81 FR 76999 - Notice of Proposed Buy America Public Interest Waiver for Hurricane Sandy Emergency Relief Work Performed for the World Trade Center

DEPARTMENT OF TRANSPORTATION
Federal Transit Administration

Federal Register Volume 81, Issue 214 (November 4, 2016)

The Federal Transit Administration (FTA) received a request from the Port Authority of New York and New Jersey (PANYNJ) for a Buy America public interest waiver for the procurement of equipment to replace what was damaged at the World Trade Center Transportation Hub (WTC Hub) project during Hurricane Sandy. PANYNJ seeks a public interest Buy America waiver for the replacement of equipment previously purchased for the WTC Hub. Hurricane Sandy damaged an existing construction site that receives federal funds but is not subject to FTA's Buy America requirements and the only option PANYNJ had to implement Sandy recovery work was to replace the damaged equipment with the same equipment previously acquired for the project. 49 U.S.C. 5323(j)(2)(A) and 49 CFR 661.7(b). In accordance with 49 U.S.C. 5323(j)(3)(A), FTA is providing notice of the public interest waiver request and seeks public comment before deciding whether to grant the request. If granted, the waiver would only apply to replacement of equipment damaged by Hurricane Sandy at the WTC Hub project and would not apply to any other PANYNJ resiliency projects for which FTA has provided funding.

[Federal Register Volume 81, Number 214 (Friday, November 4, 2016)]
[Notices]
[Pages 76999-77000]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-26656]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2016-0035]


Notice of Proposed Buy America Public Interest Waiver for 
Hurricane Sandy Emergency Relief Work Performed for the World Trade 
Center

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 Port Authority of New York and New Jersey (PANYNJ) for a Buy 
America public interest waiver for the procurement of equipment to 
replace what was damaged at the World Trade Center Transportation Hub 
(WTC Hub) project during Hurricane Sandy. PANYNJ seeks a public 
interest Buy America waiver for the replacement of equipment previously 
purchased for the WTC Hub. Hurricane Sandy damaged an existing 
construction site that receives federal funds but is not subject to 
FTA's Buy America requirements and the only option PANYNJ had to 
implement Sandy recovery work was to replace the damaged equipment with 
the same equipment previously acquired for the project. 49 U.S.C. 
5323(j)(2)(A) and 49 CFR 661.7(b). In accordance with 49 U.S.C. 
5323(j)(3)(A), FTA is providing notice of the public interest waiver 
request and seeks public comment before deciding whether to grant the 
request. If granted, the waiver would only apply to replacement of 
equipment damaged by Hurricane Sandy at the WTC Hub project and would 
not apply to any other PANYNJ resiliency projects for which FTA has 
provided funding.

DATES: Comments must be received by November 14, 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-2016-0035.
    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, 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-2016-0035. 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: Cecelia Comito, FTA Assistant Chief 
Counsel, (202) 366-2217 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 public 
interest waiver to the Port Authority of New York and New Jersey 
(PANYNJ) for the procurement of replacement equipment damaged by 
Hurricane Sandy at the World Trade Center Transportation Hub (WTC Hub) 
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). If, however, FTA finds that the application of this 
requirement would be inconsistent with the public interest, it may 
waive this requirement. 49 U.S.C. 5323(j)(2)(A). In determining whether 
the conditions exist to grant a public interest waiver, FTA will 
consider all appropriate factors on a case-by-case basis, unless a 
general exception is specifically set out in this part. 49 U.S.C. 
5323(j)(2)(A); 49 CFR 661.7(b).
    On May 13, 2015, PANYNJ requested a Buy America waiver for the 
replacement or repair of equipment damaged by Hurricane Sandy at the 
WTC Hub because the WTC Hub project is being constructed pursuant to a 
grant awarded in 2003, it is not feasible to replace the damaged 
equipment with equipment that is different than that used in the 
original project and it is in the public's interest to repair the 
damage at the WTC Hub as quickly as possible. 49 U.S.C. 5323(j)(2)(A); 
49 CFR 661.7(b). Additionally, the underlying project is not subject to 
FTA's Buy America requirements.
    The September 11, 2001 terrorist attacks on the World Trade Center 
resulted in extensive damage to the WTC Hub. In August 2002, the 
Federal Emergency Management Agency (FEMA) entered into a memorandum of 
agreement with the U.S. Department of Transportation under which FEMA 
agreed to provide $2.75 billion to cover

[[Page 77000]]

expenses incurred in repairing or rebuilding public transportation 
facilities and systems damaged by the September 11, 2001 terrorist 
attacks. Under the agreement, FTA would serve as the lead agency to 
oversee the grant and the construction of the project. In December 
2003, FTA entered into a grant agreement with PANYNJ to rebuild the WTC 
Hub. Because the WTC Hub project was funded with FEMA grant funds, 
FTA's Buy America requirements did not apply to the project.
    In October 2012, the WTC Hub project was an active construction 
site, with an estimated project completion date of December 2015. 
Hurricane Sandy caused extensive damage to the construction site, 
resulting in more than $214 million in damage to the construction site. 
FTA awarded PANYNJ two grants--NY-44-X005 for $54.24 million and NY-44-
X014 for $159.72 million--in Hurricane Sandy recovery funds to be used 
for recovery and emergency repair work for the WTC Hub project. Because 
the repair work was for an ongoing construction project, PANYNJ was 
required to use existing contracts that were originally procured in 
accordance with the requirements for the FEMA-funded WTC Hub project. 
To apply FTA's Buy America requirements to replace or repair equipment 
installed on an ongoing construction project would result in 
significant delay to completion of the project, impact contracts 
awarded under the FEMA funds, and potentially impact previously 
provided warranties. Moreover, if granted, the public interest waiver 
would maintain overall consistency of administration, oversight and 
implementation of both the ongoing WTC Hub project and the WTC 
Hurricane Sandy recovery work.
    Accordingly, because the original project was funded by FEMA and 
therefore, not subject to FTA's Buy America regulations, FTA proposes a 
general public interest waiver of FTA's Buy America requirements for 
the two grants, NY-44-X005 for $54.24 million and NY-44-X014 for 
$159.72 million--awarded to PANYNJ. This public interest waiver is 
limited to the Hurricane Sandy recovery projects at the WTC Hub only, 
and does not apply to separately funded resiliency projects. FTA seeks 
comment from all interested parties on the above public interest 
waiver. After consideration of the comments, FTA will publish a second 
notice in the Federal Register with a response to comments and noting 
any changes made to the public interest waiver as a result of the 
comments received.

Ellen Partridge,
Chief Counsel.
[FR Doc. 2016-26656 Filed 11-3-16; 8:45 am]
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