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American Public Transportation Association

 Regulatory Update-FTA Buy America Domestic Content Notice of Final Policy

While it has not been officially published in the Federal Register yet, the Federal Transit Administration (FTA) has published a "Notice of Final Policy and Public Interest Waiver" regarding the implementation of the phased increase in Buy America domestic content requirements under the FAST Act.  In short, the final rule states that "scheduled delivery date of the first production vehicle" will control the applicable domestic content percentage.  The document can be found here​.  We expect the actual publication to be in tomorrow's federal register.  The final language will go up on our regulations page in the morning.  
As a reminder, the FAST Act increases the Buy America domestic content requirement for transit rolling stock from the current level of 60 percent to 65 percent in FY 2018 (October 1, 2017) and to 70 percent by FY 2020.  The legislation left it to FTA to determine the rules for contracts that span years with different domestic content requirements. 
APTA had filed comments requesting that FTA use the domestic content standard in effect on original solicitation date throughout the contract, but FTA decided that only the "delivery date" is consistent with the language of the FAST Act.  
From the publication: "The applicable domestic content percentage will be based on the scheduled delivery date of the first production vehicle (i.e., the first vehicle intended to carry passengers in revenue service), final acceptance notwithstanding. This approach is closest to the FAST Act's statutory language and to Congress' clear direction. If the delivery date slips into a subsequent FY due to unforeseen circumstances, FTA will address those situations on a case-by-case basis." 
This is not the solution APTA advocated for, but it provides greater clarity than FTA's original notice of proposed policy that would have simply applied the domestic content rules on the date of delivery.  FTA will consider the "scheduled delivery date of the first production vehicle" to give more notice and certainty throughout a procurement contract.
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