Notice of FTA's Review of Its Partial Waiver of Buy America Requirements for Vans and Minivans and Request for Comment, 68027-68028 [2024-18818]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 163 (Thursday, August 22, 2024)]
[Notices]
[Pages 68027-68028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18818]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2024-0007]


Notice of FTA's Review of Its Partial Waiver of Buy America 
Requirements for Vans and Minivans and Request for Comment

AGENCY: Federal Transit Administration, Department of Transportation.

ACTION: Notice; request for comment.

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SUMMARY: The Federal Transit Administration (FTA) is seeking comment on 
an extension of its existing partial general nonavailability waiver for 
mass-produced, unmodified, non-ADA accessible vans and minivans. 
Following review and consideration of comments, FTA will determine 
whether to extend the waiver, modify the waiver, or allow the waiver to 
lapse.

DATES: Comments must be received by September 23, 2024. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Please submit all comments electronically to the Federal 
eRulemaking Portal. Go to https://www.regulations.gov and follow the 
instructions for submitting comments.
    Instructions: All submissions must refer to the Federal Transit 
Administration and the docket number at the top of this notice. Note 
that all submissions received, including any personal information 
provided, will be posted without change and will be available to the 
public at https://www.regulations.gov. You may review DOT's complete 
Privacy Act Statement in the Federal Register published April 11, 2000 
(65 FR 19477), or at https://www.transportation.gov/privacy. 
Confidential Business Information may be protected following the 
procedures outlined at the end of this notice.

FOR FURTHER INFORMATION CONTACT: Jason Luebbers, FTA Attorney-Advisor, 
at (202) 366-8864 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to seek public 
comment on whether FTA should grant an extension to its October 25, 
2022, partial general nonavailability waiver for mass-produced, 
unmodified vans and minivans (87 FR 64534). If not extended, the waiver 
will expire after October 24, 2024.

Background

    On November 15, 2021, President Biden signed into law the Build 
America Buy America Act (BABA), enacted as Title IX of the 
Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, div. G, 
sections 70901-27). BABA requires Federal agencies periodically to 
review existing general applicability waivers of Buy America 
requirements by publishing in the Federal Register a notice that: (i) 
describes the justification for a general applicability waiver and (ii) 
requests public comments for a period of not less than 30 days on the 
continued need for the general applicability waiver. BABA section 
70914(d).
    Obtaining information through this notice and request for comment 
is consistent with the BABA requirement to review waivers of general 
applicability and will help FTA determine the current state of domestic 
production of vans and minivans prior to expiration of the partial 
general nonavailability waiver. Following the review of comments 
received, FTA will publish in the Federal Register a determination on 
whether it will renew the general applicability waiver, modify the 
waiver, or allow it to lapse. Through this notice, FTA describes the 
original justification for its partial general nonavailability waiver 
for mass-produced unmodified non-ADA-accessible vans and minivans and 
seeks public comment on whether it continues to be justified.

Partial General Buy America Waiver for Vans and Minivans

    Under FTA's Buy America statute (49 U.S.C. 5323(j)), FTA may 
obligate funds for a project to procure rolling stock only if the cost 
of components and subcomponents produced in the United States is more 
than 70 percent of the cost of all components of the rolling stock, and 
final assembly of the rolling stock occurs in the United States. 49 
U.S.C. 5323(j)(2)(C). A manufacturer of rolling stock must submit to 
pre-award and post-delivery audits and independent inspections to 
verify its compliance with Buy America. 49 U.S.C. 5323(m).
    On October 25, 2022, following multiple individual requests for a 
Buy America waiver for non-ADA-accessible vans or minivans that can be 
used in federally funded vanpool programs, FTA issued a partial, time-
limited, general nonavailability waiver from the Buy America 
requirements. FTA issued a partial waiver to maximize the use of 
materials produced in the United States, consistent with Executive 
Order 14005, Ensuring the Future Is Made in All of America by All of 
America's Workers (86 FR 7475). Specifically, FTA waived the Buy 
America requirements for mass-produced, unmodified, non-ADA-accessible 
vans and minivans with seating capacity for at least six adults, not 
including the driver. Eligible vehicles, in lieu of applying the 
general Buy America standards for rolling stock, must meet the 
following qualifications:
    (1) Final assembly must occur in the United States, as reported to 
the National Traffic Safety Administration (NHTSA) under the American 
Automobile Labeling Act (AALA); and
    (2) The country of origin of the engine or motor must be the United 
States, as reported to NHTSA under the AALA. See 49 U.S.C. 32304 and 49 
CFR part 583.
    FTA planned for the waiver to expire two years after the date of 
issuance, or upon FTA's publication of a Federal Register notice 
rescinding the waiver after determining that a fully Buy America-
compliant vehicle has become available, whichever occurred first. 
Unless FTA extends the waiver, the

[[Page 68028]]

waiver will expire after October 24, 2024.

Original Justification for General Waiver for Vans and Minivans

    In issuing its partial waiver, FTA struck a balance between making 
vanpool-capable vehicles available to public transportation providers 
and at the same time maximizing U.S. manufacturing activity in 
accordance with E.O. 14005. For example, although forty-nine commenters 
requested that FTA not require U.S.-manufactured engines or motors, FTA 
noted that a number of van and minivan models available at the time met 
the U.S. manufacturing requirement for engines or motors, and therefore 
maintained this requirement in the October 2022 waiver.
    Since FTA issued the waiver, FTA has received no new information 
suggesting that unmodified vans and minivans that comply with Buy 
America are produced in the United States in a sufficient and 
reasonably available amount. While a number of manufacturers continue 
to produce commercial vehicles meeting the domestic manufacturing 
requirements of FTA's waiver--that is, U.S. final assembly and U.S. 
manufacture of the engine or motor--no manufacturer has notified FTA of 
such a vehicle fully meeting the Buy America requirements. Further, no 
manufacturer has submitted a vehicle model for a Buy America pre-award 
audit.

Requests From the Public To Extend the Waiver

    On November 13, 2023, the Association for Commuter Transportation 
(ACT) requested that FTA extend the current van and minivan waiver in 
order to avoid a significant disruption to vanpool services. ACT (on 
behalf of its government, metropolitan planning organization, higher 
education institution, and service provider members) requested that FTA 
engage stakeholders to identify a path forward that avoids a disruption 
of vanpool programs while also upholding the spirit and intent of the 
Buy America rules. In addition to the ACT request, FTA has received 
numerous, less formal requests from transit operators in the form of 
emails, phone calls, and in-person contacts during meetings or 
conferences to maintain the waiver.

Questions on FTA's General Waiver for Vans and Minivans

    FTA is soliciting comments from the public, including public and 
private stakeholders, regarding whether it should extend, modify, or 
allow the partial van and minivan waiver to lapse. In answering the 
questions below, please also explain the likely impacts of your 
suggested course of action for FTA on administering and delivering FTA-
funded projects and on supporting domestic manufacturing and jobs.

General Considerations

    1. Are there any unmodified non-ADA-accessible vans or minivans 
with seating capacity for at least six adults, not including the 
driver, for which the cost of components and subcomponents produced in 
the United States is more than 70 percent of the cost of all 
components, and final assembly of the vehicle occurs in the United 
States?
    a. If so, which vehicles?
    b. If so, in what quantity are they available?
    2. Do the market conditions that led to FTA's decision to issue the 
partial van and minivan waiver still exist and, if so, do they warrant 
continuing the waiver?
    3. What actions could FTA take, if any, to promote the domestic 
production of Buy America-compliant vans and minivans?
    4. Is there a publicly available source better suited than AALA 
reports (https://www.nhtsa.gov/part-583-american-automobile-labeling-act-reports) to determine the domestic content and country of final 
assembly for vans and minivans? If so, please specify the data source 
and explain why it is preferred.

Considerations for Modifying the Waiver

    5. If FTA were to modify the van and minivan waiver, what would be 
the likely impact on administering and delivering Federal transit 
projects? In what ways could modifications to the waiver promote or 
hinder the effective and efficient delivery of Federal transit projects 
across the United States? As examples, commenters may wish to consider 
the following modifications to the van and minivan waiver, specifying 
the likely impact of each and explaining why that impact is likely to 
occur:
    a. In addition to engines and motors, require U.S.-manufactured 
transmissions as reported to NHTSA under the AALA.
    b. Add a requirement that a vehicle contain some minimum percentage 
of ``Content US/Canada,'' as defined by and reported to NHTSA under the 
AALA.
    6. FTA is also interested in any other proposals to modify the 
waiver not listed here that would meet the goals of promoting the 
efficient delivery of Federal transit projects and supporting domestic 
manufacturing and jobs. For each proposal, please explain how the 
waiver modification proposed achieves both goals and provide supporting 
information or documentation, where applicable.

Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this notice contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this notice, it is important that you 
clearly designate the submitted comments as CBI. You may ask FTA to 
give confidential treatment to information you give to the agency by 
taking the following steps: (1) mark each page of the original document 
submission containing CBI as ``Confidential''; (2) send FTA, along with 
the original document, a second copy of the original document with the 
CBI deleted; and (3) explain why the information you are submitting is 
CBI. FTA will protect confidential information complying with these 
requirements to the extent required by applicable law. If DOT receives 
a FOIA request for information that the submitter has marked in 
accordance with this notice, DOT will follow the procedures described 
in DOT's FOIA regulations at 49 CFR 7.29. Any information that is 
marked in accordance with this notice and ultimately determined to be 
exempt from disclosure under FOIA and Sec.  7.29 will not be released 
to a requester or placed in the public docket of this notice. 
Submissions containing CBI should be sent to [email protected]. 
Any comment submissions that FTA receives that are not specifically 
designated as CBI will be placed in the public docket for this matter.
    FTA encourages commenters to share all information responsive to 
the questions below, including confidential information. Doing so will 
allow FTA to have a complete picture of the effects of continuing, 
discontinuing, or modifying the existing partial general applicability 
waiver for vans and minivans.

Veronica Vanterpool,
Acting Administrator.
[FR Doc. 2024-18818 Filed 8-21-24; 8:45 am]
BILLING CODE 4910-57-P