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###### Department of Transportation

###### Federal Transit Administration

          - [Docket No. FTA-2009-0020]

# AGENCY:

Federal Transit Administration (FTA), DOT.

# ACTION:

Notice of Buy America waiver request and request for comments.

# 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;                              ( print 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                         *jayme.blakesley@dot.gov*.                    

# 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]

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