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Notice of Partial Buy America Waiver for Vans and Minivans Publication: Federal Register Signing Official: Nuria I. Fernandez Agency: Federal Transit Administration Date: 25 October 2022 
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[Federal Register Volume 87, Number 205 (Tuesday, October 25, 2022)]
[Notices]
[Pages 64534-64536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23198]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2022-0013]
Notice of Partial Buy America Waiver for Vans and Minivans
AGENCY: Federal Transit Administration, Department of Transportation
(DOT).
ACTION: Notice of Buy America Waiver.
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SUMMARY: In response to multiple individual requests for a Buy America
nonavailability waiver for non-ADA-accessible vans or minivans that can
be used in federally funded vanpool programs, and because the Federal
Transit Administration (FTA) has been unable to identify any
manufacturer of non-ADA-accessible vans or minivans that fully comply
with Buy America, FTA is issuing a partial, time-limited, general
nonavailability waiver from the requirements of Buy America as
described in this notice.
DATES: This waiver is effective October 25, 2022 and expires two years
from this date, or upon publication of a rescission notice if FTA
determines that a fully Buy America-compliant vehicle has become
available, whichever occurs first.
FOR FURTHER INFORMATION CONTACT: Jason Luebbers, FTA Attorney-Advisor,
at (202) 366-8864 or Jason.Luebbers@dot.gov.
SUPPLEMENTARY INFORMATION:
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 if 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 on a per-procurement basis. Id. Section
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. Id. Section 5323(j)(2)(B). If FTA denies a request for a
nonavailability waiver, FTA must 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. Id. Section 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. (81 FR
72667). 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. The waiver expired on September 30, 2019. Since
expiration, FTA has received requests to reissue the 2016 waiver from
grant recipients, the American Public Transportation Association
(APTA), and turnkey vanpool service provider Enterprise.
In 2021, FTA received three applications for waivers of the
domestic content requirement, but not the final assembly requirement,
for non-ADA-accessible vans and minivans to be used in vanpool service,
based on the
[[Page 64535]]
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)(ii)(I). 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 some mass-produced, unmodified non-ADA-
accessible van and minivan models occurs in the United States. However,
these models either do not comply with FTA's domestic content
requirement or FTA recipients cannot verify the domestic content
because their 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.
On July 19, 2022, FTA published a notice (87 FR 43101) proposing a
nonavailability waiver for non-ADA accessible vans and minivans and
seeking public comment. FTA proposed that, in lieu of applying Buy
America's domestic content standard for rolling stock, FTA instead
would require non-ADA-accessible vans and minivans to have U.S.-
manufactured engines or motors and U.S. final assembly, as reported to
the National Highway Traffic Safety Administration (NHTSA) under the
American Automobile Labelling Act (AALA). See 49 U.S.C. 32304 and 49
CFR part 583. FTA requested comments from all interested parties
regarding the proposed waiver and whether it should be modified from
FTA's proposal, and why.
Response to Comments
FTA received submissions from 126 discrete commenters in Docket
FTA-2022-0013, including comments from a variety of transit agencies,
national associations, vanpool operators, state Departments of
Transportation, and the general public. Comments were almost entirely
supportive of the waiver, concurring that no known manufacturers
currently meet all of FTA's Buy America requirements. Most commenters
requested that FTA expand the waiver, either in scope, duration, or
both. Only one commenter opposed the waiver.
Commenters supportive of the waiver noted the following benefits:
support for U.S. jobs by requiring U.S. final assembly and U.S.-
manufactured engines or motors; climate benefits and decreased
congestion through reducing the number of vehicles on the road;
expansion or maintenance of vanpool service and vanpool fleets;
increased mobility for communities; and greater ability to hire drivers
for the relatively smaller class of vehicle compared to buses.
Commenters noted the roles vans and minivans play in providing mobility
access in large urban, small urban, and rural communities, for a
variety of social service programs, and for elderly passengers and
riders with disabilities who do not need an ADA-accessible van. Below
is a summary of the categories of comments received and FTA's
responses.
Requests To Expand or Clarify the Scope of Waiver
FTA received a number of comments seeking to expand or clarify the
scope of the waiver. A number of commenters advocated for expanding the
definition of vanpool or expanding the waiver to cover other classes of
vehicle. One commenter noted that carpooling does not require six
passenger seats and advocated for waiver eligibility for passenger
vehicles with fewer seats. Several commenters advocated for waiver
eligibility for larger classes of vehicles, such as cutaways. Finally,
three commenters noted that several models of sport utility vehicle
(SUV) meet the statutory definition of a vanpool vehicle, but not the
common meaning of van or minivan, and requested that the waiver scope
be revised to include SUVs.
FTA declines to expand the waiver beyond the scope of the waiver
requests it received: that is, to unmodified non-ADA-accessible vans
and minivans that meet the statutory definition of a vanpool vehicle.
For purposes of FTA funding programs, a vanpool vehicle must have
seating capacity for at least six adults, not including the driver. 49
U.S.C. 5323(i)(2)(C)(ii)(I). The vanpool vehicle definition is
statutory, and the waiver requests FTA received were for vanpool
vehicles. Vehicles with fewer seats do not meet the statutory
definition of vanpool vehicles and therefore are beyond the scope of
this waiver action. FTA has not received any request to waive
requirements for larger vehicles like cutaway vans and buses, which
also are beyond the scope of this action. FTA agrees with the comment
that an SUV that meets the statutory definition of a ``vanpool
vehicle'' would be covered by this waiver. FTA finds it unnecessary,
however, to change the terminology of the waiver based on this comment.
FTA received several comments related to ADA-accessible vehicles
and their exclusion from the proposed waiver. One commenter stated that
no ADA-accessible vans or minivans are Buy America compliant and
requested that the waiver also apply to those vehicles. Another
commenter stated concern that the waiver promoted non-ADA-compliant
vehicles at the expense of ADA-compliant ones.
ADA-accessible vans and minivans typically are created by
converting a ``standard model'' van or minivan by applying aftermarket
manufacturing steps and adding or replacing vehicle components, such as
a wheelchair lift. Because of these further manufacturing steps and
component changes, ADA-accessible vans and minivans have different
characteristics from the unmodified vehicles. FTA has not received any
requests to waive Buy America requirements for ADA-accessible vehicles.
For these reasons, ADA-accessible vans and minivans are beyond the
scope of this action.
One commenter requested FTA clarify the meaning of ``unmodified''
and asked whether the installation of advanced driver-assistance
systems (ADAS) disqualified otherwise eligible vehicles from waiver
eligibility.
FTA uses the term unmodified to mean the mass-produced models of
vans and minivans produced by automotive manufacturers that have not
undergone aftermarket manufacturing. For purposes of this waiver, FTA
uses the term primarily to distinguish from ADA-accessible vans and
minivans that are created by converting base vehicles to make them
wheelchair-accessible through aftermarket manufacturing processes. The
installation of hardware and components necessary for ADAS, such as
lidar, radar, computing and data storage, cameras, and other
integrations, does not disqualify an otherwise eligible van or minivan
from eligibility under this waiver. However, the addition of ADAS
equipment may raise entirely separate issues related to technology
standards or safety standards depending on the level of autonomy
achieved and the components involved. FTA recommends consulting with
the appropriate FTA regional office before using FTA funds to acquire
and install ADAS in vehicles.
One commenter asked whether zero-emission vehicles such as electric
vehicles would be eligible under the waiver. Zero emission vehicles,
including electric vehicles, are eligible if they otherwise satisfy the
conditions of the waiver.
[[Page 64536]]
Requests To Remove the Requirement That Engines or Motors Be U.S.-
Manufactured
Ten commenters disfavored the waiver requirement that engines or
motors be produced in the United States as reported under the AALA.
Many of those commenters cited supply chain difficulties and long lead
times for commercial vans and minivans as a rationale for removing the
country-of-origin requirement for engines and motors. One commenter
stated that FTA should remove the country-of-origin requirement for
motors to promote the adoption of electric vehicles. Several commenters
noted that some vehicles currently used in vanpool fleets would not be
eligible under this requirement, and that requiring U.S.-manufactured
engines and motors would impact fleet usage.
FTA's intent in granting this waiver is to strike 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 Executive Order 14005, Ensuring the Future Is Made
in All of America by All of America's Workers. FTA understands that
requiring U.S.-manufactured engines and motors will limit vehicle
selection for recipients and may impact turnkey service contractors
with existing fleets, compared to if FTA did not require domestic
manufacturing at all. However, there are a number of van and minivan
models currently available that meet FTA's waiver requirements. The
requirement that engines or motors are of U.S. origin strikes a balance
between availability and supporting U.S. manufacturing, and therefore,
FTA declines to revise it.
Requests To Lengthen the Waiver Period or Perform an Availability
Analysis Before Allowing the Waiver To Expire
Sixty-nine commenters--many of them citing COVID-19 supply chain
issues and reduced dealership inventory--requested that FTA extend the
waiver beyond the proposed two-year period. Many commenters pointed out
that FTA's 2016 waiver for vans and minivans lasted for three years.
Forty-nine commenters requested that the proposed waiver continue
indefinitely until such time as a fully Buy America compliant vehicle
becomes available.
FTA's two-year waiver is time-limited, consistent with the waiver
principles and criteria contained in the Office of Management and
Budget's (OMB) Initial Implementation Guidance, M-22-11. Furthermore,
FTA notes that this waiver applies to contracts entered into during the
two-year period, independent of the delivery date of vehicles. For
these reasons, FTA declines to extend the waiver period.
Objection to Proposed Waiver
One commenter objected to the proposed waiver, noting that
manufacturers had three years under the 2016 waiver to produce a
compliant vehicle, and FTA providing another waiver would send the
wrong message to industry. The commenter also stated that transit
agencies do not conduct adequate market research for their procurements
and overall do not do a reasonable job of buying rolling stock.
By law, if FTA denies a request for a nonavailability waiver, FTA
must certify a list of known manufacturers from which the required item
can be obtained. 49 U.S.C. 5323(j)(6). FTA is presently unable to make
that certification because FTA cannot identify a Buy America compliant,
unmodified, non-ADA-accessible van or minivan produced in the United
States. No bidder or offeror certified compliance with Buy America
requirements in response to the procurements conducted by the three
waiver applicants. Additionally, FTA conducted outreach to
manufacturers with the highest levels of U.S. or Canadian \1\ content
and U.S. final assembly, and those manufacturers expressed disinterest
in participating in FTA-funded procurements due to domestic content and
auditing requirements.
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\1\ Reporting under the AALA distinguishes between the United
States and Canada for the location of final assembly and the country
of origin of engines and transmissions, but it does not distinguish
between the United States and Canada for content levels. 49 U.S.C.
32304(b)(A); 49 CFR 583.5.
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FTA's waiver is intended to maximize the domestic content of the
vans and minivans procured with Federal assistance, consistent with
U.S. Department of Transportation policy goals. FTA will rescind the
two-year waiver if, during the waiver period, the FTA determines that a
Buy America compliant van or minivan is available.
Finding on Waiver
In accordance with subsection 70916(c) of the Build America, Buy
America Act (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),
which determined that no domestic entity currently manufactures the
subject vans and minivans in compliance with Buy America requirements,
and that supplier scouting by MEP is not warranted.
Therefore, for the reasons stated in FTA's July 19, 2022, notice of
proposed nonavailability waiver and based on comments received from the
public, FTA is granting the waiver as proposed.
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;
(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 FTA grant recipients;
(4) The waiver expires two years from the date this notice is
published in the Federal Register, 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
occurs first.
For the duration of this partial general nonavailability waiver,
FTA recipients do not need to submit individual applications for
nonavailability waivers for these vehicles.
Nuria I. Fernandez,
Administrator.
[FR Doc. 2022-23198 Filed 10-24-22; 8:45 am]
BILLING CODE 4910-57-P