[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)]
[Notices]
[Pages 15407-15408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06417]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2016-0006]
Notice of Proposed Buy America Waiver for Steel Excavator With a
Continuous Wield Platform
AGENCY: Federal Transit Administration, DOT.
ACTION: Notice of proposed Buy America waiver and request for comment.
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SUMMARY: The Federal Transit Administration (FTA) received a request
from the Metro North Railroad (MNR) for a Buy America non-availability
waiver for the procurement of a steel excavator with a continuous wield
platform (CWP). MNR seeks to procure a CWP to clear the right-of-way
after storms and thereby enabling the timely resumption of passenger
train service. MNR seeks a waiver for the requirement that final
assembly take place in the United States because there is no domestic
manufacturer available to produce the equipment. 49 U.S.C. 5323(j)(2)
and 49 CFR 661.7(c)(2). In accordance with 49 U.S.C. 5323(j)(3)(A), FTA
is providing notice of the non-availability waiver request and seeks
public comment before deciding whether to grant the request. If
granted, the waiver would apply to a one-time procurement only for the
specific equipment identified in the waiver request.
DATES: Comments must be received by March 29, 2016. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: Please submit your comments by one of the following means,
identifying your submissions by docket number FTA-2016-0006:
1. Web site: http://www.regulations.gov. Follow the instructions
for submitting comments on the U.S. Government electronic docket site.
2. Fax: (202) 493-2251.
3. Mail: U.S. Department of Transportation, 1200 New Jersey Avenue
SE., Docket Operations, M-30, West Building, Ground Floor, Room W12-
140, Washington, DC 20590-0001.
4. Hand Delivery: U.S. Department of Transportation, 1200 New
Jersey Avenue SE., Docket Operations, M-30,
[[Page 15408]]
West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
Instructions: All submissions must make reference to the ``Federal
Transit Administration'' and include docket number FTA-2016-0006. Due
to the security procedures in effect since October 2011, mail received
through the U.S. Postal Service may be subject to delays. Parties
making submissions responsive to this notice should consider using an
express mail firm to ensure the prompt filing of any submissions not
filed electronically or by hand. Note that all submissions received,
including any personal information therein, will be posted without
change or alteration to http://www.regulations.gov. For more
information, you may review DOT's complete Privacy Act Statement in the
Federal Register published April 11, 2000 (65 FR 19477), or you may
visit http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Laura Ames, FTA Attorney-Advisor, at
(202) 366-2743 or [email protected].
SUPPLEMENTARY INFORMATION: The purpose of this notice is to provide
notice and seek public comment on whether the FTA should grant a non-
availability waiver to the Metro North Railroad (MNR) for the
procurement of a steel excavator with a continuous wield platform
(CWP). On May 13, 2015, Metro requested a Buy America waiver for the
CWP because the only responsive bidder to its solicitation was a
Canadian manufacturer. While 77% of the content of the material would
be domestic origin, the CWP would be assembled in Canada. 49 U.S.C.
5323(j)(2)(A); 49 CFR 661.7(c).
By way of background, MNR operates commuter rail service spanning
787 track miles. Metro North has a large length of track along the
shore line and flooding along the line can occur regularly at many of
these locations. The risk of flooding can be reduced by keeping
drainage infrastructure, clear of debris. Specialized equipment such as
the CWP can quickly clear the right of way after storms enabling the
resumption of passenger train service. After Hurricane Sandy, MNR
leased a CWP, but given limited availability as well as the higher cost
of leasing, MNR believes that purchase of the CWP is necessary to
ensure that it will be available to expedite service restoration and
was provided funding to purchase such equipment from FTA through the
Section 5324 Emergency Relief Funds allocated for Superstorm Sandy.
A CWP is a train that consists of several platform suitable for
holding/hauling and picking up or distributing a variety of materials,
such as rocks, riprap, dirt or debris. The equipment is similar to a
excavator which has an articulated arm, with the main difference being
that it rides on rails and sits on a connected platform where it can
dump or pick up material from in order to perform its functions. The
main tasks the MNR uses the CWP for is shoreline stabilization/
restoration and for removing debris from the right-of-way after storms.
MNR prepared and advertised a solicitation for the CWP on January
9, 2015. Bids were due and opened on February 5, 2015. The solicitation
was advertised in local newspapers, the New York State Contract Report
and the MTA Metro-North Web site. A single bid was submitted by BRRI, a
Canadian firm. BRRI submitted a Certificate of Non-Compliance because
the final assembly of the equipment would take place in Canada,
although content of the material used would be 77% domestic origin. The
total gross sum of the bid submitted is $3,930,000.00.
MNR states that it received ``No Bid'' response forms from seven
vendors and that MNR contacted the vendors to determine why they did
not submit bids. The responses from the vendors varied from ``not
interested in selling'' to ``could not meet the requested bid due
date.'' MNR then performed an internet search to for American made
excavators with no results. MNR states that it then reached out to
Herzog Railroad Services, Inc. and Dymax Rail and was told by both that
they do not have the CWP in their fleet. Finally, MNR also contacted
the National Institute of Statistics and Technology (NIST) to determine
if there had been any research performed to identify U.S. manufacturers
for this equipment. To date NIST has not conducted any supplier
scouting or analyses for the item.
On August 15, 2015, FTA contacted MNR, noting that one of the No-
Reponse bidders, Mecfor Inc. (Mecfor), stated that it could not meet
the request bid due date but that it was not clear if Mecfor could meet
FTA's Buy America requirements since it is a Canadian Firm. FTA asked
MNR to contact Mecfor to confirm whether it had the CWP that would meet
FTA's Buy America requirements. On August 25, 2015, MNR provided FTA
Mecfor's response. Mecfor stated that more than 60% of the main
componeents would be American made and that assembly of the CWP would
be sub-contracted in the USA; however, Mecfor also declined for the
second time an invitiation to re-bid stating that the company's
workload was overbooked. Due to the fact that MNR did not receive a
responsive bid for a CWP produced in the U.S. nor could it identify any
potential bidders through research and outreach, MNR seeks a non-
availability waiver of the Buy America requirements for final assembly
pursuant to 49 U.S.C. 5323 (j)(2)(B).
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).
MNR is requesting a Buy America non-availability waiver for the
requirement that final assembly occur in the United States in order to
procure a CWP for its shoreline stabilization/restoration and for
removing debris from the right-of-way after storms.
The purpose of this notice is to publish MNR's request and seek
public comment from all interested parties in accordance with 49 U.S.C.
5323(j)(3)(A). Comments will help FTA understand completely the facts
surrounding the request, including the merits of the request. A full
copy of the request has been placed in docket number FTA-2016-0006.
Issued on March 16, 2016.
Dana Nifosi,
Deputy Chief Counsel.
[FR Doc. 2016-06417 Filed 3-21-16; 8:45 am]
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