[Code of Federal Regulations]
[Title 49, Volume 7]
[Revised as of October 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR661.7]

[Page 82-83]
 
                        TITLE 49--TRANSPORTATION
 
CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 661_BUY AMERICA REQUIREMENTS_SURFACE TRANSPORTATION ASSISTANCE ACT 
OF 1982, AS AMENDED--Table of Contents
 
Sec. 661.7  Waivers.

    (a) Section 165(b) of the Act provides that the general requirements 
of section 165(a) shall not apply in four specific instances. This 
section sets out the conditions for the three statutory waivers based on 
public interest, non-availability, and price-differential. Section 
661.11 of this part sets out the conditions for the fourth statutory 
waiver governing the procurement of rolling stock and associated 
equipment.
    (b) Under the provision of section 165(b)(1) of the Act, the 
Administrator may waive the general requirements of section 165(a) if 
the Administrator finds that their application would be inconsistent 
with the public interest. In determining whether the conditions exist to 
grant this public interest waiver, the Administrator will consider all 
appropriate factors on a case-by-case basis, unless a general exception 
is specifically set out in this part.
    (c) Under the provision of section 165(b)(2) of the Act, the 
Administrator may waive the general requirements of section 165(a) if 
the Administrator finds that the materials for which a waiver is 
requested are not produced in the United States in sufficient and 
reasonably available quantities and of a satisfactory quality.
    (1) It will be presumed that the conditions exist to grant this non-
availability waiver if no responsive and responsible bid is received 
offering an item produced in the United States.
    (2) In the case of a sole source procurement, the Administrator will 
grant this non-availability waiver only if the grantee provides 
sufficient information which indicates that the item to be procured is 
only available from a single source or that the item to be procured is 
not produced in sufficient and reasonably available quantities of a 
satisfactory quality in the United States.
    (d) Under the provision of section 165(b)(4) of the Act, the 
Administrator may waive the general requirements of section 165(a) if 
the Administrator finds that the inclusion of a domestic item or 
domestic material will increase the cost of the contract between the 
grantee and its supplier of that item or material by more than 25 
percent. The Administrator will grant this price-differential waiver if 
the amount of the lowest responsive and responsible bid offering the 
item or material that is not produced in the United States multiplied by 
1.25 is less than the amount of the lowest responsive and responsible 
bid offering the item or material produced in the United States.
    (e) The four statutory waivers of section 165(b) of the Act as set 
out in this part shall be treated as being separate and distinct from 
each other.
    (f) The waivers described in paragraphs (b) and (c) of this section 
may be granted for a component or subcomponent in the case of the 
procurement of the items governed by section 165(b)(3) of the Act 
(requirements for rolling stock). If a waiver is granted for a component 
or a subcomponent, that component or subcomponent will be considered to 
be of domestic origin for the purposes of Sec. 661.11 of this part.
    (g) The waivers described in paragraphs (b) and (c) of this section 
may be granted for a specific item or material that is used in the 
production of a manufactured product that is governed by the 
requirements of Sec. 661.5(d) of this part. If such a waiver is granted 
to such a specific item or material, that item or material will be 
treated as being of domestic origin.
    (h) The provisions of this section shall not apply to products 
produced in a foreign country if the Secretary, in

[[Page 83]]

consultation with the United States Trade Representative, determines 
that:
    (1) That foreign country is party to an agreement with the United 
States pursuant to which the head of an agency of the United States has 
waived the requirements of this section; and
    (2) That foreign country has violated the terms of the agreement by 
discriminating against products covered by this section that are 
produced in the United States and are covered by the agreement.

               Appendix A to Sec. 661.7--General Waivers

    (a) All waivers published in 48 CFR 25.108 which establish excepted 
articles, materials, and supplies for the Buy American Act of 1933 (41 
U.S.C. 10a-d), as the waivers may be amended from time to time, apply to 
this part under the provisions of Sec. 661.7 (b) and (c).
    (b) Under the provisions of Sec. 661.7(b) of this part, 15 
passenger vans produced by Chrysler Corporation are exempt from the 
requirement that final assembly of the vans take place in the United 
States (49 FR 13944, April 9, 1984).
    (c) Under the provisions of Sec. 661.7(b) of this part, 15 
Passenger Wagons produced by Chrysler Corporation are exempt from the 
requirement that final assembly of the wagons take place in the United 
States (letter to Chrysler Corporation dated May 13, 1987.)
    (d) Under the provisions of Sec. 661.7 (b) and (c) of this part, 
microcomputer equipment, including software, of foreign origin can be 
procured by grantees (50 FR 18760, May 2, 1985 and 51 FR 36126, October 
8, 1986).
    (e) Under the provisions of Sec. 661.7(b) of this part, a general 
public interest waiver from the Buy America requirements for ``small 
purchases'' (as defined in the ``common grant rule,'' at 49 CFR 
18.36(d)) made by FTA grantees with capital, planning, or operating 
assistance.

[56 FR 932, Jan. 9, 1991, as amended at 60 FR 37928, July 24, 1995, 61 
FR 6302, Feb. 16, 1996]