Guam, American Samoa, the Virgin Islands, and the Commonwealth of Northern Mariana Islands.

(49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51)

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5813, Jan. 19, 1981]

Subpart B-Implementation

§ 660.20 Purpose.

The purpose of this subpart is to prescribe the implementation of section 401 of the Act.

§ 660.21 Grantee responsibility.

(a) The grantee shall adhere to the Buy America clause set forth in its grant agreement with UMTA. The clause directly affects any third party contract utilizing funds obligated by UMTA after November 6, 1978. These requirements do not apply to any third party contract financed without UMTA funds or to any procurement or construction third party contract not exceeding $500,000. The Buy America clause will be included in any grant or loan agreement entered into by UMTA that exceeds $500,000.

(b) The grantee shall include in its bid specifications for procurement of equipment and construction of facilities within the scope of these regulations an appropriate notice of the Buy America provision. Such specifications shall require, as a condition of responsiveness, that the bidder or offeror submit with the bid a completed Buy America certificate, as set forth below:

BUY AMERICA CERTIFICATE

The bidder or offeror hereby certifies that each end product, except the end products listed below, is a domestic end product, as defined in 49 CFR 660.13(d); and that components of unknown origin have been considered to have been mined, produced, or manufactured outside the United States.

Excluded end products (show country of origin for each excluded end product):

(c) The grantee shall include in its bid specifications a statement that a waiver from the Buy America provision will be sought if the grounds for a waiver exist.

(49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51).

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5813, Jan. 19, 1981]

§ 660.22

Determination of origin.

(a) In order for a manufactured end product to be considered a domestic end product-(1) the cost of the domestic components must exceed 50 percent of the cost of all its components; and (2) the final assembly of the components to form the end product must take place in the United States.

(b) In determining the origin of components, each component must be treated as either entirely domestic or entirely foreign, based on the place where the component is mined, produced, or manufactured. Components of unknown origin must be treated as foreign. The origin of subcomponents of components is immaterial.

(c) Transportation costs to the place of incorporation into the end product and, in the case of foreign components, applicable duties, must be included in determining component cost under paragraph (a) of this section.

(d) The cost of a component is the price that a bidder or offeror must pay to a subcontractor or supplier for components. If the component is manufactured by the bidder or offeror, the cost of the component is the cost of labor and materials incorporated into the component and an allowance for profit and administrative and overhead costs attributable to that component under normal accounting principles.

(49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51)

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5814, Jan. 19, 1981]

Subpart C-Waivers

§ 660.30 Purpose.

The purpose of this subpart is to describe the procedure for obtaining waivers to section 401 of the Act, the types of statutory waivers that exist, when in the bid process waivers can be issued, and the effect of the waiver on bidding procedures.

§ 660.31 Application for waiver.

(a) A bidder who seeks to establish grounds for any waiver described in § 660.32 must seek the waiver, in a timely manner, through the grantee.

(b) In the case of third party contracts, only a grantee may request a waiver. The request must be in writing, include facts and justification to support the granting of the waiver, and be submitted to the Administrator through the Regional Administrator.

(c) A waiver may be granted by the Administrator on his own initiative.

(d) Each request for a waiver and UMTA's action on the request are available for public inspection under the provisions of 49 CFR Part 601, Subpart C.

(49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51)

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5814, Jan. 19, 1981]

§ 660.32 Types of waivers.

(a) Section 401(b) of the Act provides for four instances wherein a waiver of the "Buy America" provision may be granted. A waiver of the "Buy America" provisions will be granted if: (1) Their application would be inconsistent with the public interest;

(2) In the case of acquisition of rolling stock, their application would result in unreasonable cost (after granting appropriate price adjustments to domestic products based on that portion of project cost likely to be returned to the United States and to the States in the form of tax revenues);

(3) Supplies of the class or kind to be used in the manufacture of articles, materials, supplies are not mined, produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or

(4) Inclusion of domestic material will increase the cost of the overall project contract by more than 10 per centum.

(b) In determining whether the waiver described in paragraph (a)(1) will be granted, the Administrator considers all appropriate factors including, but not limited to, the cost, "red tape", and delay that would be im

posed if the provision were not waived. The Administrator will issue a written determination setting forth the reasons for the granting or denial of the waiver.

(c) In determining whether the waiver described in paragraph (a)(2) will be granted, only taxes paid by the bidder will be considered.

(d) A domestic end product will be presumed unavailable if no responsive and responsible domestic bid has been received and a waiver will be granted by UMTA.

(e) In determining whether the waiver in paragraph (a)(4) will be granted in cases where the apparent low bid offers foreign end products, the lowest responsive and responsible bid offering foreign end products will be multiplied by 1.1. If this number is less than the lowest responsive and responsible bid offering all domestic end products (including end products considered domestic under the provision of § 660.34(b)) then the waiver will be granted.

(f) The statutory waiver provisions of section 401 of the Act are separate and distinct from each other. End products and components of end products may be granted different waivers. (49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51)

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5814, Jan. 19, 1981]

§ 660.33 Relationship of waivers to bid process.

(a) Waivers may be issued that apply to broad classes of grants or particular types of end products, materials or supplies. A compilation of these waivers is listed in Appendix A.

(b) Waivers may be issued for a particular contract at any time based on information available to UMTA.

(49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51)

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5814, Jan. 19, 1981]

§ 660.34 Effect of waiver.

(a) If a waiver has been granted for an entire grant from UMTA or for an overall project contract planned to be

advertised by a grantee, the bid process may proceed without any requirement that bidders make the certification required by § 660.21.

(b) If a waiver or waivers do not encompass all of the articles, materials, and supplies scheduled to be delivered or constructed under the contract, then the computation of the domestic component required under §§ 660.21 and 660.22 shall treat as domestic the articles, materials, and supplies for which waivers have been given.

APPENDIX A-COMPILATION OF WAIVERS

ISSUED UNDER 660.33(a)

(a) The provision has been waived for all operating assistance grants under sections 5, 17 and 18 of the UMT Act, and for any operation assistance portions of grants under section 6 of the UMT Act.

(b) All waivers published in 41 CFR § 126.105 which established excepted articles, materials, and supplies for the Buy American Act of 1933, (41 U.S.C. 10a-d) as the waivers may be amended from time to time, are incorporated by reference.

(c) The provison is waived for foreign sourced spare parts whose total cost is 10% or less of the overall project contract cost.

(49 U.S.C. 1602, note (Sec. 401, Pub. L. 95599; 92 Stat. 2689); 41 U.S.C. 10a, 10c, and 10d; 49 CFR 1.51)

[43 FR 57145, Dec. 6, 1978, as amended at 46 FR 5814, Jan. 19, 1981]

(b) Any party may petition UMTA to investigate the compliance of a successful bidder with the bidder's certification. If UMTA determines that evidence indicates that the presumption of paragraph (a) of this section has been overcome, UMTA will require the grantee to initiate an investigation as described in § 660.42.

§ 660.42 Investigation.

When an investigation is initiated under § 660.41(b), the grantee shall require the successful bidder to document its compliance with its Buy America certification. The successful bidder has the burden of proof to establish to the grantee and to UMTA that it is in compliance with its certification and this part.

§ 660.43 Failure to comply with certification.

If a successful bidder fails to demonstrate that it is in compliance with its certification or this part, it will be required to substitute sufficient domestic materials, articles, and supplies to meet the terms of the original certification without revision of the original contract terms. Failure to comply will be a breach of contract and will be actionable under the terms of the contract and state law.

§ 660.44 Sanctions.

A willful refusal to comply with certification by a successful bidder may lead to the initiation of debarment proceedings under 29 CFR 5.6.

§ 660.45 Rights of third parties.

The sole right of any third party under the Buy America provision is to petition UMTA under the provisions of § 600.41(b). No third party has any additional right, at law or equity, for any remedy including, but not limited to, injunctions, damages, or cancellation of the Federal grant or contracts of the public body.

title VII of the Federal Aviation Act of 1958 (49 U.S.C. 1441), transferred to the Board under section 6 of the Department of Transportation Act (49 U.S.C. 1651 et seq.) and the Independent Safety Board Act of 1974 (88 Stat. 2166 et seq. (49 U.S.C. 1901 et seq.)). The Board is an independent agency of the United States. A detailed description of the Board and its components is published in the Board's internal orders, which are available for inspection and copying in the public reference room in the Washington office of the Board. The various delegations of authority from the Board and the Chairman to the staff units are set forth in Subpart B of this part. The Board's staff is comprised of the following principal units:

(a) The Office of the Managing Director, which assists the Chairman in the discharge of his functions as executive and administrative head of the Board, coordinates and directs the activities of the entire staff, is responsible for the day-to-day operation of the Board, and recommends and develops plans to achieve the Board's program objectives. Within the Office of the Managing Director are the activities which deal with general management, program analysis, legislative affairs, executive secretariat services, and FEDERAL REGISTER liaison.

(b) The Office of Public Affairs, which supplies the public, the news media, and the transportation industry with current, accurate information concerning the work, programs, and objectives of the Board.

(c) The Office of the General Counsel, which provides legal advice and assistance to the Board and its staff offices and bureaus, including policy matters; prepares Board rules, opinions and/or orders, and advice to all offices and bureaus on matters of legal significance; and represents the Board in court actions to which the Board is a party or in which the Board is interested.

(d) The Office of the Administrative Law Judges, which conducts all formal proceedings arising under title VI of the Federal Aviation Act of 1958, including proceedings involving suspension or revocation of airman certificates and appeals from actions of the