81 FR 15407 - Notice of Proposed Buy America Waiver for Steel Excavator With a Continuous Wield Platform

DEPARTMENT OF TRANSPORTATION
Federal Transit Administration

Federal Register Volume 81, Issue 55 (March 22, 2016)

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.

[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)]
[Notices]
[Pages 15407-15408]
From the Federal Register Online  [www.thefederalregister.org]
[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]
BILLING CODE 4910-57-P