Ms. Cheryl C. Burke
General Counsel
Washington Metro Area Transit Authority
600 Fifth Street, N.W.
Washington, D.C. 20001

Re: Request for Buy America Waiver/Contract FH-6318/500 Series Rail Cars

Dear Ms. Burke:

This letter is in response to your request, dated August 3, 1999 and amended on November 23, 1999, for a Buy America waiver for a second married pair of rail cars to be assembled by CAF of Spain. The Washington Metropolitan Area Transit Authority (WMATA) is not requesting a waiver of the 60% content requirement, just the final assembly requirement.

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 all rolling stock procured with Federal Transit Administration (FTA) funds must have a domestic content of at least 60 percent and must undergo final assembly in the United States. You request a waiver under 49 U.S.C. 5323(j)(2)(A). This section provides that the general Buy America requirements may be waived if "their application would be inconsistent with the public interest." The regulations implementing this section provide that "[i]n determining whether the conditions exist to grant this public interest waiver, the [FTA] will consider all appropriate factors on a case-by-case basis . . . ." 49 C.F.R. 661.7(b).

According to the information in your letter, WMATA asserts that this waiver is in the public interest because it will advance the schedule and enable WMATA to put new cars into service faster. This in turn will increase patron satisfaction by minimizing passenger overcrowding. According to your letter, WMATA ridership has increased overall by six percent since 1997, and weekday morning ridership has increased by 13.4%. You illustrate that the ability to test with a second married pair would advance the schedule by approximately three months.

Another important factor noted in your correspondence is the opening of the outer F line, which will add six miles of track and five new stations. This opening is currently scheduled for March 15, 2001. If new cars are not available by the time of this opening, WMATA will have to delay the opening or defer important overhaul and preventive maintenance.

In addition to the new line, WMATA is currently conducting two rehabilitation programs for its fleet. Advanced receipt of new cars would minimize the impact of taking these vehicles out of service for maintenance. WMATA asserts that this waiver would greatly enhance its ability to meet or improve on its schedule and significantly lessen the possibility of public inconvenience caused by an inadequate supply of railcars.

FTA implements the Buy America requirements in a manner that takes into account the realities of the industry and the practical necessities of foreign assembly of a prototype vehicle in appropriate circumstances. Pursuant to the provisions of 49 U.S.C. 5323(j)(2)(A), a waiver is hereby granted the above referenced procurement.

If you have any questions, please feel free to contact Meghan G. Ludtke, at (202) 366-4011.

Very truly yours,

(Signed)
Patrick W. Reilly
Chief Counsel