January 17, 2006

Mr. Christopher L. Crassweller
General Counsel
Orion Bus Industries
350 Hazelhurst Road
Mississauga, Ontario L5J 4T8

Dear Mr. Crassweller:

This letter responds to your correspondence dated October 26, 2005, in which you request a two-year extension of a component waiver for Orion Bus Industries’s (Orion) GKN axle used on the Orion II para-transit vehicle. FTA first granted this component waiver to Orion in February 1998, and has thereafter extended it several times. Although Orion no longer manufactures the Orion II vehicle, you request the waiver for the purpose of assisting transit authorities to purchase replacement components. For the reasons below, I have determined that the requested waiver is not appropriate here.

Applicable Law

Section 5323(j)(2)(C) of the Federal transit laws (49 U.S.C. 5301, et seq.) sets forth the general requirements for the procurement of rolling stock. This section provides that when rolling stock is procured with FTA funds, the cost of the components and subcomponents produced in the United States must be at least 60 percent of the cost of the components of the rolling stock; and the vehicle must undergo final assembly in the U.S. However, 49 U.S.C. 5323(j)(2)(B) states the Buy America requirements shall not apply if the item or items are not produced in the U.S. in sufficient and reasonably available quantities or are not of a satisfactory quality. The implementing regulation provides that non-availability waivers may be granted for a component and if granted, the component will be considered of domestic origin when calculating domestic content for the purposes of 49 C.F.R. 661.11. See 49 C.F.R. 661.7(f). The regulations allow a bidder or supplier to request a waiver only if it is being sought under this section. See 49 C.F.R. 661.7(f) and 49 C.F.R. 661.9(d).

Decision

You state that “Orion will not be manufacturing the Orion II, and the waiver is requested solely for the purpose of assisting transit authorities purchase (sic) replacement components.” FTA requested comment on this matter and received one response from a representative of Blue Bird Coachworks recommending denial of Orion’s waiver request.

Although suppliers may request component waivers under 49 C.F.R. 661.7(f) and (g), FTA is not aware that such a waiver has ever been granted for “aftermarket” replacement components, as you request. FTA will decline to grant such a waiver now. You have made no showing that this waiver is necessary. Certainly, if an FTA grantee needs to procure replacements for the Orion II axle, it can do so through normal solicitation methods. If the Orion II axle or its functional equivalent is not domestically available, a grantee can then request a standard non-availability waiver from FTA. However, it would subvert the purpose of Buy America to grant a blanket component waiver for replacement parts in this case.

If you have any questions, please contact Joe Pixley at (202) 366-1936.

Sincerely,

David B. Horner
Chief Counsel