Notice of Proposed Buy America Waiver and Request for Comment Publication: Federal Register Signing Official: Nuria I. Fernandez Agency: Federal Transit Administration Date: 19 July 2022

[Federal Register Volume 87, Number 137 (Tuesday, July 19, 2022)]
[Notices]
[Pages 43101-43102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15356]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2022-0013]


Notice of Proposed Buy America Waiver and Request for Comment

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

ACTION: Notice; request for comment.

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SUMMARY: The Federal Transit Administration (FTA) has received multiple 
individual requests for a Buy America waiver for non-ADA accessible 
passenger vans and minivans that can be used in vanpool programs, based 
on the nonavailability of Buy America-compliant vehicles. FTA is 
proposing a partial general nonavailability waiver of limited duration 
for mass-produced, unmodified non-ADA accessible vans and minivans. 
Under FTA's proposal, in lieu of applying Buy America's rolling stock 
standard to these vans and minivans, FTA would require the vans and 
minivans to have their place of final assembly and engine country of 
origin in the United States as reported under the American Automobile 
Labeling Act. FTA proposes that this partial waiver will expire after 
two years, or when a compliant vehicle becomes available, whichever is 
first. FTA seeks public and industry comment on whether FTA should 
grant the waiver as proposed, or in a modified form.

DATES: Comments must be received by August 3, 2022. Late-filed comments 
will be considered only 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 in this notice (FTA-2022-0013). 
Note that all submissions received, including any personal information 
provided, will be posted without change and will be available to the 
public on 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.

FOR FURTHER INFORMATION CONTACT: Jason Luebbers, FTA Attorney-Advisor, 
at (202) 366-8864 or Jason.Luebbers@dot.gov.

SUPPLEMENTARY INFORMATION: The purpose of this notice is to seek public 
comment on whether FTA should grant a partial Buy America waiver of 
limited duration for the procurement of mass-produced, unmodified 
(complete and fully assembled as provided by the original equipment 
manufacturer) non-ADA accessible passenger vans and minivans.

Background

    Under FTA's Buy America statute, 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).
    FTA may waive Buy America requirements for a product if, among 
other reasons, a compliant version of the product is not produced in a 
sufficient and reasonably available amount or is not of a satisfactory 
quality. 49 U.S.C. 5323(j)(2)(B). FTA cannot deny a request for a 
nonavailability waiver unless it can provide the waiver applicant with 
a written certification that: the item is produced in the United States 
in a sufficient and reasonably available amount; the item produced in 
the United States is of a satisfactory quality; and includes a list of 
known manufacturers in the United States from which the item can be 
obtained. 49 U.S.C. 5323(j)(6).
    On October 20, 2016, FTA granted a general public interest waiver 
for mass-produced, unmodified non-ADA-accessible vans and minivans, 
only from its domestic content requirement, for three years or until a 
compliant manufacturer came forward, whichever came first. (https://www.govinfo.gov/content/pkg/FR-2016-10-20/pdf/2016- 25370.pdf). At that 
time FTA had identified some models of van or minivan for which final 
assembly occurred in the United States, but could not identify a van or 
minivan that also satisfied the domestic content requirement. FTA, 
therefore, temporarily waived the domestic content requirement, but 
continued to require final assembly in the United States for mass-
produced, unmodified non-ADA accessible vans and minivans. The waiver 
expired on September 30, 2019. Since the waiver's expiration, FTA has 
received requests to reissue a general public interest waiver for non-
ADA-accessible vans and minivans from grant recipients, the American 
Public Transit Association (APTA), and turnkey vanpool service provider 
Enterprise.
    In 2021, FTA received three applications for waivers for non-ADA 
accessible vans and minivans to be used as vanpool vehicles, based on 
the nonavailability of compliant vehicles. A vanpool vehicle is a 
vehicle with seating capacity for at least six adults not including the 
driver. 49 U.S.C. 5323(i)(2)(C). The three applicants are Coast Transit 
Authority of Biloxi, Mississippi; the Metropolitan Transportation 
Commission of San Francisco, California; and the Ann Arbor Area 
Transportation Authority in Michigan. All three applications are to 
support procurements of service contracts with ``Commute with 
Enterprise'' to carry out vanpool programs of between 40 and 250 
vehicles.
    Today, final assembly for a number of mass-produced, unmodified 
non-ADA accessible van and minivan models occurs in the United States. 
FTA recipients, however, cannot verify the domestic content of such 
vehicles because manufacturers are unwilling to sign the required Buy 
America certification regarding minimum domestic content or submit to 
FTA's pre-award and post-delivery audit requirements. Reasons that some 
of these manufacturers have provided to

[[Page 43102]]

FTA for their unwillingness to comply with these requirement include: 
(1) FTA-funded procurements do not generate a large percentage of 
overall sales of such vehicles, and therefore, their distribution chain 
is not set up for compliance with FTA Buy America requirements; and (2) 
it is burdensome to determine the components and subcomponents and 
their origin for Buy America audit purposes, and there are concerns 
regarding confidentiality of component pricing in audit reporting.
    FTA, therefore, currently is unable to identify a model that 
complies with its Buy America's 70- percent domestic content 
requirement. FTA recipients and their contractors use these vehicles to 
operate vanpool service. Without a waiver, recipients could not procure 
these vehicles with FTA funds, which may result in such consequences as 
the operation of vehicles beyond their useful life; procurement of 
larger Buy America compliant vehicles that are more expensive and have 
less desirable access/egress characteristics compared to minivans; or 
termination of vanpool programs or failure to form new vanpool service, 
which could have climate change and equity impacts because vanpools 
provide an important transportation alternative to private passenger 
vehicles both in large cities and rural areas, and service to the 
elderly and disabled who do not need an ADA-accessible van.

Proposed Waiver

    Under the American Automobile Labeling Act (AALA), manufacturers of 
mass-produced passenger motor vehicles for sale in the United States 
must report to the National Highway Traffic Safety Administration 
(NHTSA), by carline and by model year, information about each vehicle's 
place of assembly and the country of origin of its engine and 
transmission. See, 49 U.S.C. 32304 and 49 CFR part 583. This 
information is available on NHTSA's website at https://www.nhtsa.gov/part-583-american-automobile-labeling-act-reports.
    In response to the three individual applications for 
nonavailability waivers of non-ADA accessible vans and minivans, FTA 
proposes the following partial general nonavailability waiver 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 would 
require:
    (1) Final assembly must be in the United States, as reported to 
NHTSA under the AALA;
    (2) The country of origin of the engine, or (in the case of 
electric vehicles) motor must be the United States, as reported to 
NHTSA under the AALA;
    (3) The waiver is available to all grant recipients;
    (4) The waiver would expire two years from issuance, or upon a 
fully Buy America--compliant van or minivan becoming available, 
whichever occurs first.
    FTA is proposing to require that engines/motors be of United States 
origin, as reported under the AALA, as an easily verifiable way to 
maximize domestic content in vans and minivans absent a fully compliant 
vehicle. Manufacturers already report this information, and the 
information is readily available to the public, thus limiting burdens 
for manufacturers and procuring entities. For the duration of this 
partial general nonavailability waiver, FTA recipients would not have 
to submit individual applications for nonavailability waivers for mass-
produced, unmodified non-ADA accessible vans and minivans.
    FTA is not proposing to require that transmissions must be of 
United States origin, so that the procurement of hybrid vans or 
minivans with transmissions manufactured outside the United States 
would be eligible for FTA funding, and because electric vehicles do not 
have transmissions. The availability of hybrid and electric vehicles 
for use in federally funded vanpool service will contribute to the 
reduction of greenhouse gas emissions and environmental justice. FTA 
could revise this proposed waiver to require transmissions for hybrid 
vehicles be of United States origin if comments or later changes in 
market conditions demonstrate hybrid vans and minivans are available 
with transmissions made in the United States.

Request for Comment

    This notice satisfies FTA's requirement to publish any proposed Buy 
America waiver in the Federal Register and provide the public with a 
reasonable period of time for notice and comment. 49 U.S.C. 5323(j)(3). 
FTA seeks public and industry comment from all interested parties. In 
particular, FTA seeks comment regarding whether the waiver should be 
approved, and, if so, whether it should be modified from FTA's proposal 
and why. Relevant information and comments will help FTA understand 
completely the facts surrounding the waiver requests and FTA's 
proposal.

Nuria I. Fernandez,
Administrator.
[FR Doc. 2022-15356 Filed 7-18-22; 8:45 am]
BILLING CODE 4910-57-P