to the overall development of Fuel Cell technology.
[Allowing participants to use all available technology, regardless of
origin,] is the fastest, soundest method to perfect the technology,
assure future competition, and hasten the advent of fuel cell buses in
transit.''
In order to develop commercially viable fuel cell buses, FTA's Fuel
Cell Bus Program must examine all current technologies. But at this
time, because fuel cell technologies for transit are still in the
developmental and technical validation phase, it is impossible to
determine which configurations are most likely to reach
commercialization. As development continues, the industry will require
objective demonstrations and evaluations of different bus propulsion
systems. Permitting participants to use foreign and domestic suppliers
will allow FTA to evaluate which technologies are closest to successful
deployment. If certain
[[Page 46351]]
technologies are omitted from the program because they are of foreign
origin, it will severely affect FTA's ability to fully analyze fuel
cell bus technology.
There are several benefits to waiving FTA's Buy America
requirements on a program-wide basis. FTA selected projects to include
all significant technologies within a centrally managed program. By
granting a waiver for the entire program, FTA can decrease the start-up
time for individual projects. Otherwise, each project would have to
apply for waivers on a case-by-case basis. This is impractical in a
research setting. Research projects often encounter unexpected problems
that require changes to the scope of work. The continued development of
Fuel Cell technology will result in more choices for FTA grantees and
better, more environmentally friendly, buses for the riding public.
Successful demonstrations through the Fuel Cell Bus Program will
increase awareness of fuel cell technology and foster a domestic
industry by identifying and mitigating barriers and uncertainties in
the market. A limited waiver to support research and development will
increase and improve domestic technical expertise. Moreover, a fully
inclusive public interest waiver will allow Fuel Cell Bus Program
participants to collaborate to achieve the program goals in an
appropriate timeframe. By reducing risk and expanding expertise, the
Fuel Cell Bus Program will improve the availability of capital for a
self-sustaining domestic fuel cell industry.
Summary of Comments
On May 22, 2008, pursuant to 49 CFR 661.7(b), FTA published a
detailed written statement in the Federal Register at 73 FR 29841. This
notice stated why FTA proposed to waive its Buy America requirements
for projects funded under the Fuel Cell Bus Program and allowed
interested parties a reasonable time to comment on the proposed waiver.
By an overwhelming margin, the commenters supported waiving FTA's
Buy America requirements. Of the nine parties that submitted comments,
six favor and only one opposes waiving FTA's Buy America requirements.
The remaining two comments were ambiguous. One expressed interest in
working with FTA but did not state its position on waiving FTA's Buy
America requirements. The other stated the commenter's intent to submit
comments at a later date (this intent was not realized as this party
has not submitted comments to date). The following is a summary of the
comments received.
1. GE Global Research stated, ``[t]his program is supporting
leading-edge research that requires sourcing partners from around the
world to satisfy the challenging requirements set forth in the
program.''
2. The Northeast Advanced Vehicle Consortium commented, ``[t]he
very nature of the research * * * requires that participating
corporations are granted access to the most appropriate and advanced
technologies in, what is in the United States, a nascent industry.
Several of the participating business [sic], all experts in fuel-cell
transportation research and development, have determined that procuring
the best possible technologies will at times require them to acquire
parts from foreign sources if they are to develop internationally
competitive transportation products. * * * any delay in this critical
development program [is] a lost opportunity to satisfy America's
transportation needs for the twenty-first century.''
3. Alameda-Contra Costa Transit District (AC Transit), an entity
that has been developing fuel cell bus technology and supporting
hydrogen fueling infrastructure since 1999, expressed its support of
FTA's recommendation to waive the Buy America requirements for projects
funded under the Fuel Cell Bus Program, stating that ``FTA staff has
made a convincing case for a sound and reasonable process to expedite
the research and development efforts in support of the deployment of
fuel cell technology in the United States.'' According to AC Transit,
demonstrating ``overall vehicle reliability and durability under real-
world, heavy-duty operating conditions'' will open up ``a new
generation of technology * * * that not only can deliver significant
benefits in air quality, noise reduction, and carbon emissions
reductions, but will serve to help diversify our nation's fuel supply
towards the goal of energy independence.''
4. Nuvera Fuel Cells, a U.S.-based company that utilizes
international cooperation for the fuel cell engine that will be used in
the Fuel Cell Bus Program, supports a waiver, stating that ``[t]his
waiver is important to ensure timely access to the latest engine
technology.''
5. UTC Power, a United Technologies Company based in South Windsor,
Connecticut, supports waiving FTA's Buy America requirements because
(1) ``the waiver will facilitate timely achievement of the Fuel Cell
Bus Program objectives''; (2) ``validation of the commercial viability
of fuel cell buses will stimulate and further expand the U.S. fuel cell
industry''; and (3) ``the scope of the waiver is limited solely to the
Fuel Cell Bus Program.''
6. Santa Clara Valley Transportation Authority supports FTA's
proposal ``so that [fuel cell bus] technology can develop beyond the
present developmental/technical validation phase.''
7. Delphi Corporation submitted comments but did not state whether
it favored or disfavored waving FTA's Buy America requirements for
projects funded under the Fuel Cell Bus Program. Delphi believes that
its ``U.S.-developed fuel cell technology is applicable to heavy duty
vehicle applications,'' and ``look[s] forward to any current or future
opportunities to work with the FTA on assessing, developing,
demonstrating and commercializing solid oxide fuel cell systems in
public transit applications.''
8. Air Products and Chemicals, Inc. (Air Products) submitted
comments opposed to waiving FTA's Buy America requirements. According
to Air Products, ``domestic sourcing difficulty does not apply to
hydrogen fueling infrastructure and hydrogen'' because ``the two
largest merchant hydrogen producers in the world are United States
companies. The production capacity of these two firms can easily fuel 1
million personal vehicles or 30,000 buses.''
9. North American Bus Industries (NABI) submitted a comment stating
that it ``intends to provide comments on the captioned matter within
the next seven to ten days.'' To date, FTA has not received comments
from NABI.
Response to Comments
While it is not the intent of FTA to support or fund foreign
suppliers of fueling infrastructure, FTA does feel that restricting the
selected projects to U.S. suppliers would limit the ability of the
managing consortia to select and demonstrate a range of innovative
technologies.
FTA agrees with Air Products that the Nation would be poorly served
by a research program that contributes to the transfer of market
leadership or Intellectual Property (IP) to foreign interests in the
market for hydrogen infrastructure. FTA has determined that the
infrastructure components of the Fuel Cell Bus Program are very small
relative to the national hydrogen infrastructure markets, and appear to
involve predominantly U.S. suppliers of infrastructure. Furthermore,
some demonstration sites have not finalized plans for fueling
infrastructure. Requiring project managers to apply for individual
waivers as these decisions are finalized will significantly delay
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project implementation. It would also restrict the flexibility of the
sites to quickly change project partners and cost share, which is
important in research programs to respond to unforeseen problems.
Therefore, FTA feels there is no risk that this research program
will contribute to the transfer of market leadership from a U.S. to a
foreign entity in the national market for hydrogen infrastructure.
In regard to IP, FTA fully appreciates the importance of IP in
highly competitive industries. FTA has no interest in facilitating the
transfer of IP from U.S. firms to foreign entities. FTA assures all
concerned that, within the Fuel Cell Bus Program, all IP developed or
retained by U.S. interests will remain under the control of those
interests. There is no additional risk that IP belonging to U.S.
interests will be unwittingly transferred to outside entities. Foreign
companies participating in the National Fuel Cell Bus Program are
required to agree to standardized data collection. Objective
evaluations of the bus demonstration programs are a major component of
the program and will provide U.S. companies non-proprietary performance
data and analysis of all fueling infrastructure used in the program.
FTA recognizes that U.S. companies have significant experience
developing and operating hydrogen fueling stations. However, though
hydrogen production has advanced further than fuel cell technology, FTA
determines it is still beneficial to examine all available and
developing technologies. In cases where infrastructure funding is a
major component of the project, it is focused on novel applications,
not on replicating or competing with efforts where U.S. companies have
already proven to be capable leaders.
In conclusion, FTA's review of the selection process and industry
comments relating to the Fuel Cell Bus Program support our judgment
that the transit industry and American public at large will best be
served by a fuel cell bus research program not bound by Buy America
requirements.
Waiver
Therefore, after carefully considering all comments, and for the
reasons stated in its justification above, FTA hereby waives its Buy
America requirements for all projects funded through its Fuel Cell Bus
Program. Quick and successful deployment of fuel cell bus technology
and infrastructure is in the public interest. Fuel cell technology will
benefit the environment by lessening carbon emissions and decreasing
the use of petroleum and other fossil fuels. Allowing foreign
technologies will allow the project teams to focus on commercial
viability instead of having to make fundamental advances independent of
existing technology. Ultimately, this will lead to increased domestic
demand for fuel cell bus technology and infrastructure, resulting in a
sustainable U.S. market.
Issued this 31st day of July, 2008.
Severn E.S. Miller,
Chief Counsel.
[FR Doc. E8-18313 Filed 8-7-08; 8:45 am]
BILLING CODE 4910-57-P