[Federal Register Volume 73, Number 100 (Thursday, May 22, 2008)]
[Notices]
[Pages 29841-29843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11403]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2008-0024]


Notice of Proposed Buy America Waiver for the National Fuel Cell 
Bus Technology Development Program

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed Buy America waiver and request for comment.

-----------------------------------------------------------------------

SUMMARY: The Federal Transit Administration (FTA) proposes to waive its 
Buy America requirements for projects funded under the National Fuel 
Cell Bus Technology Development Program (Fuel Cell Bus Program). This 
Notice sets forth FTA's justification and seeks comment thereon. The 
purpose of the Fuel Cell Bus Program is to facilitate the development 
of commercially viable fuel cell bus technology and related 
infrastructure.

DATES: Comments must be received by May 29, 2008. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: Please submit your comments by only one of the following 
means, identifying your submissions by docket number FTA-2008-0024. All 
electronic submissions must be made to

[[Page 29842]]

the U.S. Government electronic site at http://www.regulations.gov. 
Commenters should follow the instructions below for mailed and hand-
delivered comments.
    (1) Web site: http://www.regulations.gov. Follow the instructions 
for submitting comments on the U.S. Government electronic docket site;
    (2) Fax: (202) 493-2251;
    (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-2008-0024. 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 FR 19477), or visit 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For program questions please contact 
Christina Gikakis at (202) 366-2637 or [email protected]. For 
legal questions please contact Jayme L. Blakesley at (202) 366-0304 or 
[email protected].

SUPPLEMENTARY INFORMATION: This Notice sets forth the Federal Transit 
Administration's (FTA) justification for proposing to waive its Buy 
America requirements for projects funded under the National Fuel Cell 
Bus Technology Development Program (Fuel Cell Bus Program) and seeks 
comment thereon.

The National Fuel Cell Bus Technology Development Program

    Section 3046 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 
109-59, instructed FTA ``to establish a national fuel cell bus 
technology program [Fuel Cell Bus Program] to facilitate the 
development of commercially viable fuel cell bus technology and related 
infrastructure.''
    By notice dated April 14, 2006, FTA solicited applications to the 
Fuel Cell Bus Program and restated the statutory criteria for 
evaluating applications. These criteria included the ability of the 
project ``to contribute significantly to furthering fuel cell 
technology as it relates to transit bus operations, including hydrogen 
production, energy storage, fuel cell technologies, vehicle systems 
integration, and power electronics technology,'' and to advance 
``different fuel cell technologies, including hydrogen-fueled and 
methanol-powered liquid-fueled fuel cell technologies, that may be 
viable for public transportation systems.'' 71 FR 19612 (April 14, 
2006).
    FTA selected three consortiums to participate in the Fuel Cell Bus 
Program: The Center for Transportation and the Environment in Atlanta, 
the Northeast Advanced Vehicle Consortium in Boston, and Westart/
CALSTART in Pasadena. These consortia will develop fourteen projects. 
Of these, eight are development and demonstration projects, two are 
component technology development, and four support analysis, outreach 
and coordination.
    The Fuel Cell Bus Program seeks to develop commercially-viable fuel 
cell buses by demonstrating that buses powered by fuel cell technology 
can achieve several technical targets, including a four to six year 
(20,000 to 30,000 hour) fuel cell durability, cost of less than five 
times that of an equivalent diesel, greater than 90% reliability, twice 
the fuel efficiency of a comparable bus, emissions below the 2010 
Environmental Protection Agency standards and vehicle performance 
comparable to a diesel bus.

Public Interest Waiver

    The purpose of this notice is to seek public comment on whether FTA 
should waive its Buy America requirements for all projects funded under 
the Fuel Cell Bus Program.
    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 applying the Buy America 
requirements ``would be inconsistent with the public interest.'' 49 
U.S.C. 5323(j)(2)(A). After considering all appropriate factors on a 
case-by-case basis, 49 CFR 661.7(b), if FTA determines that the 
conditions exist to grant a public interest waiver, FTA will issue a 
detailed written statement justifying why the waiver is in the public 
interest, and will publish this justification in the Federal Register, 
providing the public with a reasonable time for notice and comment of 
not more than seven calendar days. 49 CFR 661.7(b).
    Because the U.S. market for fuel cell bus technology and related 
infrastructure is not fully developed, participants in the Fuel Cell 
Bus Program have inquired whether FTA could waive its Buy America 
requirements. According to one participant, ``[a] successful Fuel Cell 
transit bus must meet and be consistent with the public transit 
market's ability to incorporate and afford such technology on a mass 
scale. * * * At this stage of technology development more engineering 
data is necessary to accurately specify a fuel cell for a competitive 
bid. [Requiring participants to comply with FTA's Buy America 
requirements] would significantly delay the development effort, would 
be extremely expensive, and would result in a huge set back to the 
overall development of Fuel Cell technology. [Allowing participants to 
use all available technology, regardless of origin,] is the fastest, 
soundest method to perfect the technology, assure future competition, 
and hasten the advent of fuel cell buses in transit.''
    In order to develop commercially viable fuel cell buses, FTA's Fuel 
Cell Bus Program must examine all current technologies. But at this 
time, because fuel cell technologies for transit are still in the 
developmental and technical validation phase, it is impossible to 
determine which configurations are most likely to reach 
commercialization. As development continues, the industry will require 
objective demonstrations and evaluations of different bus propulsion 
systems. Permitting participants to use foreign and domestic suppliers 
will allow FTA to evaluate which technologies are closest to successful 
deployment. If certain technologies are omitted from the program 
because they are of foreign origin, it will severely affect FTA's 
ability to fully analyze fuel cell bus technology.
    FTA believes that a limited waiver of its Buy America requirements 
for manufactured products and rolling stock procured through its Fuel 
Cell Bus Program is necessary because of the technical difficulties and 
increased costs associated with new technology.
    There are several benefits to waiving FTA's Buy America 
requirements on a

[[Page 29843]]

program-wide basis. FTA selected projects to include all significant 
technologies within a centrally-managed program. By granting a waiver 
for the entire program, FTA can decrease the start-up time for 
individual projects. Otherwise, each project would have to apply for 
waivers on a case-by-case basis. This is impractical in a research 
setting. Research projects often encounter unexpected problems that 
require changes to the scope of work. The continued development of Fuel 
Cell technology will result in more choices for FTA grantees and 
better, more environmentally friendly, buses for the riding public. 
Successful demonstrations through the Fuel Cell Bus Program will 
increase awareness of fuel cell technology and foster a domestic 
industry by identifying and mitigating barriers and uncertainties in 
the market. A limited waiver to support research and development would 
increase and improve domestic technical expertise. Moreover, a fully-
inclusive public interest waiver will allow Fuel Cell Bus Program 
participants to collaborate to achieve the program goals in an 
appropriate timeframe. By reducing risk and expanding expertise, the 
Fuel Cell Bus Program will improve the availability of capital for a 
self-sustaining domestic fuel cell industry.
    For the foregoing reasons, FTA proposes to waive its Buy America 
requirements for all projects funded through its Fuel Cell Bus Program. 
Quick and successful deployment of fuel cell bus technology and 
infrastructure is in the public interest. Fuel cell technology will 
benefit the environment by lessening carbon emissions, decreasing the 
use of petroleum and other fossil fuels. Allowing foreign technologies 
will allow the project teams to focus on commercial viability instead 
of having to make fundamental advances independent of existing 
technology. Ultimately, this will lead to increased domestic demand for 
fuel cell bus technology and infrastructure, resulting in a sustainable 
U.S. market.
    FTA seeks comment from all interested parties. Please submit 
comments by May 29, 2008. Late-filed comments will be considered to the 
extent practicable.

    Issued this 15th day of May, 2008.
Severn E.S. Miller,
Chief Counsel.
[FR Doc. E8-11403 Filed 5-21-08; 8:45 am]
BILLING CODE 4910-57-P