46350 Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 

the procedures set forth in 49 CFR part 

397, subpart E—Preemption Procedures. 

ATA requests that the FMCSA 

Administrator make a determination on 

whether the highway routing 

designations established by Boston are 

preempted pursuant to § 397.69(b). A 

copy of the ATA application for 

preemption determination is available 

for review in the docket for this notice. 

You may view or obtain a copy of the 

application online by visiting http:// 

www.regulations.gov and going to the 

docket number for this matter (FMCSA–

2008–0204). 

Public Comments 

FMCSA seeks comments on whether 

49 CFR 397.69(b) preempts Boston’s 

highway routing designations that are 

being challenged by ATA. Comments 

should specifically address the 

preemption standard established under 

49 CFR 397.69(b) and 49 U.S.C. 5125(c). 

Issued on: August 1, 2008. 

John H. Hill, 

Administrator. 

[FR Doc. E8–18344 Filed 8–7–08; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

[Docket No. FTA–2008–0024] 

Notice of Buy America Waiver for the 

National Fuel Cell Bus Technology 

Development Program 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Notice of Buy America waiver. 

SUMMARY: On May 22, 2008, the Federal 

Transit Administration (FTA) published 

a Notice of Proposed Buy America 

Waiver for the National Fuel Cell Bus 

Technology Development Program (Fuel 

Cell Bus Program). After careful review 

of comments, FTA has decided to waive 

its Buy America requirements for 

projects funded under the Fuel Cell Bus 

Program. This Notice sets forth FTA’s 

justification and response to comments. 

FOR FURTHER INFORMATION CONTACT: For 

program questions please contact 

Christina Gikakis at (202) 366–2637 or 

christina.gikakis@dot.gov. For legal 

questions please contact Jayme L. 

Blakesley at (202) 366–0304 or 

jayme.blakesley@dot.gov. 

SUPPLEMENTARY INFORMATION: This 

Notice sets forth the Federal Transit 

Administration’s (FTA) justification for 

waiving its Buy America requirements 

for projects funded under the National 

Fuel Cell Bus Technology Development 

Program (Fuel Cell Bus Program). 

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 consortia 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 manage 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, a 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 

articulate FTA’s justification for waiving 

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). 

Justification 

Because the U.S. market for fuel cell 

bus technology and related 

infrastructure is not fully developed, 

participants in the Fuel Cell Bus 

Program asked FTA to waive its Buy 

America requirements for projects 

funded under the Fuel Cell Bus 

Program. 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 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 46351 

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. 

There are several benefits to waiving 

FTA’s Buy America requirements on a 

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 will 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 selfsustaining domestic fuel cell industry. 

Summary of Comments 

On May 22, 2008, pursuant to 49 CFR 

661.7(b), FTA published a detailed 

written statement in the Federal 

Register at 73 FR 29841. This notice 

stated why FTA proposed to waive its 

Buy America requirements for projects 

funded under the Fuel Cell Bus Program 

and allowed interested parties a 

reasonable time to comment on the 

proposed waiver. 

By an overwhelming margin, the 

commenters supported waiving FTA’s 

Buy America requirements. Of the nine 

parties that submitted comments, six 

favor and only one opposes waiving 

FTA’s Buy America requirements. The 

remaining two comments were 

ambiguous. One expressed interest in 

working with FTA but did not state its 

position on waiving FTA’s Buy America 

requirements. The other stated the 

commenter’s intent to submit comments 

at a later date (this intent was not 

realized as this party has not submitted 

comments to date). The following is a 

summary of the comments received. 

1. GE Global Research stated, ‘‘[t]his 

program is supporting leading-edge 

research that requires sourcing partners 

from around the world to satisfy the 

challenging requirements set forth in the 

program.’’

2. The Northeast Advanced Vehicle 

Consortium commented, ‘‘[t]he very 

nature of the research * * * requires 

that participating corporations are 

granted access to the most appropriate 

and advanced technologies in, what is 

in the United States, a nascent industry. 

Several of the participating business 

[sic], all experts in fuel-cell 

transportation research and 

development, have determined that 

procuring the best possible technologies 

will at times require them to acquire 

parts from foreign sources if they are to 

develop internationally competitive 

transportation products. * * * any 

delay in this critical development 

program [is] a lost opportunity to satisfy 

America’s transportation needs for the 

twenty-first century.’’

3. Alameda-Contra Costa Transit 

District (AC Transit), an entity that has 

been developing fuel cell bus 

technology and supporting hydrogen 

fueling infrastructure since 1999, 

expressed its support of FTA’s 

recommendation to waive the Buy 

America requirements for projects 

funded under the Fuel Cell Bus 

Program, stating that ‘‘FTA staff has 

made a convincing case for a sound and 

reasonable process to expedite the 

research and development efforts in 

support of the deployment of fuel cell 

technology in the United States.’’

According to AC Transit, demonstrating 

‘‘overall vehicle reliability and 

durability under real-world, heavy-duty 

operating conditions’’ will open up ‘‘a 

new generation of technology * * * that 

not only can deliver significant benefits 

in air quality, noise reduction, and 

carbon emissions reductions, but will 

serve to help diversify our nation’s fuel 

supply towards the goal of energy 

independence.’’

4. Nuvera Fuel Cells, a U.S.-based 

company that utilizes international 

cooperation for the fuel cell engine that 

will be used in the Fuel Cell Bus 

Program, supports a waiver, stating that 

‘‘[t]his waiver is important to ensure 

timely access to the latest engine 

technology.’’

5. UTC Power, a United Technologies 

Company based in South Windsor, 

Connecticut, supports waiving FTA’s 

Buy America requirements because (1) 

‘‘the waiver will facilitate timely 

achievement of the Fuel Cell Bus 

Program objectives’’; (2) ‘‘validation of 

the commercial viability of fuel cell 

buses will stimulate and further expand 

the U.S. fuel cell industry’’; and (3) ‘‘the 

scope of the waiver is limited solely to 

the Fuel Cell Bus Program.’’

6. Santa Clara Valley Transportation 

Authority supports FTA’s proposal ‘‘so 

that [fuel cell bus] technology can 

develop beyond the present 

developmental/technical validation 

phase.’’

7. Delphi Corporation submitted 

comments but did not state whether it 

favored or disfavored waving FTA’s Buy 

America requirements for projects 

funded under the Fuel Cell Bus 

Program. Delphi believes that its ‘‘U.S.- 

developed fuel cell technology is 

applicable to heavy duty vehicle 

applications,’’ and ‘‘look[s] forward to 

any current or future opportunities to 

work with the FTA on assessing, 

developing, demonstrating and 

commercializing solid oxide fuel cell 

systems in public transit applications.’’

8. Air Products and Chemicals, Inc. 

(Air Products) submitted comments 

opposed to waiving FTA’s Buy America 

requirements. According to Air 

Products, ‘‘domestic sourcing difficulty 

does not apply to hydrogen fueling 

infrastructure and hydrogen’’ because 

‘‘the two largest merchant hydrogen 

producers in the world are United States 

companies. The production capacity of 

these two firms can easily fuel 1 million 

personal vehicles or 30,000 buses.’’

9. North American Bus Industries 

(NABI) submitted a comment stating 

that it ‘‘intends to provide comments on 

the captioned matter within the next 

seven to ten days.’’ To date, FTA has not 

received comments from NABI. 

Response to Comments 

While it is not the intent of FTA to 

support or fund foreign suppliers of 

fueling infrastructure, FTA does feel 

that restricting the selected projects to 

U.S. suppliers would limit the ability of 

the managing consortia to select and 

demonstrate a range of innovative 

technologies. 

FTA agrees with Air Products that the 

Nation would be poorly served by a 

research program that contributes to the 

transfer of market leadership or 

Intellectual Property (IP) to foreign 

interests in the market for hydrogen 

infrastructure. FTA has determined that 

the infrastructure components of the 

Fuel Cell Bus Program are very small 

relative to the national hydrogen 

infrastructure markets, and appear to 

involve predominantly U.S. suppliers of 

infrastructure. Furthermore, some 

demonstration sites have not finalized 

plans for fueling infrastructure. 

Requiring project managers to apply for 

individual waivers as these decisions 

are finalized will significantly delay 


pwalker on PROD1PC71 with NOTICES
46352 Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 

project implementation. It would also 

restrict the flexibility of the sites to 

quickly change project partners and cost 

share, which is important in research 

programs to respond to unforeseen 

problems. 

Therefore, FTA feels there is no risk 

that this research program will 

contribute to the transfer of market 

leadership from a U.S. to a foreign entity 

in the national market for hydrogen 

infrastructure. 

In regard to IP, FTA fully appreciates 

the importance of IP in highly 

competitive industries. FTA has no 

interest in facilitating the transfer of IP 

from U.S. firms to foreign entities. FTA 

assures all concerned that, within the 

Fuel Cell Bus Program, all IP developed 

or retained by U.S. interests will remain 

under the control of those interests. 

There is no additional risk that IP 

belonging to U.S. interests will be 

unwittingly transferred to outside 

entities. Foreign companies 

participating in the National Fuel Cell 

Bus Program are required to agree to 

standardized data collection. Objective 

evaluations of the bus demonstration 

programs are a major component of the 

program and will provide U.S. 

companies non-proprietary performance 

data and analysis of all fueling 

infrastructure used in the program. 

FTA recognizes that U.S. companies 

have significant experience developing 

and operating hydrogen fueling stations. 

However, though hydrogen production 

has advanced further than fuel cell 

technology, FTA determines it is still 

beneficial to examine all available and 

developing technologies. In cases where 

infrastructure funding is a major 

component of the project, it is focused 

on novel applications, not on replicating 

or competing with efforts where U.S. 

companies have already proven to be 

capable leaders. 

In conclusion, FTA’s review of the 

selection process and industry 

comments relating to the Fuel Cell Bus 

Program support our judgment that the 

transit industry and American public at 

large will best be served by a fuel cell 

bus research program not bound by Buy 

America requirements. 

Waiver 

Therefore, after carefully considering 

all comments, and for the reasons stated 

in its justification above, FTA hereby 

waives 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 and 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. 

Issued this 31st day of July, 2008. 

Severn E.S. Miller, 

Chief Counsel. 

[FR Doc. E8–18313 Filed 8–7–08; 8:45 am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

[Docket Number: FTA–2008–0020] 

Final Guidance on New Starts/Small 

Starts Policies and Procedures 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Notice of Availability of Final 

Guidance on New Starts/Small Starts 

Policies and Procedures. 

SUMMARY: This notice conveys the 

Federal Transit Administration’s (FTA) 

Final Guidance on New Starts/Small 

Starts Policies and Procedures. 

DATES: Effective Date: These policies 

and procedures will take effect on 

August 8, 2008. 

FOR FURTHER INFORMATION CONTACT: Ron 

Fisher, Office of Planning and 

Environment, telephone (202) 366–

4033, Federal Transit Administration, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., East Building, 

Washington, DC 20590 or 

Ronald.Fisher@dot.gov. 

Availability of Comments Considered in 

the Development of This Guidance 

A copy of the notice of availability of 

the proposed Guidance, issued on April 

18, 2008, and comments and material 

received from the public as a part of its 

review of the proposed Guidance, are 

part of docket FTA–2008–0020 and are 

available for inspection or copying at 

the Docket Management Facility, U.S. 

Department of Transportation, West 

Building, Room W12–140, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590 between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. You may retrieve the 

comments online at: http:// 

www.regulations.gov. Enter docket 

number FTA–2008–0020 in the search 

field. In the ‘‘Narrow Results’’ section 

on the left side of the screen, click on 

‘‘Rules.’’ The Web site is available 24 

hours each day, 365 days each year. 

Electronic submission and retrieval help 

and guidelines are available under the 

help section of the Web site. An 

electronic copy of this document may 

also be downloaded by using a 

computer, modem and suitable 

communications software from the 

Government Printing Office’s Electronic 

Bulletin Board Service at (202) 512–

1661. Internet users may also reach the 

Office of the Federal Register’s home 

page at: http://www.nara.gov/fedreg and 

the Government Printing Office’s Web 

page at: http://www.gpoaccess.gov/fr/ 

index.html. 

Response to Comments and New and 

Small Starts Program Changes 

The purpose of this notice is to 

convey the Final Guidance on New 

Starts/Small Starts Policies and 

Procedures, reflecting the changes 

implemented as a result of comments 

received on the April 18, 2008 Notice of 

Availability (73 FR 21170). FTA finds 

that there is good cause to make this 

guidance effective upon publication of 

this notice in order to assist grantees to 

enter or complete development of 

proposed projects. 

1. Initiation Package 

FTA adopts as final its proposal to 

require that project sponsors beginning 

an alternatives analysis prepare and 

provide to FTA a package of information 

on: (1) The problems that motivate 

consideration of major transit 

alternatives in a corridor; (2) the 

alternatives that have been identified for 

consideration; and (3) the information 

that will be prepared to support 

decisions on the alternatives along with 

the identification of the general 

approach to development of that 

information. 

Preparing the package at the 

beginning of an alternative analysis 

allows FTA and other stakeholders to 

better understand the key 

considerations for an alternatives 

analysis. We anticipate that this will 

result in a more streamlined process. 

Comments: A significant number of 

respondents supported this measure as 

a way to discuss potential road blocks 

that may occur in the project 

development process. Several 

commenters opposed this proposal 

indicating the scope of the proposal is 

best suited for a rulemaking process and 

is beyond the level of change 

appropriate for annual policy guidance. 

Response: The proposal is a small 

change in FTA requirements that is 

properly implemented through policy 

guidance. 


pwalker on PROD1PC71 with NOTICES