[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Notices]
[Pages 18800-18801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9467]


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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 [email protected].

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