Notice of Extension of Partial Buy America Waiver for Vans and Minivans, 90824-90826 [2024-26832]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Notices]
[Pages 90824-90826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26832]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2024-0007]


Notice of Extension of Partial Buy America Waiver for Vans and 
Minivans

AGENCY: Federal Transit Administration (FTA), Department of 
Transportation (DOT).

ACTION: Notice of extension of Buy America waiver.

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SUMMARY: Following consideration of comments, and because the Federal 
Transit Administration (FTA) has been unable to identify any 
manufacturer of non-Americans with Disabilities Act (ADA)-accessible 
vans and minivans that fully complies with Buy America, FTA is 
extending its partial, time-limited, general nonavailability waiver 
from the requirements of Buy America for a period of five years, or 
upon publication of a recission notice if FTA determines that a fully 
Buy America-compliant vehicle has become available, whichever occurs 
first. The waiver terms are described in this notice.

DATES: The waiver extension is applicable on November 18, 2024.

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

SUPPLEMENTARY INFORMATION: This notice grants an extension of FTA's 
October 25, 2022, partial general nonavailability waiver for mass-
produced, unmodified vans and minivans (87 FR 64534). The waiver 
extension will expire after five years, or upon publication of a 
recission notice if FTA determines that a fully Buy America-compliant 
vehicle has become available, whichever occurs first.

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 70901-70927). 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).
    FTA is issuing this waiver extension following its review of 
comments received in response to its Notice of FTA's Review of Its 
Partial Waiver of Buy America Requirements for Vans and Minivans and 
Request for Comment, published in the Federal Register on August 22, 
2024 (89 FR 68027).

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

[[Page 90825]]

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 for mass-produced, unmodified, non-ADA-accessible vans and 
minivans with seating capacity for at least six adults, not including 
the driver (87 FR 64534). 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). In lieu of applying the general 
Buy America standards for rolling stock, the 2022 waiver required the 
following:
    (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 also limited its 2022 waiver to expire automatically after two 
years.
    In its August 22, 2024, notice, FTA requested comments from all 
interested parties regarding whether FTA should extend the waiver, 
modify the waiver, or allow it to lapse. FTA also asked six questions 
related to the waiver, and requested that commenters, in answering the 
questions, explain the likely impacts of the suggested course of action 
for FTA on administering and delivering FTA-funded projects and on 
supporting domestic manufacturing and jobs. The questions are reprinted 
below.
    In accordance with subsection 70916(c) of the Build America, Buy 
America Act (BABA) (Title IX of the Infrastructure Investment and Jobs 
Act, Pub. L. 117-58), FTA consulted with the National Institute of 
Standards and Technology's Hollings Manufacturing Extension Partnership 
(MEP) concerning a possible waiver extension, which determined that no 
domestic entity currently manufactures the subject vans and minivans in 
compliance with Buy America requirements.

General Considerations

    FTA's August 22, 2024, notice posed the following questions to the 
public concerning a possible waiver extension.
    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.

Response to Comments

    FTA received 51 comments from 56 different commenters, including 
transit operators, associations, state departments of transportation, 
metropolitan planning organizations, and the general public. All but 
one comment supported extending the waiver.
    The comments in favor of an extension tended to be broadly 
supportive of the waiver and did not for the most part respond to 
specific questions FTA posed to the public. The supportive comments 
concurred that no known manufacturer currently meets all of FTA's Buy 
America requirements. Comments described the important role of vanpools 
to combat climate change, lower traffic congestion, and support 
commuters and equitable service, including service to the elderly, 
persons with disabilities that do not require ADA accessible vehicles, 
and rural communities for which full-sized buses are inappropriate. 
Comments from vanpool operators described their efforts to update or 
expand their aging fleets, and said they cannot succeed without an 
extension of the waiver. The supportive comments affirmed the necessity 
of extending the waiver to allow transit operators to continue 
purchasing vans and minivans using FTA grant funds.

Comment Opposed To Extending the Waiver

    The single comment opposed to extending the waiver stated: ``Buy 
America can rely on used van and minivan parts in junkyards across 
America that are being totally ignored''. The comment did not provide 
any further detail about the junkyard suggestion. While junk or salvage 
yards may be excellent sources for vehicle parts in some situations, 
FTA considers the junkyard option an impractical alternative for 
transit operators, who in almost all cases require new vehicles for 
their fleet purchases.

Requests To Lengthen the Waiver Period

    When FTA approved the 2022 waiver, it set the waiver to expire 
automatically after two years. Twenty-eight comments requested 
extending the waiver for a period longer than two-years. Five comments 
suggested a five-year extension. One of these comments said five years 
is an appropriate length because the relatively small percentage of 
vans and minivans purchased using FTA funds means the availability of 
Buy America-compliant vans or minivans is unlikely to change in the 
foreseeable future, and because a five-year review

[[Page 90826]]

period is what BABA specifies for general waivers. BABA Sec.  
70914(d)(1) (``An existing general applicability waiver or a general 
applicability waiver . . . shall be reviewed every 5 years after the 
date on which the waiver is issued''). One comment suggested that the 
waiver should be of indefinite duration, pending the availability of a 
Buy America-compliant product.
    FTA agrees with the comments that suggested a five-year extension. 
An expiration after five years accords with BABA's requirement that 
general waivers be reviewed quinquennially, and the Made in America 
Office's national policy that general waivers have expiration dates. 
FTA also agrees that the availability of Buy America-compliant vans or 
minivans is unlikely to change in the foreseeable future. Therefore, a 
waiver of a shorter duration would add uncertainty and administrative 
burdens by requiring more frequent extensions, without generating any 
public benefit. FTA can rescind the waiver at any time if a Buy 
America-compliant van or minivan becomes available before the end of 
the five years.

Support for Extending the Domestic Requirements of the 2022 Partial 
Waiver

    To maximize domestic content, the 2022 waiver required U.S. 
manufactured engines and final assembly. FTA sought comment from the 
public as to whether it should revise these requirements in a waiver 
extension.
    Twenty-seven comments recommended extending the waiver with the 
same domestic manufacturing requirements as the 2022 waiver. Comments 
generally supported the current waiver as maximizing domestic content 
among van and minivan options while at the same time allowing transit 
operators to replace or expand their fleets using FTA funds.
    Three comments asserted the requirements of the 2022 waiver are too 
restrictive. One of these comments said there is a shortage of vehicles 
that comply with the 2022 waiver, and this has led to difficulty 
expanding and updating vanpool fleets. However, this comment did not 
recommend any particular change to the waiver, and did not provide any 
specific data regarding how the requirements of the 2022 waiver have 
impaired the commenter's ability to replace or add vehicles.
    One comment suggested relaxing the restrictions in the 2022 waiver 
to allow manufacturing and assembly anywhere in North America. This 
comment suggested doing so would make more hybrid and electric vehicles 
available, but it did not identify particular models to which it was 
referring.
    Another comment requested that FTA eliminate the requirement that 
the vehicle's engine be manufactured in the United States. This comment 
stated the engine requirement excludes numerous vehicles that otherwise 
have high levels of domestic content according to the AALA reports.
    In response to these comments that requested that FTA relax the 
requirements of the 2022 waiver, FTA notes the following: 
Notwithstanding that relaxation of the waiver's requirements would 
result in a greater selection of vehicles to purchase, none of the 
commenters said they were unable to comply with the 2022 waiver's 
requirements, or that they have been unable to obtain the type of 
vehicles they require under the 2022 waiver. With regard to the comment 
that the engine requirement of the 2022 waiver excludes vehicles with 
high domestic content reported under the AALA, the AALA reports show a 
value for combined U.S. and Canadian content, not U.S. content by 
itself. Absent more specific information about the U.S. content in 
these excluded vehicles, it is difficult for FTA to weigh the relative 
benefits to U.S. industry of eliminating the engine requirement, and so 
FTA declines to revise the waiver in response to this comment.
    FTA agrees with the majority of comments that request maintaining 
the requirements of the 2022 waiver.

Other Comments

    Some comments raised issues that were not germane to the pending 
waiver proposal. Two comments complained in general terms about the 
cost of complying with Buy America. One comment claimed Buy America 
causes $30,000 to $40,000 of ``add-ons'' to the Ram ProMaster in order 
for the vehicle to achieve 70% domestic content by cost, and that this 
is pushing vehicles beyond affordability. These comments are beyond the 
scope of the present action. FTA is not proposing revisions to Buy 
America requirements generally; it is only considering a limited, 
partial waiver of Buy America requirements to allow the purchase of 
certain vans and minivans.
    Two comments complained that there exist vehicles with high 
domestic content, that are produced in the United States, but which the 
commenters cannot buy because of ``foreign ownership'' or ``because 
they are Japanese or Korean owned companies''. These comments appear to 
indicate a misunderstanding of Buy America and the 2022 waiver. Buy 
America's standards for rolling stock require a minimum percentage of 
U.S. components and subcomponents by cost and U.S. final assembly. 
Neither Buy America nor the 2022 waiver excludes vehicles based on the 
countries where their global brands are headquartered or historically 
originated.\1\
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    \1\ While this is true of Buy America requirements, there are 
other laws that restrict vehicle purchases based on the country 
where the vehicle manufacturer is headquartered or has corporate 
relations. See FTA's guidance regarding the National Defense 
Authorization Act of 2020: https://www.transit.dot.gov/funding/procurement/frequently-asked-questions-regarding-section-7613-national-defense.
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Finding on Waiver

    For the reasons stated in FTA's August 22, 2024, notice, and based 
on comments received from the public, FTA is extending the October 25, 
2022, waiver for vans and minivans.
    For mass-produced, unmodified non-ADA accessible vans and minivans 
with seating capacity for at least six adults not including the driver, 
in lieu of applying the Buy America standards for rolling stock, FTA 
will require:
    (1) Final assembly must be in the United States, as reported to 
NHTSA under the AALA; and
    (2) The country of origin of the engine (or electric vehicle motor) 
must be the United States, as reported to NHTSA under the AALA.
    The waiver is available to all FTA grant recipients. FTA recipients 
do not need to submit individual applications for nonavailability 
waivers for these vehicles. The waiver applies to contracts recipients 
award during the waiver period. This waiver expires five years after 
the effective date of this notice as published in the Federal Register. 
FTA will review this waiver twice during the waiver period to assess 
whether it remains necessary. Based on the results of that review, FTA 
will take such action as deemed appropriate, including but not limited 
to rescinding, or narrowing the scope or duration of the waiver.

Veronica Vanterpool,
Deputy Administrator.
[FR Doc. 2024-26832 Filed 11-15-24; 8:45 am]
BILLING CODE 4910-57-P