81 FR 20051 - Notice of Proposed Public Interest Waiver of Buy America Domestic Content Requirements for Rolling Stock Procurements In Limited Circumstances
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration Federal Register Volume 81, Issue 66 (April 6, 2016)
Federal Transit Administration
Federal Register Volume 81, Issue 66 (April 6, 2016)
| Page Range | 20051-20053 | |
| FR Document | 2016-07836 |
[Federal Register Volume 81, Number 66 (Wednesday, April 6, 2016)] [Notices] [Pages 20051-20053] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-07836] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Transit Administration [Docket No. FTA-2016-0020] Notice of Proposed Public Interest Waiver of Buy America Domestic Content Requirements for Rolling Stock Procurements In Limited Circumstances AGENCY: Federal Transit Administration, DOT. ACTION: Notice of proposed general public interest waiver and request for comments. ----------------------------------------------------------------------- SUMMARY: The purpose of this notice is to articulate the Federal Transit Administration's (FTA) justification for waiving its Buy America requirements for rolling stock under certain limited circumstances because application of the increased domestic content requirements is inconsistent with public policy. The Fixing America's Surface Transportation (FAST) Act amended FTA's Buy America statute to include a phased increase in domestic content for rolling stock. The FAST Act was signed into law on December 4, 2015, but included an effective date of October 1, 2015. FTA proposes a public interest waiver for the following categories of contracts: (1) For contracts entered into between the FAST Act's effective date and date of enactment (i.e., between October 1, 2015 and December 4, 2015), the increased domestic content requirements for FY2018 and beyond will not apply, regardless of when the vehicles are delivered; and (2) for contracts entered into after December 4, 2015 as a result of solicitations for bids or requests for proposals that were advertised before December 4, 2015, the increased domestic content requirements for FY2018 and beyond will not apply, regardless of when the vehicles are delivered. FTA is providing notice of this public interest waiver and seeks public comment. After consideration of the comments, FTA will issue a second Federal Register notice responding to comments and issuing final public interest waivers. DATES: Comments must be received by April 13, 2016. 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-2016-0020: 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, West Building, Ground Floor, Room W12- 140, Washington, DC 20590-0001. 4. Hand Delivery: U.S. Department of Transportation, 1200 New Jersey Avenue SE., Docket Operations, M-30, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001 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-2016-0020. Due to the security procedures in effect since October 2011, 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 April 11, 2000 (65 FR 19477), or you may visit http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Cecelia Comito, Assistant Chief Counsel, Office of the Chief Counsel, phone: (202) 366-2217 or email, [email protected]. SUPPLEMENTARY INFORMATION: [[Page 20052]] I. Introduction The FAST Act, FTA's current authorizing legislation, amended the rolling stock waiver in 49 U.S.C. 5323(j)(2)(C) to provide for a phased increase in the domestic content for rolling stock for FY2018-FY2019 and FY2020 and beyond. As amended by the FAST Act, the domestic content for rolling stock increases over time from the current rate of ``more than 60 percent'' to ``more than 70 percent'' in FY2020 and beyond: (j) Buy America. (1) In general. The Secretary may obligate an amount that may be appropriated to carry out this chapter for a project only if the steel, iron, and manufactured goods used in the project are produced in the United States. (2) Waiver. The Secretary may waive paragraph (1) of this subsection if the Secretary finds that: * * * * * (C) when procuring rolling stock (including train control, communication, traction power equipment, and rolling stock prototypes) under this chapter (i) the cost of components and subcomponents produced in the United States (I) for fiscal years 2016 and 2017, is more than 60 percent of the cost of all components of the rolling stock; (II) for fiscal years 2018 and 2019, is more than 65 percent of the cost of all components of the rolling stock; and (III) for fiscal years 2020 and each fiscal year thereafter, is more than 70 percent of the cost of all components of the rolling stock; and (ii) final assembly of the rolling stock has occurred in the United States . . . In a separate notice published in today's Federal Register, FTA is seeking comment on its proposed statement of policy regarding the implementation of the phased increase in domestic content for rolling stock under the FAST Act. FTA interprets the language in the FAST Act to require that if the date a recipient enters into a contract for rolling stock occurs after the effective date of the FAST Act, i.e., October 1, 2015, then the new FAST Act provisions for rolling stock apply. Thus, contracts entered into after October 1, 2015 must provide that vehicles delivered in FY2018 and FY2019 have a domestic content of more than 65 percent, and that vehicles delivered in FY2020 and beyond must have a domestic content of more than 70 percent. These delivery provisions apply to contracts signed after the effective date of the FAST Act, i.e., October 1, 2015, unless a waiver is granted. II. Proposed Public Interest Waiver 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 where 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). Recipients who entered into rolling stock contracts prior to December 4, 2015, were required under existing Buy America law to procure vehicles with a domestic content of more than 60 percent, regardless of when the vehicle was delivered. Because rolling stock frequently cannot be delivered in a short time frame, recipients may enter into multi-year contracts for rolling stock, allowing for contracts up to five years for buses and up to seven years for railcars. 49 U.S.C. 5325(e). Thus, under existing law at the time of contracting, recipients were not prohibited from entering into contracts for vehicles that would be delivered in FY2018 and beyond. Although the FAST Act was signed into law on December 4, 2015, Congress included an effective date of October 1, 2015. Application of the FAST Act's retroactive effective date to rolling stock contracts entered into between October 1, 2015 and December 4, 2015, would result in rendering those contracts ineligible for FTA funds for vehicles delivered in FY2018 and beyond. Without a waiver, recipients most likely would be required to cancel those contracts, and start the procurement process again. ``The inquiry into whether a statute operates retroactively demands a ``commonsense, functional judgment about `whether the new provision attaches new legal consequences to events completed before its enactment.' '' INS v. St. Cyr., 533 U.S. 289, 312 (2001) (quoting Martin v. Hadix, 527 U.S. 343, 357-358 (1999)). Additionally, ``the mere promulgation of an effective date for a statute does not provide sufficient assurance that Congress specifically considered the potential unfairness that retroactive application would produce.'' St. Cyr., 533 U.S. at 317. Thus, the decision to apply a statute retroactive should be guided by considerations of fair notice, reasonable reliance, and settled expectations. Retroactive application of the FAST Act's increase in domestic content to contracts entered into between October 1, 2015 and December 4, 2015 would be inconsistent with the public interest. As noted in the FTA's Best Practices Procurement Manual, the procurement process for buses and railcars can be several years from drafting detailed specifications to contract award. Rail vehicle procurements are planned seven to ten years in advance of needed completion because several interdependent contracts may have to be awarded in order to accomplish the project. Bus procurements generally require at least three years of advance planning. Depending on the complexity of the procurement, the time intervals typically required to accomplish rolling stock contract awards might include:One year advance planning before Request for Proposals (RFP) for the engineering services; Four months from RFP to award of the engineering services; Two years to prepare technical specifications; Three months from completion of specifications to system RFP; Six months from system RFP to award; and Three years for system construction. The planning and design processes can change this schedule significantly. All of this planning and work by the recipient is at tremendous cost to the recipient, and therefore, to the public, both in terms of money and the delayed acquisition of new transit vehicles. Additionally, preparation of a proposal or bid in response to a solicitation for vehicles is both time-consuming and costly for the manufacturers. Application of the FAST Act's increased domestic content requirements to rolling stock procurements for which recipients have advertised solicitations for bids or requests for proposals prior to December 4, 2015 will be particularly burdensome for both the recipient and the manufacturer. FTA proposes a public interest waiver under these circumstances. These procurements are underway and a change in the domestic content will require recipients to amend their solicitations and specifications in order to include the FAST Act's [[Page 20053]] increased domestic content requirements, which would result in substantial delay and increased costs, particularly for those recipients who are about to enter into contracts. Accordingly, FTA proposes a public interest waiver for the following categories of contracts: (1) For contracts entered into between the FAST Act's effective date and date of enactment (i.e., between October 1, 2015 and December 4, 2015), the increased domestic content requirements for FY2018 and beyond will not apply, regardless of when the vehicles are delivered; and (2) for contracts entered into after December 4, 2015 as a result of solicitations for bids or requests for proposals that were advertised before December 4, 2015, the increased domestic content requirements for FY2018 and beyond will not apply, regardless of when the vehicles are delivered. This public interest waiver is limited to the parties to the contract only. Recipients who are not direct parties to the contract, however, may not exercise options (a/k/a ``piggybacking'') on such contracts and take advantage of the lower domestic content requirement. The assignment of options to a third party results in the third party and the vendor entering into a new contract after the effective date of the FAST Act, and therefore, the increased domestic content requirements for FY2018 and beyond will apply to vehicles delivered in those years. Recipients or vendors may apply to FTA for individual public interest waivers for contracts entered into after December 4, 2015, and others that do not fall within the scope of this general public interest waiver. A request for a public interest waiver should set forth the detailed justification for the proposed waiver, including information about the history of the procurement and the burden on the recipient and/or the industry in complying with the FAST Act. Public interest waivers should be narrowly tailored and FTA will not generally look favorably on waivers that provide for contracts that include the exercise of options for vehicles that will be delivered beyond FY2020. FTA will act expeditiously on public interest waiver requests that provide the information requested. FTA seeks comment from all interested parties on the above public interest waiver. After consideration of the comments, FTA will publish a second notice in the Federal Register with a response to comments and noting any changes made to the public interest waiver as a result of the comments received. Therese McMillan, Acting Administrator. [FR Doc. 2016-07836 Filed 4-5-16; 8:45 am] BILLING CODE 4910-57-P
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component is determined to be of and the burden on the recipient and/or 2015 as a result of solicitations for bids
domestic origin, its entire cost may be the industry in complying with the or requests for proposals that were
used in calculating the cost of content FAST Act. Public interest waivers advertised before December 4, 2015, the
of an end product. should be narrowly tailored and FTA increased domestic content
General Public Interest Waivers. FTA will not generally look favorably on requirements for FY2018 and beyond
recognizes, however, that the FAST Act waivers that provide for contracts that will not apply, regardless of when the
amendments to the rolling stock Buy include the exercise of options for vehicles are delivered. FTA is providing
America waiver may produce significant vehicles that will be delivered beyond notice of this public interest waiver and
hardship for two categories of recipients FY2020. FTA will act expeditiously on seeks public comment. After
and manufacturers: (1) Recipients who public interest waiver requests that consideration of the comments, FTA
entered into contracts or placed provide the information requested. will issue a second Federal Register
purchase orders against State schedules FTA seeks comment from all notice responding to comments and
between October 1, 2015 and December interested parties on the above policy issuing final public interest waivers.
4, 2015; and (2) recipients who have statement. After consideration of the
entered into contracts after December 4, DATES: Comments must be received by
comments, FTA will publish a second April 13, 2016. Late-filed comments will
2015, as a result of solicitations for bids notice in the Federal Register with a
or requests for proposals that were be considered to the extent practicable.
response to comments and noting any
advertised before December 4, 2015. changes made to the policy statement as ADDRESSES: Please submit your
Under 49 U.S.C. 5323(j)(2)(A), the a result of the comments received. comments by one of the following
Administrator may waive the Buy means, identifying your submissions by
America requirements if the Therese McMillan, docket number FTA–2016–0020:
Administrator finds that applying the Acting Administrator. 1. Web site: http://
Buy America requirements would be [FR Doc. 2016–07837 Filed 4–5–16; 8:45 am] www.regulations.gov. Follow the
inconsistent with the public interest. BILLING CODE 4910–57–P instructions for submitting comments
‘‘In determining whether the conditions on the U.S. Government electronic
exist to grant a public interest waiver, docket site.
the Administrator will consider all DEPARTMENT OF TRANSPORTATION 2. Fax: (202) 493–2251.
appropriate factors on a case-by-case
basis . . . When granting a public Federal Transit Administration 3. Mail: U.S. Department of
interest waiver, the Administrator shall Transportation, 1200 New Jersey
[Docket No. FTA–2016–0020] Avenue SE., Docket Operations, M–30,
issue a detailed written statement
justifying why the waiver is in the West Building, Ground Floor, Room
Notice of Proposed Public Interest
public interest. The Administrator shall W12–140, Washington, DC 20590–0001.
Waiver of Buy America Domestic
publish this justification in the Federal Content Requirements for Rolling 4. Hand Delivery: U.S. Department of
Register, providing the public with a Stock Procurements In Limited Transportation, 1200 New Jersey
reasonable time for notice and comment Circumstances Avenue SE., Docket Operations, M–30,
of not more than seven calendar days.’’ West Building, Ground Floor, Room
49 CFR 661.7(b). AGENCY: Federal Transit Administration, W12–140, Washington, DC 20590–0001
In a separate notice published in DOT. between 9 a.m. and 5 p.m., Monday
today’s Federal Register, FTA is seeking ACTION: Notice of proposed general through Friday, except Federal holidays.
comment on a general public interest public interest waiver and request for Instructions: All submissions must
waiver. This public interest waiver is for comments. make reference to the ‘‘Federal Transit
the following categories of contracts: (1) Administration’’ and include docket
For contracts entered into between the SUMMARY: The purpose of this notice is number FTA–2016–0020. Due to the
FAST Act’s effective date and date of to articulate the Federal Transit security procedures in effect since
enactment (i.e., between October 1, 2015 Administration’s (FTA) justification for October 2011, mail received through the
and December 4, 2015), the increased waiving its Buy America requirements U.S. Postal Service may be subject to
domestic content requirements for for rolling stock under certain limited delays. Parties making submissions
FY2018 and beyond will not apply, circumstances because application of responsive to this notice should
regardless of when the vehicles are the increased domestic content consider using an express mail firm to
delivered; and (2) for contracts entered requirements is inconsistent with public ensure the prompt filing of any
into after December 4, 2015 as a result policy. The Fixing America’s Surface submissions not filed electronically or
of solicitations for bids or requests for Transportation (FAST) Act amended by hand. Note that all submissions
proposals that were advertised before FTA’s Buy America statute to include a received, including any personal
December 4, 2015, the increased phased increase in domestic content for information therein, will be posted
domestic content requirements for rolling stock. The FAST Act was signed without change or alteration to http://
FY2018 and beyond will not apply, into law on December 4, 2015, but www.regulations.gov. For more
regardless of when the vehicles are included an effective date of October 1, information, you may review DOT’s
delivered. 2015. FTA proposes a public interest complete Privacy Act Statement in the
Recipients or vendors may apply to waiver for the following categories of Federal Register published April 11,
FTA for individual public interest contracts: (1) For contracts entered into
asabaliauskas on DSK3SPTVN1PROD with NOTICES
2000 (65 FR 19477), or you may visit
waivers for contracts entered into after between the FAST Act’s effective date http://www.regulations.gov.
December 4, 2015, and others that do and date of enactment (i.e., between
not fall within the scope of a general October 1, 2015 and December 4, 2015), FOR FURTHER INFORMATION CONTACT:
public interest waiver. A request for a the increased domestic content Cecelia Comito, Assistant Chief
public interest waiver should set forth requirements for FY2018 and beyond Counsel, Office of the Chief Counsel,
the detailed justification for the will not apply, regardless of when the phone: (202) 366–2217 or email,
proposed waiver, including information vehicles are delivered; and (2) for Cecelia.Comito@dot.gov.
about the history of the procurement contracts entered into after December 4, SUPPLEMENTARY INFORMATION:
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![Federal Register / Vol. 81, No. 66 / Wednesday, April 6, 2016 / Notices 20053
increased domestic content waiver as a result of the comments follow the online search instructions to
requirements, which would result in received. located docket number ‘‘NHTSA–2014–
substantial delay and increased costs, 0104.’’
Therese McMillan,
particularly for those recipients who are
Acting Administrator. II. Trailers Involved
about to enter into contracts.
[FR Doc. 2016–07836 Filed 4–5–16; 8:45 am] Affected are approximately 2,940 JLG
Accordingly, FTA proposes a public
interest waiver for the following
BILLING CODE 4910–57–P Triple-L utility trailers with a GVWR of
categories of contracts: (1) For contracts less than 10,000 lbs. that were
entered into between the FAST Act’s manufactured between August 2005 and
DEPARTMENT OF TRANSPORTATION July 2014.
effective date and date of enactment
(i.e., between October 1, 2015 and National Highway Traffic Safety III. Noncompliance
December 4, 2015), the increased Administration
domestic content requirements for JLG explains that the noncompliance
[Docket No. NHTSA–2014–0104; Notice 2] is that the tire and loading information
FY2018 and beyond will not apply,
regardless of when the vehicles are placard does not contain the words
JLG Industries, Inc., Grant of Petition ‘‘The weight of the cargo should never
delivered; and (2) for contracts entered for Decision of Inconsequential
into after December 4, 2015 as a result exceed XXX kilograms or XXX pounds’’
Noncompliance as required by paragraph S4.3.5 of
of solicitations for bids or requests for
proposals that were advertised before AGENCY: National Highway Traffic FMVSS No. 110.
December 4, 2015, the increased Safety Administration (NHTSA), IV. Rule Text
domestic content requirements for Department of Transportation (DOT).
FY2018 and beyond will not apply, ACTION: Grant of petition. Paragraph S4.3.5 of FMVSS No. 110
regardless of when the vehicles are requires in pertinent part:
delivered. SUMMARY: JLG Industries, Inc. (JLG) has S4.3.5 Requirements for trailers. Each
determined that certain JLG Triple-L trailer, except for an incomplete vehicle,
This public interest waiver is limited utility trailers do not fully comply with must show the information specified in S4.3
to the parties to the contract only. paragraph S4.3.5 of Federal Motor (c) through (g), and may show the
Recipients who are not direct parties to Vehicle Safety Standard (FMVSS) No. information specified in S4.3 (h) and (i), on
the contract, however, may not exercise 110, Tire Selection and Rims and Motor a placard permanently affixed proximate to
options (a/k/a ‘‘piggybacking’’) on such Home/Recreation Vehicle Trailer Load the certification label specified in 49 CFR
contracts and take advantage of the Carrying Capacity Information for Motor part 567. Additionally, each trailer must on
lower domestic content requirement. its placard contain a cargo capacity statement
Vehicles with a GVWR of 4,536 expressed as ‘‘The weight of cargo should
The assignment of options to a third kilograms (10,000 pounds) or Less. JLG
party results in the third party and the never exceed XXX kilograms or XXX
filed a report dated July 16, 2014, pounds’’ in the same location on the placard
vendor entering into a new contract pursuant to 49 CFR part 573, Defect and specified for the ‘‘vehicle capacity weight’’
after the effective date of the FAST Act, Noncompliance Responsibility and statement required by the standard. . . .
and therefore, the increased domestic Reports. JLG then petitioned NHTSA
content requirements for FY2018 and V. Summary of JLG’s Analyses
under 49 CFR part 556 requesting a
beyond will apply to vehicles delivered decision that the subject noncompliance JLG stated its belief that the subject
in those years. is inconsequential to motor vehicle noncompliance is inconsequential to
Recipients or vendors may apply to safety. motor vehicle safety for the following
FTA for individual public interest FOR FURTHER INFORMATION CONTACT: For reasons:
waivers for contracts entered into after further information on this decision (A) With regard to trailers JLG states
December 4, 2015, and others that do contact Stuart Seigel, Office of Vehicle that there is no need to account for
not fall within the scope of this general Safety Compliance, the National passenger weight when considering
public interest waiver. A request for a Highway Traffic Safety Administration cargo weight because there are no
public interest waiver should set forth (NHTSA), Telephone (202) 366–5287, designated seating positions on the
the detailed justification for the facsimile (202) 366–5930. trailer and all of the weight capacity is
proposed waiver, including information designated towards cargo. JLG also
SUPPLEMENTARY INFORMATION:
about the history of the procurement believes that providing the maximum
and the burden on the recipient and/or I. JLG’s Petition load capacity for the trailer therefore
the industry in complying with the Pursuant to 49 U.S.C. 30118(d) and provides the same information as
FAST Act. Public interest waivers 30120(h) and the rule implementing providing the maximum weight of the
should be narrowly tailored and FTA those provisions at 49 CFR part 556, JLG cargo.
will not generally look favorably on submitted a petition for an exemption (B) Although the Tire and Loading
waivers that provide for contracts that from the notification and remedy Information labels on the subject trailers
include the exercise of options for requirements of 49 U.S.C. Chapter 301 do not contain the statement set forth in
vehicles that will be delivered beyond on the basis that this noncompliance is S4.3.5, the same information is provided
FY2020. FTA will act expeditiously on inconsequential to motor vehicle safety. on a separate label in the vicinity of the
public interest waiver requests that Notice of receipt of JLG’s petition was Tire and Loading Information label.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
provide the information requested. published, with a 30-day public That label states that the ‘‘Max Load
FTA seeks comment from all comment period, on November 21, Capacity xxxx lbs’’ and further instructs
interested parties on the above public 2014, in the Federal Register (79 FR the operator to ‘‘center load on deck.’’
interest waiver. After consideration of 69550). No comments were received. To It also draws attention to the maximum
the comments, FTA will publish a view the petition and all supporting carrying load of the trailer and ensures
second notice in the Federal Register documents log onto the Federal Docket that drivers loading the trailer are aware
with a response to comments and noting Management System (FDMS) Web site of the maximum load capacity the
any changes made to the public interest at: http://www.regulations.gov/. Then trailer can carry—the precise
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Document Created: 2018-02-07 13:51:43
Document Modified: 2018-02-07 13:51:43
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of proposed general public interest waiver and request for comments. | |
| Dates | Comments must be received by April 13, 2016. Late-filed comments will be considered to the extent practicable. | |
| Contact | Cecelia Comito, Assistant Chief Counsel, Office of the Chief Counsel, phone: (202) 366-2217 or email, [email protected] | |
| FR Citation | 81 FR 20051 |
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