[Federal Register: April 24, 2009 (Volume 74, Number 78)]
[Notices]
[Page 18800-18801]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap09-118]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2009-0020]
Notice of Buy America Waiver Request From the Capital
Metropolitan Transportation Authority of Austin, TX
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Buy America waiver request and request for comments.
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SUMMARY: The Capital Metropolitan Transportation Authority (Capital
Metro) of Austin, Texas, has asked the Federal Transit Administration
(FTA) to waive its Buy America requirements to permit it to purchase
rail car vehicles that will be manufactured by Stadler Bussnang AG
(Stadler) in Switzerland. According to Capital Metro, the rail cars are
not available from a domestic source. This Notice sets forth Capital
Metro's arguments for a non-availability waiver and seeks comment
thereon.
DATES: Comments must be received by May 1, 2009. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: Please submit your comments by one of the following means,
identifying your submissions by docket number FTA-2009-0020. All
electronic submissions must be made to the U.S. Government electronic
site at www.regulations.gov. Commenters should follow the instructions
below for mailed and hand-delivered comments.
(1) Web site: www.regulations.gov. Follow the instructions for
submitting comments on the U.S. Government electronic docket site;
(2) Fax: (202) 493-2251;
[[Page 18801]]
(3) Mail: U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., Docket Operations, M-30, Room W12-140, Washington, DC
20590-0001.
(4) Hand Delivery: Room W12-140 on the first floor of the West
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Instructions: All submissions must make reference to the ``Federal
Transit Administration'' and include docket number FTA-2009-0020. Due
to security procedures in effect since October 2001, mail received
through the U.S. Postal Service may be subject to delays. Parties
making submissions responsive to this notice should consider using an
express mail firm to ensure the prompt filing of any submissions not
filed electronically or by hand. Note that all submissions received,
including any personal information therein, will be posted without
change or alteration to http://www.regulations.gov. For more
information, you may review DOT's complete Privacy Act Statement in the
Federal Register published on April 11, 2000 (65 Fed. Reg. 19477), or
visit www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jayme L. Blakesley at (202) 366-0304
or jayme.blakesley@dot.gov.
SUPPLEMENTARY INFORMATION:
The purpose of this notice is to seek public comment on whether the
Federal Transit Administration should waive its Buy America
requirements for six (6) rail car vehicles to be manufactured and
assembled in Switzerland by Stadler Bussnang AG (Stadler) for the
Capital Metropolitan Transportation Authority (Capital Metro) of
Austin, Texas. Because Capital Metro has already awarded a contract to
Stadler, it has asked for a post-award waiver.
Capital Metro set forth the grounds for its request in a letter
dated February 19, 2009, a copy of which will be placed in the Docket:
(1) Capital Metro acted in good faith when in 2006 it planned to use
local sales tax revenues to fund its contract with Stadler; (2) Actual
sales tax receipts are less than the amount estimated in 2006; and (3)
Both offers submitted to Capital Metro proposed to manufacture and
assemble the rail cars outside of the United States.
Capital Metro structured the RFP as a locally funded procurement
without including many of the standard Federal requirements like Buy
America and Cargo Preference. Because of a drop in sales tax revenues,
Capital Metro's local revenue source, the feasibility of funding this
procurement with local funds has been significantly diminished. For
this reason, Capital Metro has decided to utilize Federal funds and to
seek a Buy America waiver for this vehicle procurement. FTA notes that
Capital Metro did not request, and did not receive, the Buy America
certification forms that are required in federally funded procurements.
With certain exceptions, FTA's ``Buy America'' requirements prevent
FTA from obligating an amount that may be appropriated to carry out its
program for a project unless ``the steel, iron, and manufactured goods
used in the project are produced in the United States.'' 49 U.S.C.
5323(j)(1). One such exception is if ``the steel, iron, and goods
produced in the United States are not produced in a sufficient and
reasonably available amount or are not of a satisfactory quality.'' 49
U.S.C. 5323(j)(2)(B).
Section 3023(i)(5)(C) of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L.
109-59) gave FTA the statutory authority to issue post-award waivers.
This authority limits post-award waivers to non-availability waivers
only. Consequently, the only post-award waivers granted to date have
been on the basis of non-availability in cases in which the contractor
has made a certification of compliance with the requirements in good
faith but, for reasons not foreseen at the time of the initial RFP,
compliance was rendered impossible or impracticable.
``In determining whether the conditions exist to grant a post-award
non-availability waiver, [FTA] will consider all appropriate factors on
a case-by-case basis.'' 49 CFR 661.7(c)(3). Such factors will include
``the status of other bidders or offerors who are Buy America compliant
and can furnish domestic material or products on an FTA-funded
project,'' 72 Fed. Reg. 53,691 (Sept. 20, 2007), and ``may include
project schedule and budget.'' 71 Fed. Reg. 69, 415 (Nov. 30, 2006). In
addition, FTA will look to ``existing precedents in public contracting
law and practice.'' 71 Fed. Reg. 69,416 (Nov. 30, 2006). One such
precedent is FTA's recent decision to grant a post-award non-
availability waiver to the Regional Transportation Commission of
Southern Nevada in circumstances similar to Capital Metro's request.
FTA notes that, unlike with public interest waivers, it is not
required to publish a notice in the Federal Register before waiving its
Buy America requirements on the basis of non-availability. In this
instance, however, FTA is proceeding with an abundance of caution,
given the unique circumstances by which a prospective FTA grantee
issued a request for proposals without the inclusion of the traditional
Buy America clause, intending to fully underwrite the contract using
exclusively local funding. Therefore, in order to understand completely
the facts surrounding Capital Metro's request, FTA seeks comment from
all interested parties. A full copy of Capital Metro's petition has
been placed in docket number FTA-2009-0020. Please submit comments by
May 1, 2009. Late-filed comments will be considered to the extent
practicable.
Issued this 20th day of April 2009.
Scott A. Biehl,
Acting Chief Counsel.
[FR Doc. E9-9467 Filed 4-23-09; 8:45 am]
BILLING CODE 4910-57-P