Notice of Granted Buy America Waiver

AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Notice of Granted Buy America Waiver.

SUMMARY:

This waiver allows Orion Bus Industries (Orion) to count the axle used in the Orion II paratransit vehicle as a domestic component for the purposes of calculating overall domestic content and was predicated on the non-availability of the item domestically. A similar waiver was granted by FTA to Orion in 1998 for the period of two years. Because the market has not changed in the intervening two years, Orion requested that FTA extend this waiver. It was extended on February 28, 2000, for the period of two years, or until such time as a domestic source for this heavy-duty axle becomes available. This notice shall insure that the public, particularly potential manufacturers, is aware of this waiver. FTA requests that the public notify it of any relevant changes in the domestic market of heavy-duty axles.

FOR FURTHER INFORMATION PLEASE CONTACT:

Meghan G. Ludtke, FTA Office of Chief Counsel, Room 9316, (202) 366-4011 (telephone) or (202) 366-3809 (fax).

SUPPLEMENTARY INFORMATION:

The above referenced waiver is as follows:

Mr. Paul Royal,

Executive Vice President, Orion Bus Industries, A Division of Western Star Trucks, Inc., 350 Hazelhurst Road, Mississauge, Ontario.

Re: Application for Extension of Buy America Waiver for Orion II Component

Dear Mr. Royal: This letter responds to your correspondence of January 19, 2000, in which you request an extension of a Buy America waiver granted for the procurement of the GNX axle for use in your Orion II paratransit vehicle. The original two-year waiver was granted on February 27, 1998, per your request of December 22, 1997. This letter incorporates, by reference, the information contained in the above letters.

The Federal Transit Administration's (FTA) requirements concerning domestic preference for federally funded transit projects are set forth in 49 U.S.C. 5323(j). Section 5323(j)(2)(C) addresses the general requirements for the procurement of rolling stock. This section provides that all rolling stock procured with FTA funds must have a domestic content of at least 60 percent and must undergo final assembly in the U.S.

This waiver would allow Orion to count the axle as domestic for the purposes of calculating overall domestic content of the vehicle. You request a waiver under 49 U.S.C. 5323(j)(2)(B), which states those requirements shall not apply if the item or items being procured are not produced in the U.S. in sufficient and reasonably available quantities and of a satisfactory quality. The implementing regulation provides that, “[i]t 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.” 49 CFR 661.7(c)(1). The regulation goes on to note that, “[t]he waivers described in paragraphs (b) and (c) of this section may be granted for a component or subcomponent in the case of 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 subcomponent, that component or subcomponent will be considered to be of domestic origin for the purposes of Section 661.11 of this part.” 49 CFR 661.7(f). The regulations allow a bidder or supplier to request a non-availability waiver for a component or subcomponent in the procurement of rolling stock. See 49 CFR 661.7(f) and 49 CFR 661.9(d).

You claim that the type of axle necessary for the production of the Orion II is not available from a domestic source. In addition to the representations in your correspondence, you have also provided me with letters from two U.S. manufacturers of the heavy-duty axle, Spicer Heavy Axle and Meritor Automotive, Inc. You represent that these are the only two such manufacturers, and they both indicate that they have no plans to manufacture the product in the U.S.

Based on the information you have provided, I have determined that the grounds for a “non-availability” waiver do exist. Therefore, pursuant to the provisions of 49 U.S.C. 5323(j)(2)(B), the waiver is hereby extended for the procurement of heavy-duty axles for the Orion II for the period of two years, or until such time as a domestic source for this heavy-duty axle becomes available. In order to insure that the public is aware of this waiver, particularly potential manufacturers, this waiver will be published in the Federal Register.

If you have any questions, please contact Meghan G. Ludtke at (202) 366-4011.