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Updated Guide to Buy America Requirements—2015 Supplement (2017)

Chapter: II. HISTORY OF FTA BUY AMERICA

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Suggested Citation:"II. HISTORY OF FTA BUY AMERICA." National Academies of Sciences, Engineering, and Medicine. 2017. Updated Guide to Buy America Requirements—2015 Supplement. Washington, DC: The National Academies Press. doi: 10.17226/24780.
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Suggested Citation:"II. HISTORY OF FTA BUY AMERICA." National Academies of Sciences, Engineering, and Medicine. 2017. Updated Guide to Buy America Requirements—2015 Supplement. Washington, DC: The National Academies Press. doi: 10.17226/24780.
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Suggested Citation:"II. HISTORY OF FTA BUY AMERICA." National Academies of Sciences, Engineering, and Medicine. 2017. Updated Guide to Buy America Requirements—2015 Supplement. Washington, DC: The National Academies Press. doi: 10.17226/24780.
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Suggested Citation:"II. HISTORY OF FTA BUY AMERICA." National Academies of Sciences, Engineering, and Medicine. 2017. Updated Guide to Buy America Requirements—2015 Supplement. Washington, DC: The National Academies Press. doi: 10.17226/24780.
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Suggested Citation:"II. HISTORY OF FTA BUY AMERICA." National Academies of Sciences, Engineering, and Medicine. 2017. Updated Guide to Buy America Requirements—2015 Supplement. Washington, DC: The National Academies Press. doi: 10.17226/24780.
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Suggested Citation:"II. HISTORY OF FTA BUY AMERICA." National Academies of Sciences, Engineering, and Medicine. 2017. Updated Guide to Buy America Requirements—2015 Supplement. Washington, DC: The National Academies Press. doi: 10.17226/24780.
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9other federal transportation agencies originated in 1978 as a result of congressional concern that the BAA was not being applied to federal transportation grant funds. With the Surface Transportation Assis- tance Act (STAA) of 1978, Congress enacted a Buy America provision that applied to projects funded by both UMTA and FHWA.62 The 1978 STAA Buy America provision closely mirrored the BAA. As a general rule, it provided that UMTA grant funds could be used to purchase only unmanufactured goods “mined or produced in the United States,” or manufactured products “manufac- tured in the United States substantially all from” such domestic goods.63 There were also a number of exceptions, which mirror the types of waivers that are available today, although the criteria for excep- tions were generally easier to achieve in 1978.64 Perhaps most prominently, the 1978 STAA Buy America provision included a very broad Small Purchase exception, so that the statute applied only to projects or procurements in which the “total cost exceeds $500,000.”65 This exempted all but the most significant procurements from the 1978 STAA require- ments. In addition, the statute provided a Public Inter- est exception (when application of the STAA Buy America provision “would be inconsistent with the public interest”), and a Non-Availability exception (when goods were “not mined, produced, or manufac- tured in the United States in sufficient and reasonably available quantities and of a satisfactory quality”).66 The statute also provided a Price Differential exception, so that the 1978 STAA Buy America provision would not apply if including domestic material would “increase the cost of the overall proj- ect contract by more than 10 per centum.”67 There was an additional “unreasonable cost” exception applicable only to rolling stock procurements,68 which presumably would permit the purchase of foreign rolling stock based on higher prices of domes- tic rolling stock in situations when the 10 percent Price Differential was not satisfied. Furthermore, regulations promulgated by UMTA established that manufactured products were consid- ered domestic as long as the cost of domestic 59 See World Trade Org., Agreement on Government Pro- curement, App. 1, United States, General Notes, WT/Let/672 (Mar. 22, 2005); North American Free Trade Agreement, Part IV: Government Procurement, ch. 10, § A, art. 1001. 60 Hughes, supra note 9, at 224 (“Since FTA-funded transit procurements are made by state and local gov- ernments, Buy America rules have continued to be applied.”). 61 FTA, Buy America—Frequently Asked Questions, https://www.transit.dot.gov/funding/procurement/third- party-procurement/buy-america. 62 STAA 1978, supra note 27. For a detailed discussion of the legislative history of the 1978 STAA Buy America provision, see Hughes, supra note 9, at 213 16. 63 STAA 1978, supra note 27. 64 For a detailed discussion of the waivers available at the time, see ProBlems conFronting u.s. urBan railcar manuFacturers in the international market, comP. gen. reP’t no. CED 79 66, Docket No. B 169491, at 55 56 (1979). 65 STAA 1978, supra note 27. 66 Id. 67 Id. 68 Id. 5. Free Trade Agreements As previously noted, the BAA has been waived for transactions covered by the WTO Agreement on Government Procurement and other free trade agreements such as the North America Free Trade Agreement (NAFTA). The WTO Agreement on Government Procurement and most free trade agree- ments (including NAFTA) do not apply to transpor- tation grant programs, however, because such agreements typically define “procurement” to exclude federal grant funds to state government agencies.59 Therefore, goods from foreign trading partners are not treated as domestic products for purposes of the FTA Buy America provision. Although federal agencies such as FTA may make direct purchases from foreign trading partners, pursuant to a Public Interest waiver from the BAA, FTA has not provided a similar waiver from the FTA Buy America provi- sion for such procurements by FTA grant recipients, such as state and local transit agencies.60 In October 2010, FTA confirmed that, “while products manufac- tured in a WTO covered country may be eligible for direct Federal procurements under the” BAA, the FTA Buy America provision “requires manufactured products to be manufactured in the United States, unless the product qualifies for a waiver.”61 II. HISTORY OF FTA BUY AMERICA The lengthy regulations that implement the FTA Buy America provision are complex and at first can appear overwhelming to someone unfamiliar with the provision. The FTA Buy America provision originated as a relatively simple set of requirements, however, and has evolved over time to address congressional concerns with regard to potential abuses and loop- holes, as well as practical concerns of FTA grant recip- ients and manufacturers. It is helpful to briefly review the legislative and regulatory history of the FTA Buy America provision to better understand what the regulations are intended to accomplish. A. 1978 Surface Transportation Assistance Act As discussed in Section I.C.2, Buy America requirements for FTA (then known as UMTA) and

10 components was at least 50 percent of the total cost of all components and final assembly of components took place in the United States.69 Thus, UMTA effec- tively established a Domestic Content exception that permitted significant foreign content in all manufac- tured products, not just rolling stock. UMTA consid- ered the “components” to include any “article, material, or supply” directly incorporated into the manufactured product at its final assembly location.70 Components were considered domestic as long as they were manufactured in the United States, disre- garding the origin of their parts (i.e., subcomponents). If an “engineered system” consisting of several parts was delivered to the final assembly location and incorporated into the end product, then the entire system would be treated as a “component” for purposes of calculating domestic content.71 Therefore, manufacturers could assemble a number of foreign parts into a “system” at a location in the United States, and the system would be considered an entirely domestic component for purposes of calculat- ing domestic content of the end product. In 1979, GAO concluded that the 1978 STAA Buy America provision “does not appear to pose any major barriers to foreign firms from competing in the United States provided they are willing to adjust their manu- facturing procedures or assembly locations.”72 UMTA’s regulations that implemented the 1978 STAA Buy America provision also established the requirement for successful bidders to submit a Buy America compliance certificate, certifying that the bidder would comply with the 1978 STAA Buy America provision unless an appropriate waiver was granted.73 Potential penalties for failure to comply with the certification included civil action (e.g., lawsuit for breach of contract), debarment, and criminal prosecution.74 B. 1982 Surface Transportation Assistance Act The STAA Buy America provision applicable to UMTA grant-funded procurements was revised significantly by the 1982 STAA, which removed unmanufactured goods from coverage but specifically prohibited the purchase of foreign-manufactured products, steel, and cement.75 (Cement was subse- quently removed from the list of covered goods in 1984.76 Iron was added to the list of covered goods in 1991.)77 The 1982 STAA Buy America provision also eliminated the $500,000 cost threshold, so that domestic preferences applied to all purchases of steel and manufactured products using FHWA or UMTA grant funds. The 1982 STAA Buy America provision also added specific numeric criteria for objective applica- tion of the waivers. First, the Unreasonable Cost waiver for rolling stock was replaced with a 10 percent Price Differential waiver applicable only to rolling stock, with a more stringent 25 percent Price Differential waiver applicable to all other manufac- tured products, as well as steel.78 Second, Congress replaced the exception for foreign content in a “substantially” domestic manu- factured product with a 50 percent Domestic Content waiver applicable only to rolling stock, specifically allowing rolling stock (including train control, communication, and traction power equipment) to be purchased if it was assembled in the United States of at least 50 percent domestic components.79 With the Domestic Content waiver, Congress “essen- tially established an entirely new Buy America program with its own requirements, applicable only to rolling stock.”80 There was no Domestic Content waiver for other manufactured products, suggesting that manufactured products other than rolling stock must contain 100 percent domestic content. UMTA adopted regulations to implement the new stricter Buy America provisions in September 1983.81 At the time of the enactment of the 1982 STAA, UMTA was considering whether to account for the origin of subcomponents in the calculation of 69 Buy America Requirements, 43 Fed. Reg. 57,144 (Dec. 6, 1978) (codifed at 49 C.F.R. § 660.22 (1981)). 70 49 C.F.R. § 660.13(c) (1981); see also ProBlems conFronting u.s. urBan railcar manuFacturers in the international market, comP. gen. reP’t no. CED 79 66, Docket No. B-169491, at 54 (1979). 71 Buy America Requirements, 46 Fed. Reg. 5,808 (Jan. 19, 1981). 72 ProBlems conFronting u.s. urBan railcar manuFac- turers in the international market, comP. gen. reP’t no. CED 79 66, Docket No. B-169491, at 28 (1979). 73 49 C.F.R. § 660.21 (1981). 74 49 C.F.R. §§ 660.41–660.44 (1981). 75 Surface Transportation Assistance Act of 1982, Pub. L. No. 97-424, § 165, 96 Stat. 2097, 2136–37 (Jan. 6, 1983) [hereinafter STAA 1982]. 76 Pub. L. No. 98-229, § 10, 98 Stat. 55 (Mar. 9, 1984); see also Buy America Requirements, 50 Fed. Reg. 2,289 (Jan. 16, 1985). 77 Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, § 1048, 105 Stat. 1914 (Dec. 18, 1991); see also General Material Requirements, 58 Fed. Reg. 38,973 (July 21, 1993). 78 STAA 1982, supra note 75, at § 165(b)(4). The 10 per- cent Price Differential waiver for rolling stock meant that FTA grant recipients could obtain a waiver to purchase for- eign rolling stock if the price of the foreign rolling stock, multiplied by 1.1, was still less than the price of comparable domestic bids. 79 Id. § 165(b)(3). 80 TCRP LRD 31, supra note 2, at 5. 81 Buy America Requirements, 48 Fed. Reg. 41,562 (Sep. 15, 1983).

11 domestic content. Because the 1982 STAA effec- tively repealed UMTA’s previous Domestic Content exception for all manufactured products, however, UMTA decided not to address the subcomponent issue at that time.82 UMTA did identify a number of specific manufactured products that it considered to be subject to the new Domestic Content waiver for rolling stock as “train control, communication, and traction power equipment.”83 C. 1987 Surface Transportation and Uniform Relocation Assistance Act In 1987, with the Surface Transportation and Uniform Relocation Assistance Act (STURAA), Congress significantly strengthened Buy America requirements for rolling stock.84 First, the Price Differential waiver criterion for rolling stock was increased from 10 percent to 25 percent.85 Second, the Domestic Content waiver criterion for rolling stock was increased from 50 percent to 55 percent as of fiscal year (FY) 1989 and to 60 percent as of FY 1991.86 In addition, Congress required that the origin of both components and subcomponents be considered in the evaluation of Domestic Content of rolling stock.87 Finally, Congress implemented a requirement for pre-award and post-delivery audits for rolling stock, in part to ensure compliance with the Buy America provision.88 Not until January 1991, almost 4 years after passage of STURAA, did UMTA adopt revised regu- lations to implement the new Buy America require- ments.89 The more notable revision at that time was UMTA’s formal adoption of two nonexhaustive lists of “typical” components of buses and rail rolling stock. These lists were provided in response to Congress’s direction that the origin of subcompo- nents be considered in evaluating the Domestic Content waiver for rolling stock, “and to prevent possible abuses resulting from an over-classification of vehicles parts as subcomponents.”90 By identifying typical rolling stock components, manufacturers would no longer be able to bundle components into “systems” and thereby classify components as subcomponents of the system. Rather, the rolling stock components would always include those on UMTA’s lists of typical components, and the subcom- ponents would be those parts that are “one step removed” from components.91 In September 1991, UMTA first adopted regula- tions prescribing procedures for the pre-award and post-delivery audits of Buy America compliance required by STURAA.92 In response to the “confu- sion that generally reigned after the institution of pre-award and post-delivery audit requirements,”93 in 1992, FTA first published a list of typical ques- tions and answers94 and in 1995, FTA published extensive guides for conducting audits for rail procurements95 and bus procurements.96 In 1997, after determining that grant recipients were still “not conducting adequate reviews of the Buy Amer- ica requirements,” FTA published a “Dear Colleague” letter that contained a list of typical “final assembly activities” that must take place at the final assembly location97 to satisfy the statutory requirement that final assembly take place in the United States. D. 1990s Amendments Although FTA’s guidance for implementing the pre-award and post-delivery audit requirements enacted by Congress in 1987 continued to evolve through the 1990s, Congress only made modest 90 Id. 91 Id. 92 Pre-Award and Post-Delivery Audits of Rolling Stock Purchases, 56 Fed. Reg. 48,384 (Sep. 24, 1991). 93 TCRP LRD 31, supra note 2, at 6. 94 Pre-Award, Post-Delivery Audits of Rolling Stock Questions and Answers, 57 Fed. Reg. 10,834 (Mar. 31, 1992). 95 FTA, conducting Pre-aWard and Post-delivery revieWs For rail vehicle Procurements, Report No. FTA- DC-90-7713-94-1, Rev. B (May 1, 1995), available at https:// web.archive.org/web/20150918092503/http://www.fta.dot. gov/legislation_law/12921_5424.html. 96 FTA, conducting Pre-aWard and Post-delivery revieWs For Bus Procurements, Report No. FTA- DC-90-7713-93-1, Rev. B (May 1, 1995), available at https://www.transit.dot.gov/regulations-and-guidance/buy- america/conducting-pre-award-and-post-delivery-audits- bus-procurements. 97 Buy America: Pre-Award and Post-Delivery Audits, Number C 97 03 (Mar. 18, 1997), available at https://www. transit.dot.gov/regulations-and-guidance/policy-letters/buy- america-pre-award-and-post-delivery-audits. FTA amended the “Dear Colleague” letter in August 1997, but the amended letter was almost immediately rescinded in Sep- tember 1997. TCRP LRD 31, supra note 2, at 7. 82 Id. (“[I]n view of the statutory changes that have taken place, we have not included that proposed provision [regarding subcomponents] in our regulations implement- ing” the STAA Buy America provision.). 83 Id. 84 For a detailed discussion of the legislative history of the STURAA changes to the Buy America provision, see Hughes, supra note 9, at 219 20. 85 Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub. L. No. 100 17, § 337(c), 101 Stat. 241 (Apr. 2, 1987). 86 Id. § 337(a). 87 Id. § 337(b). 88 Id. § 319. 89 Buy America Requirements, 56 Fed. Reg. 926 (Jan. 9, 1991).

12 changes to the Buy America statutory requirements in the 1990s.98 With passage of the Intermodal Surface Transpor- tation Efficiency Act of 1991 (ISTEA), Congress changed UMTA’s name to FTA.99 Congress also added iron to the list of materials covered by the FTA Buy America provision (along with steel, manufactured products, and rolling stock).100 In 1994, Congress formally codified the FTA Buy America provision, formally separating it from the FHWA Buy America provision.101 Prior to this time, ever since enactment of the 1978 STAA, the statu- tory Buy America requirements for the two agencies had been identical, although they had been adminis- tered very differently by the two agencies.102 In 1995, FTA issued a general Public Interest waiver for all procurements within the “simplified acquisition threshold” for federal procurements, which at the time was $100,000.103 This Small Purchase waiver granted in 1995 has remained in effect over the years and has served to exempt less- significant purchases from the FTA Buy America provision. (In December 2015, Congress formally adopted the Small Purchase waiver and set the purchase threshold at $150,000.104) In 1998, with the passage of the Transportation Equity Act for the 21st Century (TEA-21), Congress formally adopted the list of typical final assembly activities for buses from FTA’s 1997 “Dear Colleague” letter, establishing a minimum set of activities that must take place in the United States.105 TEA-21 also provided that bidders could correct “inadvertent errors” in the Buy America certifications after bid opening.106 It was not until 2003, however, that FTA adopted regulations that prescribe a procedure for correcting inadvertent certification errors.107 E. 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users Congress initiated a significant update of the FTA Buy America provision with the 2005 U.S. Department of Transportation (USDOT) appropri- ations bill known as the Safe, Accountable, Flexi- ble, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).108 Many of the changes to the FTA Buy America provision in SAFETEA- LU were aimed at closing potential loopholes and perceived abuses of the FTA Buy America provi- sion. With respect to Public Interest waivers, Congress repealed some long-standing general waivers,109 required FTA to limit the applicability of others,110 and imposed heightened notice-and- comment requirements on future Public Interest waivers.111 With respect to manufactured products, Congress required FTA to formally define the term “end product,” develop rules “to ensure that major system procurements are not used to circumvent the Buy America requirements,” and provide a list of “representative items,” such as end products or systems that FTA considers subject to the FTA Buy America provision.112 Finally, with respect to bid certification and enforcement, Congress required FTA to clarify how the FTA Buy America compliance certification requirement applies to negotiated procurements,113 to issue formal rules governing the process for granting waivers after the bidder has certified compliance,114 98 TCRP LRD 31, supra note 2, at 7 (“The Buy Amer- ica provisions applicable to transit procurements were generally untouched by Congress in the 1990s….”); Hughes, supra note 9, at 221 (“The amendments made were slight.”). 99 Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, § 3004, 105 Stat. 1914 (Dec. 18, 1991). 100 Id. § 1048; see also Buy America Requirements, 61 Fed. Reg. 6,300 (Feb. 16, 1996). 101 Pub. L. No. 103-272, § 1(e), 108 Stat. 745 (Jul. 5, 1994) (codified at 49 U.S.C. § 5323(j)). 102 For a comparison of the FHWA and FTA Buy Amer- ica provisions, see NCRRP LRD 1, supra note 3, at 37 72. 103 Buy America Requirements, 60 Fed. Reg. 37,930 (Jul. 24, 1995); see also Buy America Requirements, 60 Fed. Reg. 14,174, 14,175 (Mar. 15, 1995) (waiving the FTA Buy America provision for purchases of $2,500 or less). 104 Fixing America’s Surface Transportation Act, Pub. L. No. 114-94, § 3011(2)(E), 129 Stat. 1312, 1475 (Dec. 4, 2015) (codified at 49 U.S.C. § 5323(j)(13)). 105 Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, § 3035, 112 Stat. 107 (Jun. 9, 1998). 106 Id. § 3020(b). 107 Buy America Requirements—Amendment to Certi- fication Procedures, 68 Fed. Reg. 9,798 (Feb. 28, 2003); see also FTA, Best Practices Procurement manual, ch. 4, § 4.3.3.2.2 (rev. Nov. 2003) [hereinafter BPPM], available at https://www.transit.dot.gov/funding/procurement/best- practices-procurement-manual. 108 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, § 3023(i), 119 Stat. 1144 (Aug. 10, 2005) [hereinafter SAFETEA-LU]. 109 Id. § 3023(i)(4). The repeal of the waiver for Chrysler vans is discussed in detail in Section IV.A.4. 110 Id. § 3023(i)(5)(A). The history of the microcomputer waiver is discussed in detail in Section IV.A.3. 111 Id. § 3023(i)(1)(B). The notice-and-comment require- ments for Public Interest waivers are discussed in Sections IV.B.1.c and IV.B.3. 112 Id. § 3023(i)(5)(B). The treatment of manufactured products under the FTA Buy America provision following SAFETEA-LU is discussed in Section III.A. 113 Id. § 3023(i)(5)(D). The application of the FTA Buy America provision to negotiated procurements is dis- cussed in Section V.A. 114 Id. § 3023(i)(5)(C). The process for post-award waivers is discussed in Section IV.B.1.b).

13 and establish potential criminal liability for false certifications.115 Over the next several years, in response to SAFETEA-LU, FTA engaged in a lengthy rulemaking process that significantly transformed the FTA Buy America provision.116 In November 2005, FTA issued its first notice of proposed rulemaking (NPRM I) in response to SAFETEA-LU, inviting public comment on its proposed regulatory revisions.117 In March 2006, FTA issued an interim final rule that addressed a subset of the topics raised in NPRM I, including the repeal of Public Interest waivers for Chrysler vans, the requirements for Buy America certification in a negotiated procurement, and other minor revisions to the FTA Buy America provision.118 In November 2006, FTA issued its second notice of proposed rulemaking (NPRM II) in response to SAFETEA-LU, inviting further public comment on issues identified in NPRM I but not addressed in the interim final rule.119 The final rule, issued in September 2007, addressed the remaining topics, including application of the general waiver for microcomputers and software, the notice- and-comment requirements for a Public Interest waiver, the standards for granting a post-award waiver, and the treatment of end products and systems procurements “to ensure that major system procurements are not used to circumvent the Buy America requirements.”120 Most notably, in the 2007 final rule, FTA abandoned its long-standing practice of defining the “end product” for purposes of the FTA Buy America provision as the contract deliverable specified in the contract between the FTA grant recip- ient and its contractor.121 Instead, FTA adopted a nonexhaustive list of representative end products (which includes vehicles and infrastructure projects), as well as a new “non-shift” methodology, whereby the end product is typically identified by reference to FTA’s list of representative end products and does not “shift” to reflect the contract deliverable.122 As a result of the SAFETEA-LU rulemaking, the FTA Buy America provision (especially the method for evaluating domestic content) became more straightforward, conducive to more consistent appli- cation, and generally easier to satisfy, even as the regulations became more detailed. The 2007 final rule largely established the FTA Buy America provi- sion as it exists today. Caution should be exercised when reviewing FTA guidance and waivers that pre-date SAFETEA-LU. The guidelines established by FTA as a result of SAFETEA-LU are discussed throughout the remainder of this digest. F. 2012 Moving Ahead for Progress in the 21st Century Act In the 2012 appropriations bill known as the Moving Ahead for Progress in the 21st Century Act (MAP-21), Congress made modest revisions to the FTA Buy America provision. Congress primarily required FTA to publish each “waiver determina- tion” both on the USDOT website and in the Federal Register and to allow a reasonable period of time for the public to comment on each waiver determina- tion.123 This effectively extended the notice-and- comments requirements for Public Interest waivers, imposed by Congress in 2005 with SAFETEA-LU, to all project-specific waivers of the FTA Buy America provision. MAP-21 also required FTA to submit annual reports to Congress listing all project-specific waivers of the FTA Buy America provision issued each year. The original version of MAP-21, which passed the U.S. Senate, would have applied the FTA Buy Amer- ica provision to all contracts comprising a single project if any single contract in the overall project was funded by FTA.124 This was part of a broader effort by the Senate to close a perceived “segmenta- tion” loophole, whereby USDOT grant recipients might segment projects into federally funded contracts (to which Buy America requirements would apply) and nonfederally funded contracts (which would not have Buy America requirements). For example, a 1987 light rail procurement by the San Francisco regional transportation authority had been segmented into a set of railcars to be manufactured using UMTA funds (which were subject to the Buy America provision) and another 115 Id. § 3023(j). Criminal penalties for false certifica- tions are discussed in Section V.D.I. 116 For a detailed discussion of FTA’s rulemaking in response to SAFETEA-LU, see TCRP LRD 31, supra note 2, at 7 12. 117 Buy America Requirements—Amendments to Defi- nitions and Waiver Procedures, 70 Fed. Reg. 71,246 (Nov. 28, 2005). 118 Buy America Requirements—Amendments to Defi- nitions, 71 Fed. Reg. 14,112 (Mar. 21, 2006). 119 Buy America Requirements—End Product Analysis and Waiver Procedures, 71 Fed. Reg. 69,412 (Nov. 30, 2006). 120 Buy America Requirements—End Product Analysis and Waiver Procedures, 72 Fed. Reg. 53,688 (Sep. 20, 2007). 121 Id. at 53,691. 122 Id. For a detailed discussion of the application of FTA’s “non-shift” methodology, see Sections III.A and III.B.1. 123 Moving Ahead for Progress in the 21st Century Act, Pub. L. No. 112-141, § 20016, 126 Stat. 405 (Jul. 6, 2012); see also Notice of FTA Transit Program Changes, Autho- rized Funding Levels and Implementation of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and FTA Fiscal Year 2013 Apportionments, Allocations, Program Information and Interim Guidance, 77 Fed. Reg. 63,670, 63,678 (Oct. 16, 2012). 124 S. 1813, 112th Cong. §§ 1528, 20017, 35210 (2012).

14 set of railcars that were manufactured using nonfed- eral funds (which were not subject to the Buy Amer- ica provision).125 Likewise, a 1993 rail construction project by the Los Angeles County transportation authority had been segmented into federally funded segments (which were required to comply with the FTA Buy America provision) and locally funded segments (which were not).126 However, as a result of FTA’s 2007 final rule in response to SAFETEA-LU, FTA no longer evaluates the “end product” for purposes of the FTA Buy America provision accord- ing to the contract deliverable.127 Instead, FTA now applies the FTA Buy America provision “to all procurement contracts under the project irrespec- tive of whether a recipient decides to fund a discrete part of the project without FTA funds.”128 This appears to effectively address segmentation concerns related to the FTA Buy America provision. Accordingly, the final version of MAP-21 enacted by Congress did not include the antisegmentation provision targeted at FTA and only retained the antisegmentation provision applicable to FHWA. MAP-21 provides that the FHWA Buy America provision applies “to all contracts eligible for assis- tance” from FHWA (such as utility relocation contracts), regardless of the actual funding source of those contracts, as long as at least one contract on the “project” is funded with FHWA funds.129 This means that when a project is jointly funded by both FHWA and FTA, the FHWA Buy America provision could apply to the entire project, even to segments or contracts funded exclusively by FTA and its grant recipient.130 However, MAP-21 did not change the statutory requirement that the FTA Buy America provision also applies to any project funded by FTA. Therefore, for jointly funded projects, even if the FHWA Buy America provision applies to an FTA- funded contract (as a result of MAP-21), the FTA Buy America provision still applies as well.131 G. 2015 Fixing America’s Surface Transportation (FAST) Act Since December 2015, with passage of the Fixing America’s Surface Transportation (FAST) Act, Congress has continued to strengthen the FTA Buy America provision. Pursuant to the FAST Act, FTA has been directed to increase the rolling stock domestic content criterion to 65 percent beginning in FY 2018 and to 70 percent beginning in FY 2020.132 FTA solicited public comments on the appli- cation of the heightened domestic content require- ments in April 2016133 and participated in a meeting with industry stakeholders regarding the new requirements in June 2016.134 In September 2016, FTA issued a policy state- ment under which the domestic content criterion applicable to a given rolling stock procurement is determined based on the scheduled delivery date of the first production vehicle (not including prototype vehicles).135 That is, if the first production vehicle in a given procurement is scheduled to be delivered on or after October 1, 2017, but before October 1, 2019, all vehicles in that procurement must contain at least 65 percent domestic content. If the first produc- tion vehicle in a given procurement is scheduled to 125 Dale Vargas & Ricardo Pimentel, Light-Rail Deal Gets House Attention: Agreement on Violation of Buy America Regulations Triggers Probe, sacramento Bee (Jan. 31, 1987). 126 Frank Haflich, Rail Project Bidding Altered: Foreign, Domestic Steelmakers Uncertain of Process, american metal market (Jan. 18, 1993). 127 Buy America Requirements—End Product Analysis and Waiver Procedures, 72 Fed. Reg. 53,688, 53,691 (Sept. 20, 2007). 128 FTA, third Party contracting guidance, ch. IV, at 19, Circular FTA C 4220.1F (rev. Mar. 18, 2013), available at https://www.transit.dot.gov/regulations-and-guidance/ fta-circulars/third-party-contracting-guidance. 129 Moving Ahead for Progress in the 21st Century Act, Pub. L. No. 112–141, § 1518, 126 Stat. 405, 574 (Jul. 6, 2012) (codified at 23 U.S.C. § 313(g)). 130 See, e.g., Letter from Dana Nifosi, FTA Deputy Chief Counsel, to Douglas Bauder, Southern California Edison (Apr. 30, 2014), available at https://www.transit.dot.gov/ regulations-and-guidance/buy-america/southern-california- edison-sce-april-30-2014. 131 FTA, third Party contracting guidance, ch. V, at 1, Circular FTA C 4220.1F (rev. Mar. 18, 2013), available at https://www.transit.dot.gov/regulations-and-guidance/ fta-circulars/third-party-contracting-guidance; see also Notice of Final Agency Guidance on the Eligibility of Joint Development Improvements Under Federal Transit Law, 72 Fed. Reg. 5,788, 5,792 (Feb. 7, 2007). Although this FTA guidance indicates that the FTA Buy America provision applies to projects funded jointly by FTA and FHWA, FHWA guidance suggests that on jointly funded projects, FTA could “transfer” funds to FHWA so that only the FHWA Buy America provision applies, or vice versa. See supra note 35. 132 Fixing America’s Surface Transportation Act, Pub. L. No. 114-94, § 3011(2)(A), 129 Stat. 1312, 1474 (Dec. 4, 2015) (codified at 49 U.S.C. § 5323(j)(2)(C)). 133 Notice of Proposed Policy Statement on the Imple- mentation of the Phased Increase in Domestic Content Under the Buy America Waiver for Rolling Stock, 81 Fed. Reg. 20,049 (Apr. 6, 2016). 134 Buy America Stakeholder Meeting Rolling Stock, Docket No. FTA 2016-0019 (Jun. 27, 2016), available at https://www.regulations.gov/document?D=FTA-2016- 0019-0026. 135 Notice of Policy on the Implementation of the Phased Increase in Domestic Content Under the Buy America Waiver for Rolling Stock and Notice of Public Interest Waiver of Buy America Domestic Content Requirements for Rolling Stock Procurement in Limited Circumstances, 81 Fed. Reg. 60,278, 60,281, 60,283 (Sept. 1, 2016).

Next: III. APPLICATION OF FTA BUY AMERICA DOMESTIC CONTENT REQUIREMENT »
Updated Guide to Buy America Requirements—2015 Supplement Get This Book
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TRB's Transit Cooperative Research Program (TCRP) Legal Research Digest 49: Updated Guide to Buy America Requirements—2015 Supplement examines various statutory and regulatory Buy America requirements that a state or local governmental entity must examine when receiving funds for a public transportation project from one or more USDOT agencies. The purpose of this Legal Research Digest is to update the earlier TRB legal research to provide a comprehensive and current summary of the FTA Buy America provision.

TRB first published its Guide to Federal Buy America Requirements in 2001 as TCRP Legal Research Digest 17. A 2009 supplement to the guide was published as TCRP Legal Research Digest 31, which addressed significant legislative changes to the FTA Buy America provision enacted by Congress in 2005, as well as FTA’s 2007 final rule implementing those changes. In 2015, the FTA Buy America provision was addressed again in National Cooperative Rail Research Program (NCRRP) Legal Research Digest 1, along with other federal transportation grant Buy America provisions that are applicable to federally funded rail projects.

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