[Federal Register Volume 79, Number 55 (Friday, March 21, 2014)]
[Notices]
[Page 15797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06220]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2013-0038]
Notice of Buy America Waiver for the Pad and Rubber Boot of a
Concrete Block for a Low Vibration Track System
AGENCY: Federal Transit Administration, DOT.
ACTION: Notice of Buy America waiver.
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SUMMARY: In response to the MTA Capital Construction Company's (MTACC)
request for a Buy America waiver for the pad and rubber boot of a
concrete block for the Low Vibration Track (LVT) system that it is
constructing on behalf of New York Metropolitan Transportation
Authority's (MTA) operating agency, New York City Transit (NYCT), the
Federal Transit Administration (FTA) hereby waives its Buy America
requirements on the basis of non-availability for the pad and rubber
boot--components of the concrete blocks used in MTA's LVT system. This
waiver is limited to Phase 1 of the Second Avenue Subway Project and is
valid only for the pads and rubber boots already procured for this
project.
DATES: This waiver is effective immediately.
FOR FURTHER INFORMATION CONTACT: Mary J. Lee, FTA Attorney-Advisor, at
(202) 366-0985 or [email protected].
SUPPLEMENTARY INFORMATION: The purpose of this notice is to announce
that FTA is granting a non-availability waiver for the procurement of
pads and rubber boots that are a part of the concrete blocks used for
NYCT's LVT system. This LVT system currently is under construction as
part of Phase 1 of the Second Avenue Subway Project, which is an FTA-
funded project. This waiver is limited to Phase 1 of the Second Avenue
Subway Project and is valid only for the pads and boots already
procured for use in this project.
With certain exceptions, FTA's Buy America requirements prevent FTA
from obligating an amount that may be appropriated to carry out its
program for a project unless ``the steel, iron, and manufactured goods
used in the project are produced in the United States.'' 49 U.S.C.
5323(j)(1). A manufactured product is considered produced in the United
States if: (1) All of the manufacturing processes for the product take
place in the United States; and (2) all of the components of the
product are of U.S. origin. A component is considered of U.S. origin if
it is manufactured in the United States, regardless of the origin of
its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that
``the steel, iron, and goods produced in the United States are not
produced in a sufficient and reasonably available amount or are not of
a satisfactory quality,'' then FTA may issue a waiver (non-availability
waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
On September 11, 2013, MTACC formally requested a Buy America
waiver for the pad and rubber boot. This request came after FTA issued
a June 20, 2013 decision that the pad and rubber boot were components
of the concrete block--the manufactured end product. According to
MTACC, the LVT system for which the two components would be used to
address operational noise and vibration issues, which had been
identified as significant adverse impacts in the Final Environmental
Impact Statement and Record of Decision for the Second Avenue Subway
Project. In addition, among other things, the LVT system is designed to
meet National Fire Protection Association requirements and the vertical
and horizontal gap tolerances between the platform and the train floor
required to comply with the Americans with Disabilities Act.
Furthermore, according to MTA, the LVT system has a proven performance
history, an expected useful life in excess of 60 years, and would meet
the performance requirements of MTA-NYCT's standard specifications.
In its September 11, 2013 request, MTACC also stated that it had,
at the time of the procurement, believed that the pad and rubber boot
were subcomponents and that they could be foreign-sourced while
remaining in compliance with FTA's Buy America requirements.
Notwithstanding FTA's caution and this pending waiver request, MTACC
has continued to proceed with construction of its LVT system.
On December 17, 2013, FTA published a Federal Register notice
requesting comment on MTACC's waiver request. 78 FR 76402. No comments
were received to the docket.
Concurrently, FTA is working with the U.S. Department of Commerce,
National Institute for Standards and Technology (NIST), to determine if
there are U.S. manufacturers that may be willing and able to
manufacture the pad and rubber boot.
Notwithstanding FTA's research and the possibility that there may
be a pad and rubber boot domestically manufactured in the future,
because testing of any new product for MTA's LVT system likely would
halt the Second Avenue Subway project and could cause an additional
delay of over one year, FTA is hereby granting a non-availability
waiver for the pad and rubber boot. As stated above, this waiver is
limited to Phase 1 of the Second Avenue Subway Project and is valid
only for the pads and boots already procured for use in this project.
For any potential Buy America waiver requests that MTA and its
operating administrations may decide to make in the future regarding
the pad and the rubber boot (or other materials), FTA expects that such
requests will be made prior to contract award. While MTACC originally
procured the pad and the rubber boot based upon its belief that those
items were subcomponents, MTA is now aware that the pad and rubber boot
are components of the concrete block. Therefore, FTA will carefully
scrutinize any future waiver requests per 49 CFR 661.7(c) and such
waiver requests are unlikely to be granted if FTA determines that MTA
has not continued its good faith efforts to seek U.S.-manufactured pads
and rubber boots. FTA views good faith efforts to include, among other
things, engaging U.S. manufacturers in an effort to develop components
that are made in the United States, or seeking technical assistance
from FTA.
Dana Nifosi,
Deputy Chief Counsel.
[FR Doc. 2014-06220 Filed 3-20-14; 8:45 am]
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