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

<NOTICE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Transit Administration</SUBAGY> <DEPDOC>[Docket No. FTA-2024-0007]</DEPDOC> <SUBJECT>Notice of Extension of Partial Buy America Waiver for Vans and Minivans</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Transit Administration (FTA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Notice of extension of Buy America waiver. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> The waiver extension is applicable on November 18, 2024. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jason Luebbers, FTA Attorney-Advisor, at (202) 366-8864 or <E T="03">jason.luebbers@dot.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 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. <HD SOURCE="HD1">Background</HD> 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 <E T="04">Federal Register</E> 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 <E T="04">Federal Register</E> on August 22, 2024 (89 FR 68027). <HD SOURCE="HD1">Partial General Buy America Waiver for Vans and Minivans</HD> 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 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. <E T="03">See</E> 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. <HD SOURCE="HD2">General Considerations</HD> 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 ( <E T="03">https://www.nhtsa.gov/part-583-american-automobile-labeling-act-reports</E> ) 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. <HD SOURCE="HD2">Considerations for Modifying the Waiver</HD> 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. <HD SOURCE="HD1">Response to Comments</HD> 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. <HD SOURCE="HD2">Comment Opposed To Extending the Waiver</HD> 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. <HD SOURCE="HD2">Requests To Lengthen the Waiver Period</HD> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 17k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━