Notice of Proposed Buy America Waiver for Minivans, 30602-30604 [2016-11571]
Download as PDF
30602
Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Notices
1997, https://www.fhwa.dot.gov/
programadmin/contracts/122297.cfm).
A waiver of the Buy America
requirement without any regard to
where the vehicle is assembled would
diminish the purpose of the Buy
America requirement. Moreover, in
today’s economic environment, the Buy
America requirement is especially
significant in that it will ensure that
Federal Highway Trust Fund dollars are
used to support and create jobs in the
U.S. This approach is similar to the
conditional waivers previously given for
various vehicle projects. Thus, so long
as the final assembly of the 34 State
projects occurs in the U.S., applicants to
this waiver request may proceed to
purchase these vehicles and equipment
consistent with the Buy America
requirement.
In accordance with the provisions of
section 117 of the Safe, Accountable,
Flexible, Efficient Transportation Equity
Act: A Legacy for Users, Technical
Corrections Act of 2008 (Pub. L. 110–
244), FHWA is providing this notice of
its finding that a public interest waiver
of Buy America requirements is
appropriate on the condition that the
vehicles and equipment identified in
the notice be assembled in the U.S. The
FHWA invites public comment on this
finding for an additional 15 days
following the effective date of the
finding. Comments may be submitted to
FHWA’s Web site via the link provided
to the waiver page noted above.
Authority: 23 U.S.C. 313; PL 110–161; 23
CFR 635.410.
Issued on: May 9, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway
Administration.
[FR Doc. 2016–11579 Filed 5–16–16; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Buy America Waiver Notification
Federal Highway
Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice.
AGENCY:
This notice provides
information regarding FHWA’s finding
that a Buy America waiver is
appropriate for the use of non-domestic
motor and machinery brakes (maximum
torque 100 ft-lb, wheel size 8 inches) for
the rehabilitation of a bascule bridge in
Port Clinton, Ohio.
DATES: The effective date of the waiver
is May 18, 2016.
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For
questions about this notice, please
contact Mr. Gerald Yakowenko, FHWA
Office of Program Administration, 202–
366–1562, or via email at
gerald.yakowenko@dot.gov. For legal
questions, please contact Ms. Jennifer
Mayo, FHWA Office of the Chief
Counsel, 202–366–1523, or via email at
jennifer.mayo@dot.gov. Office hours for
the FHWA are from 8:00 a.m. to 4:30
p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Electronic Access
An electronic copy of this document
may be downloaded from the Federal
Register’s home page at https://
www.archives.gov and the Government
Printing Office’s database at https://
www.access.gpo.gov/nara.
Background
The FHWA’s Buy America policy in
23 CFR 635.410 requires a domestic
manufacturing process for any steel or
iron products (including protective
coatings) that are permanently
incorporated in a Federal-aid
construction project. The regulation also
provides for a waiver of the Buy
America requirements when the
application would be inconsistent with
the public interest or when satisfactory
quality domestic steel and iron products
are not sufficiently available. This
notice provides information regarding
FHWA’s finding that a Buy America
waiver is appropriate for use of nondomestic motor and machinery brake
systems (maximum torque 100 ft-lb,
wheel size 8 inches) for rehabilitation of
a bascule bridge in Port Clinton, Ohio.
In accordance with Division K,
section 122 of the Consolidated and
Further Continuing Appropriations Act
of 2015 (Pub. L. 113–235), FHWA
published a notice of intent to issue a
waiver on its Web site (https://
www.fhwa.dot.gov/construction/
contracts/waivers.cfm?id=121 ) on
March 22nd. The FHWA received no
comments in response to the
publication. Based on all the
information available to the agency,
FHWA concludes that there are no
domestic manufacturers of motor and
machinery brake systems (maximum
torque 100 ft-lb, wheel size 8 inches) for
rehabilitation of the bascule bridge in
Port Clinton, Ohio.
In accordance with the provisions of
section 117 of the SAFETEA–LU
Technical Corrections Act of 2008 (Pub.
L. 110–244), FHWA is providing this
notice that a waiver of Buy America
requirements is appropriate. The FHWA
invites public comment on this finding
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for an additional 15 days following the
effective date of the finding. Comments
may be submitted to FHWA’s Web site
via the link provided to the waiver page
noted above.
Authority: 23 U.S.C. 313; Public Law 110–
161, 23 CFR 635.410.
Issued on: May 9, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway
Administration.
[FR Doc. 2016–11578 Filed 5–16–16; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA–2016–0025]
Notice of Proposed Buy America
Waiver for Minivans
AGENCY:
Federal Transit Administration,
DOT.
Notice of proposed Buy America
waiver and request for comment.
ACTION:
The Federal Transit
Administration (FTA) received a formal
request from the Pace Suburban Bus
Division of the Regional Transportation
Authority (Pace) for a Buy America nonavailability waiver to purchase 188
Dodge Caravan minivans for its vanpool
program. Minivans are considered
rolling stock and are subject to the Buy
America waiver set forth in 49 U.S.C.
5323(j)(2)(C), which requires that
minivans (i) contain more than 60
percent domestic content, and (ii) final
assembly of the vehicles occurs in the
United States. Although initially Pace
sought only a waiver of the requirement
that final assembly take place in the
United States, Pace now seeks a waiver
of both requirements. Because FTA is
aware of at least four manufacturers that
can meet the final assembly
requirement, however, FTA is proposing
a waiver of only the domestic content
requirement for non-ADA-accessible
minivans. This waiver would apply to
all procurements of non-ADA-accessible
minivans by any FTA grantee and
would be limited to contracts entered
into before September 30, 2019 or until
a fully compliant domestic source
becomes available, whichever is earlier.
In accordance with 49 U.S.C.
5323(j)(3)(A), FTA is providing notice of
this proposed waiver and seeks public
and industry comment on whether FTA
should grant the waiver.
DATES: Comments must be received by
May 31, 2016. Late-filed comments will
be considered to the extent practicable.
SUMMARY:
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Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Notices
Please submit your
comments by one of the following
means, identifying your submissions by
docket number FTA–2016–0025:
1. Web site: https://
www.regulations.gov. Follow the
instructions for submitting comments
on the U.S. Government electronic
docket site.
2. Fax: (202) 493–2251.
3. Mail: U.S. Department of
Transportation, 1200 New Jersey
Avenue SE., Docket Operations, M–30,
West Building, Ground Floor, Room
W12–140, Washington, DC 20590–0001.
4. Hand Delivery: U.S. Department of
Transportation, 1200 New Jersey
Avenue SE., Docket Operations, M–30,
West Building, Ground Floor, Room
W12–140, Washington, DC 20590–0001
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: All submissions must
make reference to the ‘‘Federal Transit
Administration’’ and include docket
number FTA–2016–0025. Due to the
security procedures in effect since
October 2011, mail received through the
U.S. Postal Service may be subject to
delays. Parties making submissions
responsive to this notice should
consider using an express mail firm to
ensure the prompt filing of any
submissions not filed electronically or
by hand. Note that all submissions
received, including any personal
information therein, will be posted
without change or alteration to https://
www.regulations.gov. For more
information, you may review DOT’s
complete Privacy Act Statement in the
Federal Register published April 11,
2000 (65 FR 19477), or you may visit
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Laura Ames, FTA Attorney-Advisor, at
(202) 366–2743 or Laura.Ames@dot.gov.
SUPPLEMENTARY INFORMATION: By way of
background, Pace operates a vanpool
program in the Chicago suburban area
with more than 785 vehicles in service.
A vanpool vehicle is defined, in
pertinent part, as a vehicle with a
seating capacity of at least six adults
(not including the driver). See 49 U.S.C.
5323(i)(2)(C)(ii).
In October 2014, Pace issued an
invitation for bid (IFB) for a five-year
contract for the purchase of sevenperson minivans. The successful bidder,
Napoleon Fleet, Inc., proposed
providing Chrysler Dodge Caravan
minivans, but certified that the vehicles
were not compliant with the Buy
America requirement that the vehicles
be assembled in the United States.
Chrysler manufactures its minivans in
Windsor, Ontario, Canada. On April 15,
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2015, Pace requested a Buy America
non-availability waiver for the
procurement of 188 Dodge Caravan
minivans based on the final assembly
requirement only. Pace believed that the
vehicles it proposed to purchase met the
domestic content requirement.
In August 2015 and November 2015,
Pace conducted pre-award Buy America
audits of the Dodge Caravan minivans
and discovered that Chrysler did not
meet the current domestic content
requirement of more than 60%. Pace
notified FTA that the audit showed a
57.4% domestic content for 2015
minivans and only 52% domestic
content for 2016 minivans. Pace,
therefore, is requesting a waiver on the
grounds that a seven-person minivan
that complies with Buy America’s
domestic content and final assembly
requirements is not available.
In addition to the request from Pace,
FTA has received inquiries from other
grantees and manufacturers about the
asserted non-availability of minivans for
their vanpool fleet that meet both
requirements of Buy America.
Therefore, FTA proposes to grant a
general Buy America waiver from the
domestic content requirement for nonADA-accessible minivans procured
pursuant to contracts entered into before
September 30, 2019, or until a fullycompliant domestic source becomes
available, whichever is earlier.
With certain exceptions, FTA’s Buy
America statute prevents 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). A manufactured
product is considered produced in the
United States if: (1) All of the
manufacturing processes for the product
must take place in the United States;
and (2) All of the components of the
product must be of U.S. origin. A
component is considered of U.S. origin
if it is manufactured in the United
States, regardless of the origin of its
subcomponents. 49 CFR 661.5(d). If,
however, FTA determines that ‘‘the
steel, iron, and goods produced in the
United States are not produced in a
sufficient and reasonably available
amount or are not of a satisfactory
quality,’’ then FTA may issue a waiver
(non-availability waiver). 49 U.S.C.
5323(j)(2)(B); 49 CFR 661.7(c).
The requirement that manufactured
goods be produced in the United State
may be waived for rolling stock if (i) the
cost of components and subcomponents
produced in the United States for fiscal
years 2016 and 2017 is more than 60
percent of the cost of all components of
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30603
the rolling stock; and (ii) final assembly
of the rolling stock occurs in the United
States.1 49 U.S.C. 5323(j)(2)(C).
FTA funds the procurement of
between 2,500 and 3,000 minivans
annually, including both ADAaccessible vans and non-ADA-accessible
vans. The challenges associated with
buying minivans that comply with
FTA’s Buy America statute and
regulations have been well documented
over the past six years. In 2010, El
Dorado National, Kansas and Chrysler
Group LLC petitioned FTA for a waiver
of the Buy America final assembly
requirement. In response to the request
FTA published a notice in the Federal
Register, seeking comment from all
interested parties. Numerous parties
responded to the notice expressing
support for the waiver. One
manufacturer, Honda, indicated that its
minivans were in compliance with the
Buy America regulations but would not
provide the additional information
needed to support its claims.
Ultimately, on June 21, 2010, FTA
issued a blanket waiver of the Buy
America final assembly requirements for
minivans and minivan chassis. See 75
FR 35123, (June 21, 2010).
On November 27, 2012, FTA
rescinded the non-availability waiver
for minivans, finding that the
manufacturer of the MV–1 was a
domestic manufacturer of eligible
paratransit vehicles and could meet
both the domestic content and the final
assembly requirements for rolling stock
under Buy America. See 75 FR 71676,
(November 24, 2010). Although FTA
acknowledged that the MV–1 minivan is
a wheelchair-lift equipped minivan and
does not provide the seating capacity
needed for vanpool programs, FTA did
not continue the blanket waiver for
these vehicles, noting that it ‘‘prefers to
consider waiver requests for limited
circumstances and on procurement-byprocurement basis . . . .’’ Id.
On November 27, 2013, FTA issued a
one-time, limited Buy America waiver
of the final assembly requirement to the
North Front Range Metropolitan
Planning Organization (NFRMPO), for
the purchase of 25 seven-passenger
minivans, based upon non-availability.
See 78 FR 71025, (November 27, 2013).
FTA rejected comments suggesting that
it reinstate the 2012 blanket waiver for
seven-person minivans, and instead
issued a waiver for final assembly for
1 Under recent amendments to 49 U.S.C.
5323(j)(2)(C), if the minivans are delivered in
FY2018 or FY2019, the domestic content will
increase to more than 65 percent and if delivered
in FY2020 or beyond, the domestic content will
increase to more than 70 percent.
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Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Notices
NFRMPO’s purchase of up to 25
minivans.
The market for non-ADA accessible
minivans has changed since 2013. In
2013, the Chrysler minivan met the
domestic content requirements but was
not assembled in the United States. FTA
issued a non-availability waiver for final
assembly because more than 60 percent
of the minivan’s components were
produced in the United States. Today,
Chrysler does not meet either Buy
America requirements. However, there
are at least four manufacturers—GMC,
Ford, Honda and Toyota—that make
non-ADA-accessible minivans that are
assembled in the U.S.2
Because there are at least four
minivans manufacturers who assemble
their vehicles in the United States, FTA
will not grant Pace a non-availability
waiver for both final assembly and
domestic content. Instead, in order to
maintain U.S. jobs and obtain the
benefits of the Buy America statute,
FTA proposes to grant a general waiver
of only the domestic content
requirement for non-ADA-accessible
minivans. This waiver would apply to
all procurements of non-ADA-accessible
minivans and is limited to contracts
entered into before September 30, 2019
or until a fully-compliant domestic
source becomes available, whichever is
earlier. Because the non-ADA-accessible
minivans are production line vehicles
sold to the general public (i.e., they are
not designed and manufactured
specifically to be purchased using
Federal funds), and those sales
substantially outnumber purchases with
Federal funds, manufacturers have been
reluctant to subject their vehicles to the
pre-award and post-delivery audit
requirements in 49 CFR part 663 to
verify their domestic content. FTA seeks
comments on whether manufacturers
would consider submitting to a preaward and post-delivery audit process
that was conducted by FTA on each
new model year, as opposed to requiring
audits for each individual procurement.
This waiver would not apply to ADAaccessible minivans because such
vehicles are available that meet the Buy
America requirements.
FTA is publishing this Notice to seek
public and industry comment from all
interested parties in accordance with 49
U.S.C. 5323(j)(3)(A). Such information
and comments will help FTA
understand completely the facts
surrounding the request, including the
2 This information is from the 2016 report
submitted by car manufacturers to the National
Highway Transportation Safety Administration
(NHTSA) under the American Automobile Labeling
Act. A copy of the report is posted on NHTSA’s
Web site at https://www.nhtsa.gov.
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merits of the request. A full copy of the
request has been placed in docket
number FTA–2016–0025.
Ellen Partridge,
Chief Counsel.
[FR Doc. 2016–11571 Filed 5–16–16; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Safety Advisory 16–2]
Contact Rail (Third Rail) System
Hazards
Federal Transit Administration
(FTA), Department of Transportation
(DOT).
ACTION: Notice of Safety Advisory.
AGENCY:
The Federal Transit
Administration (FTA) issued Safety
Advisory 16–2 regarding contact rail
system hazards on rail fixed guideway
public transportation systems
(RFGPTSs). A letter to the Managers of
State Safety Oversight (SSO) programs
with RFGPTSs that use a contact rail
system, was also issued requesting data
and information on contact rail system
hazards occurring during calendar year
2015. Safety Advisory 16–2 and the
accompanying letter are available in
their entirety on the FTA public Web
site at https://www.fta.dot.gov/tso.html.
DATES: FTA is asking the managers of
the SSO programs to submit the
requested data and information 90 days
from issuance of the advisory.
FOR FURTHER INFORMATION CONTACT: For
program matters, Sam Shelton, Office of
System Safety, telephone (202) 366–
0815 or Sam.Shelton@dot.gov. For legal
matters, Scott Biehl, Senior Counsel,
telephone (202) 366–0826 or
Scott.Biehl@dot.gov.
SUPPLEMENTARY INFORMATION:
Nationwide, 13 RFGPTS operate and
maintain contact rail traction power
electrification (TPE) systems to power
trains that move millions of daily
passengers in some of the nation’s
largest cities. Recently, the FTA has
investigated several safety events related
to failures of contact rail TPE systems,
including:
• Smoke events caused by arcing
insulators and traction power cable
fires;
• An explosion caused by a flashover
on porcelain insulators;
• A high-intensity fire caused by an
electrical short circuit that resulted in
the total loss of a traction power
substation and major service
disruptions;
SUMMARY:
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• Damage to electrical propulsion
equipment on dozens of railcars caused
by spiking voltage that significantly
impacted passenger service; and
• Poor track conditions exacerbated
by electrolysis and corrosion from stray
current, which degraded anchor bolts
and fasteners to the point of failure in
a tunnel.
The FTA finds sufficient evidence
that each SSOA with an RFGPTS
operating and maintaining a contact rail
TPE system should investigate potential
hazards associated with these systems
through its hazard management program
specified at 49 CFR 659.31. Further, in
accordance with its authority at 49 CFR
659.39(d) to periodically request
program information from the SSOAs,1
the FTA asks these SSOAs to collect the
information requested below.
(1) A brief description of the RFGPTS
contact rail TPE system and
components.
(2) A brief description regarding any
major changes or upgrades to the
contact rail TPE system made over the
last 10 years and whether the traction
power cables were also upgraded.
(3) A brief description of the RFGPTS
preventive maintenance program in
place to determine the insulation
integrity of traction power feeder cables
(i.e., meggering, hipot testing, metering
or other testing program). If such a
program does not exist, or has been
modified or eliminated, please explain
in the response.
(4) The approximate percentage of
traction power feeder cables used by the
RFGPTS that are low smoke and zero
halogen emission cables. Please specify
the type and manufacturer.
(5) A brief description of the
construction and installation processes
used to manage potential impacts of
vibration, friction, rubbing, etc. on
traction power cables, and whether
protective matting is used for cables
lying along the ballast and tunnel invert.
(6) A listing of any corrective action
plans (CAPs) required and approved by
the SSOA related to the traction power
electrification system since calendar
year 2012 and their status, to include
both open and closed CAPs.
(7) A copy of the RFGPTS inspection,
testing, and maintenance program
manual for its contact rail TPE system.
(8) The RFGPTS definition of ‘‘arcing
insulator.’’
1 Please note, on March 16, 2016, FTA issued a
final rule for State Safety Oversight that will
eventually replace the longstanding regulations at
49 CFR part 659. See, 81 FR 14230–62. SSOAs and
RFGPTSs must continue to comply with 49 CFR
part 659, however, until they come into compliance
with the new regulations, which have been codified
at 49 CFR part 674.
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Agencies
[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Notices]
[Pages 30602-30604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11571]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2016-0025]
Notice of Proposed Buy America Waiver for Minivans
AGENCY: Federal Transit Administration, DOT.
ACTION: Notice of proposed Buy America waiver and request for comment.
-----------------------------------------------------------------------
SUMMARY: The Federal Transit Administration (FTA) received a formal
request from the Pace Suburban Bus Division of the Regional
Transportation Authority (Pace) for a Buy America non-availability
waiver to purchase 188 Dodge Caravan minivans for its vanpool program.
Minivans are considered rolling stock and are subject to the Buy
America waiver set forth in 49 U.S.C. 5323(j)(2)(C), which requires
that minivans (i) contain more than 60 percent domestic content, and
(ii) final assembly of the vehicles occurs in the United States.
Although initially Pace sought only a waiver of the requirement that
final assembly take place in the United States, Pace now seeks a waiver
of both requirements. Because FTA is aware of at least four
manufacturers that can meet the final assembly requirement, however,
FTA is proposing a waiver of only the domestic content requirement for
non-ADA-accessible minivans. This waiver would apply to all
procurements of non-ADA-accessible minivans by any FTA grantee and
would be limited to contracts entered into before September 30, 2019 or
until a fully compliant domestic source becomes available, whichever is
earlier. In accordance with 49 U.S.C. 5323(j)(3)(A), FTA is providing
notice of this proposed waiver and seeks public and industry comment on
whether FTA should grant the waiver.
DATES: Comments must be received by May 31, 2016. Late-filed comments
will be considered to the extent practicable.
[[Page 30603]]
ADDRESSES: Please submit your comments by one of the following means,
identifying your submissions by docket number FTA-2016-0025:
1. Web site: https://www.regulations.gov. Follow the instructions
for submitting comments on the U.S. Government electronic docket site.
2. Fax: (202) 493-2251.
3. Mail: U.S. Department of Transportation, 1200 New Jersey Avenue
SE., Docket Operations, M-30, West Building, Ground Floor, Room W12-
140, Washington, DC 20590-0001.
4. Hand Delivery: U.S. Department of Transportation, 1200 New
Jersey Avenue SE., Docket Operations, M-30, West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001 between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
Instructions: All submissions must make reference to the ``Federal
Transit Administration'' and include docket number FTA-2016-0025. Due
to the security procedures in effect since October 2011, mail received
through the U.S. Postal Service may be subject to delays. Parties
making submissions responsive to this notice should consider using an
express mail firm to ensure the prompt filing of any submissions not
filed electronically or by hand. Note that all submissions received,
including any personal information therein, will be posted without
change or alteration to https://www.regulations.gov. For more
information, you may review DOT's complete Privacy Act Statement in the
Federal Register published April 11, 2000 (65 FR 19477), or you may
visit https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Laura Ames, FTA Attorney-Advisor, at
(202) 366-2743 or Laura.Ames@dot.gov.
SUPPLEMENTARY INFORMATION: By way of background, Pace operates a
vanpool program in the Chicago suburban area with more than 785
vehicles in service. A vanpool vehicle is defined, in pertinent part,
as a vehicle with a seating capacity of at least six adults (not
including the driver). See 49 U.S.C. 5323(i)(2)(C)(ii).
In October 2014, Pace issued an invitation for bid (IFB) for a
five-year contract for the purchase of seven-person minivans. The
successful bidder, Napoleon Fleet, Inc., proposed providing Chrysler
Dodge Caravan minivans, but certified that the vehicles were not
compliant with the Buy America requirement that the vehicles be
assembled in the United States. Chrysler manufactures its minivans in
Windsor, Ontario, Canada. On April 15, 2015, Pace requested a Buy
America non-availability waiver for the procurement of 188 Dodge
Caravan minivans based on the final assembly requirement only. Pace
believed that the vehicles it proposed to purchase met the domestic
content requirement.
In August 2015 and November 2015, Pace conducted pre-award Buy
America audits of the Dodge Caravan minivans and discovered that
Chrysler did not meet the current domestic content requirement of more
than 60%. Pace notified FTA that the audit showed a 57.4% domestic
content for 2015 minivans and only 52% domestic content for 2016
minivans. Pace, therefore, is requesting a waiver on the grounds that a
seven-person minivan that complies with Buy America's domestic content
and final assembly requirements is not available.
In addition to the request from Pace, FTA has received inquiries
from other grantees and manufacturers about the asserted non-
availability of minivans for their vanpool fleet that meet both
requirements of Buy America. Therefore, FTA proposes to grant a general
Buy America waiver from the domestic content requirement for non-ADA-
accessible minivans procured pursuant to contracts entered into before
September 30, 2019, or until a fully-compliant domestic source becomes
available, whichever is earlier.
With certain exceptions, FTA's Buy America statute prevents 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). A manufactured product is considered produced in the United
States if: (1) All of the manufacturing processes for the product must
take place in the United States; and (2) All of the components of the
product must be of U.S. origin. A component is considered of U.S.
origin if it is manufactured in the United States, regardless of the
origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA
determines that ``the steel, iron, and goods produced in the United
States are not produced in a sufficient and reasonably available amount
or are not of a satisfactory quality,'' then FTA may issue a waiver
(non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
The requirement that manufactured goods be produced in the United
State may be waived for rolling stock if (i) the cost of components and
subcomponents produced in the United States for fiscal years 2016 and
2017 is more than 60 percent of the cost of all components of the
rolling stock; and (ii) final assembly of the rolling stock occurs in
the United States.\1\ 49 U.S.C. 5323(j)(2)(C).
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\1\ Under recent amendments to 49 U.S.C. 5323(j)(2)(C), if the
minivans are delivered in FY2018 or FY2019, the domestic content
will increase to more than 65 percent and if delivered in FY2020 or
beyond, the domestic content will increase to more than 70 percent.
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FTA funds the procurement of between 2,500 and 3,000 minivans
annually, including both ADA-accessible vans and non-ADA-accessible
vans. The challenges associated with buying minivans that comply with
FTA's Buy America statute and regulations have been well documented
over the past six years. In 2010, El Dorado National, Kansas and
Chrysler Group LLC petitioned FTA for a waiver of the Buy America final
assembly requirement. In response to the request FTA published a notice
in the Federal Register, seeking comment from all interested parties.
Numerous parties responded to the notice expressing support for the
waiver. One manufacturer, Honda, indicated that its minivans were in
compliance with the Buy America regulations but would not provide the
additional information needed to support its claims. Ultimately, on
June 21, 2010, FTA issued a blanket waiver of the Buy America final
assembly requirements for minivans and minivan chassis. See 75 FR
35123, (June 21, 2010).
On November 27, 2012, FTA rescinded the non-availability waiver for
minivans, finding that the manufacturer of the MV-1 was a domestic
manufacturer of eligible paratransit vehicles and could meet both the
domestic content and the final assembly requirements for rolling stock
under Buy America. See 75 FR 71676, (November 24, 2010). Although FTA
acknowledged that the MV-1 minivan is a wheelchair-lift equipped
minivan and does not provide the seating capacity needed for vanpool
programs, FTA did not continue the blanket waiver for these vehicles,
noting that it ``prefers to consider waiver requests for limited
circumstances and on procurement-by-procurement basis . . . .'' Id.
On November 27, 2013, FTA issued a one-time, limited Buy America
waiver of the final assembly requirement to the North Front Range
Metropolitan Planning Organization (NFRMPO), for the purchase of 25
seven-passenger minivans, based upon non-availability. See 78 FR 71025,
(November 27, 2013). FTA rejected comments suggesting that it reinstate
the 2012 blanket waiver for seven-person minivans, and instead issued a
waiver for final assembly for
[[Page 30604]]
NFRMPO's purchase of up to 25 minivans.
The market for non-ADA accessible minivans has changed since 2013.
In 2013, the Chrysler minivan met the domestic content requirements but
was not assembled in the United States. FTA issued a non-availability
waiver for final assembly because more than 60 percent of the minivan's
components were produced in the United States. Today, Chrysler does not
meet either Buy America requirements. However, there are at least four
manufacturers--GMC, Ford, Honda and Toyota--that make non-ADA-
accessible minivans that are assembled in the U.S.\2\
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\2\ This information is from the 2016 report submitted by car
manufacturers to the National Highway Transportation Safety
Administration (NHTSA) under the American Automobile Labeling Act. A
copy of the report is posted on NHTSA's Web site at https://www.nhtsa.gov.
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Because there are at least four minivans manufacturers who assemble
their vehicles in the United States, FTA will not grant Pace a non-
availability waiver for both final assembly and domestic content.
Instead, in order to maintain U.S. jobs and obtain the benefits of the
Buy America statute, FTA proposes to grant a general waiver of only the
domestic content requirement for non-ADA-accessible minivans. This
waiver would apply to all procurements of non-ADA-accessible minivans
and is limited to contracts entered into before September 30, 2019 or
until a fully-compliant domestic source becomes available, whichever is
earlier. Because the non-ADA-accessible minivans are production line
vehicles sold to the general public (i.e., they are not designed and
manufactured specifically to be purchased using Federal funds), and
those sales substantially outnumber purchases with Federal funds,
manufacturers have been reluctant to subject their vehicles to the pre-
award and post-delivery audit requirements in 49 CFR part 663 to verify
their domestic content. FTA seeks comments on whether manufacturers
would consider submitting to a pre-award and post-delivery audit
process that was conducted by FTA on each new model year, as opposed to
requiring audits for each individual procurement.
This waiver would not apply to ADA-accessible minivans because such
vehicles are available that meet the Buy America requirements.
FTA is publishing this Notice to seek public and industry comment
from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A).
Such information and comments will help FTA understand completely the
facts surrounding the request, including the merits of the request. A
full copy of the request has been placed in docket number FTA-2016-
0025.
Ellen Partridge,
Chief Counsel.
[FR Doc. 2016-11571 Filed 5-16-16; 8:45 am]
BILLING CODE 4910-57-P