81 FR 89572 - Notice of 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 238 (December 12, 2016)
Federal Transit Administration
Federal Register Volume 81, Issue 238 (December 12, 2016)
| Page Range | 89572-89573 | |
| FR Document | 2016-29686 |
[Federal Register Volume 81, Number 238 (Monday, December 12, 2016)] [Notices] [Pages 89572-89573] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-29686] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Transit Administration [Docket No. FTA-2016-0035] Notice of Buy America Public Interest Waiver for Hurricane Sandy Emergency Relief Work Performed for the World Trade Center AGENCY: Federal Transit Administration, DOT. ACTION: Notice Buy America waiver. ----------------------------------------------------------------------- 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. A public interest waiver is needed because 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. 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 provided notice of the public interest waiver request and sought comment on whether to grant the request. FTA received one comment in support of the waiver, and no comments objecting to the waiver. Therefore, FTA is issuing a general public interest waiver for two PANYNJ Hurricane Sandy grants, NY-44-X005 and NY-44-X014. 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. DATES: This waiver is effective immediately. 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 announce that FTA is granting 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 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 [[Page 89573]] 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, a 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. On November 4, 2016, and in accordance with 49 U.S.C. 5323(j)(3)(A), FTA published a notice in the Federal Register announcing PANYNJ's Buy America waiver request (81 FR 76999) seeking public comment. The comment period closed on November 14, 2016, and FTA received one comment. The comment was provided by a private citizen who supports granting the waiver. The commenter noted that the WTC Hub is a critical connection for Lower Manhattan employers and New Jersey employees. The commenter also noted while projects that abide to the Buy America requirements promote domestic industry and the livelihoods or hard-working Americans, that occurrences like Hurricane Sandy demonstrate the need for flexibility to waive Buy America under certain circumstances. Accordingly, because the original project was funded by FEMA and therefore, not subject to FTA's Buy America regulations, and the lack of any comments opposing the waiver, FTA is granting 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. Ellen Partridge, Chief Counsel. [FR Doc. 2016-29686 Filed 12-9-16; 8:45 am] BILLING CODE P
![89572 Federal Register / Vol. 81, No. 238 / Monday, December 12, 2016 / Notices
steel, iron, and goods produced in the comment from all interested parties, This waiver is effective
DATES:
United States are not produced in a including potential vendors and immediately.
sufficient and reasonably available suppliers. The comment period closed FOR FURTHER INFORMATION CONTACT:
amount or are not of a satisfactory on November 15, 2016, and no Cecelia Comito, FTA Assistant Chief
quality,’’ then FTA may issue a non- comments were received. Counsel, (202)366–2217 or
availability waiver. 49 U.S.C. Therefore, based on the information Cecelia.comito@dot.gov.
5323(j)(2)(B); 49 CFR 661.7(c). ‘‘It will supplied in support of GDRTA’s request SUPPLEMENTARY INFORMATION: The
be presumed that the conditions exist to for a Buy America waiver for the radio purpose of this notice is to announce
grant this non-availability waiver if no consoles, FTA hereby waives its Buy that FTA is granting a public interest
responsive and responsible bid is America requirements for the radio waiver to the Port Authority of New
received offering an item produced in consoles on the grounds that the York and New Jersey (PANYNJ) for the
the United States.’’ 49 CFR 661.7(c)(1). manufactured product is not available
In January 2014, GDRTA conducted a procurement of replacement equipment
in the U.S. This waiver is limited to a damaged by Hurricane Sandy at the
technology scope development project single procurement for the radio
to determine how technology World Trade Center Transportation Hub
consoles by GDRTA. (WTC Hub) project.
enhancements could improve its
operational efficiency; this included a Ellen Partridge, With certain exceptions, FTA’s Buy
voice and data communication Chief Counsel. America requirements prevent FTA
alternatives analysis. GDRTA [FR Doc. 2016–29685 Filed 12–9–16; 8:45 am] from obligating an amount that may be
comprehensively examined various BILLING CODE 4910–57–P
appropriated to carry out its program for
technologies available for its voice and a project unless ‘‘the steel, iron, and
data communication needs. GDRTA manufactured goods used in the project
compared and evaluated the differences DEPARTMENT OF TRANSPORTATION are produced in the United States.’’ 49
between radio and cellular-based U.S.C. 5323(j)(1). If, however, FTA finds
communication, including a cost Federal Transit Administration that the application of this requirement
analysis, reliability assessment, and would be inconsistent with the public
[Docket No. FTA–2016–0035]
long-range maintenance and operational interest, it may waive this requirement.
differences. On August 5, 2014, the Notice of Buy America Public Interest 49 U.S.C. 5323 (j)(2)(A). In determining
GDRTA Board approved the adopted of Waiver for Hurricane Sandy whether the conditions exist to grant a
a mixed communication system for the Emergency Relief Work Performed for public interest waiver, FTA will
agency, which would employ both voice the World Trade Center consider all appropriate factors on a
and cellular data systems. GDRTA case-by-case basis, unless a general
would join Montgomery County’s 800 AGENCY: Federal Transit Administration, exception is specifically set out in this
MHz analog trunked system, instead of DOT. part. 49 U.S.C. 5323(j)(2)(A); 49 CFR
continuing to own a 450 MHz radio ACTION: Notice Buy America waiver. 661.7(b).
system. On May 13, 2015, PANYNJ requested
Montgomery County’s analog system SUMMARY: The Federal Transit a Buy America waiver for the
uses proprietary Motorola Administration (FTA) received a request replacement or repair of equipment
SmartNetTrunking, and all equipment from the Port Authority of New York damaged by Hurricane Sandy at the
must be original equipment and New Jersey (PANYNJ) for a Buy WTC Hub because the WTC Hub project
manufacturer (OEM) Motorola devices. America public interest waiver for the is being constructed pursuant to a grant
All equipment also must be procurement of equipment to replace awarded in 2003, it is not feasible to
programmed to use the County’s 800 what was damaged at the World Trade replace the damaged equipment with
MHz analog system and have the ability Center Transportation Hub (WTC Hub) equipment that is different than that
to work on the MARCS 800 MHz digital project during Hurricane Sandy. A used in the original project and it is in
system without any additional public interest waiver is needed because the public’s interest to repair the
hardware. In November 2014, GDRTA Hurricane Sandy damaged an existing damage at the WTC Hub as quickly as
purchased Motorola mobile and construction site that receives federal possible. 49 U.S.C. 5323(j)(2)(A); 49 CFR
portable radios for its supervisors and funds but is not subject to FTA’s Buy 661.7(b). Additionally, the underlying
its diesel, trolly, paratransit, America requirements and the only project is not subject to FTA’s Buy
maintenance, and support vehicles. The option PANYNJ had to implement America requirements.
procurement and installation of the Sandy recovery work was to replace the The September 11, 2001 terrorist
radio consoles is the final step to move damaged equipment with the same attacks on the World Trade Center
GDRTA’s communication system to equipment. 49 U.S.C. 5323(j)(2)(A) and resulted in extensive damage to the
Montgomery County’s system. 49 CFR 661.7(b). In accordance with 49 WTC Hub. In August 2002, the Federal
Motorola manufactures equipment U.S.C. 5323(j)(3)(A), FTA provided Emergency Management Agency
both domestically and overseas. While notice of the public interest waiver (FEMA) entered into a memorandum of
the voice processing module portion of request and sought comment on agreement with the U.S. Department of
the radio consoles currently are whether to grant the request. FTA Transportation under which FEMA
manufactured in Illinois, the other received one comment in support of the agreed to provide $2.75 billion to cover
components are manufactured in waiver, and no comments objecting to expenses incurred in repairing or
Mexico. Thus, GDRTA submitted a the waiver. Therefore, FTA is issuing a rebuilding public transportation
mstockstill on DSK3G9T082PROD with NOTICES
waiver request based on non-availability general public interest waiver for two facilities and systems damaged by the
under 49 CFR 661.7(c)(1). PANYNJ Hurricane Sandy grants, NY– September 11, 2001 terrorist attacks.
On Tuesday November 1, 2016, and in 44–X005 and NY–44–X014. This public Under the agreement, FTA would serve
accordance with 49 U.S.C. 5323(j)(3)(A), interest waiver is limited to the as the lead agency to oversee the grant
FTA published a notice in the Federal Hurricane Sandy recovery projects at and the construction of the project. In
Register announcing the Buy America the WTC Hub only and does not apply December 2003, FTA entered into a
waiver request (81 FR 211) seeking to separately funded resiliency projects. grant agreement with PANYNJ to
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![Federal Register / Vol. 81, No. 238 / Monday, December 12, 2016 / Notices 89573
rebuild the WTC Hub. Because the WTC million—awarded to PANYNJ. This take place in the United States; and (2)
Hub project was funded with FEMA public interest waiver is limited to the all of the components of the product are
grant funds, FTA’s Buy America Hurricane Sandy recovery projects at of U.S. origin. A component is
requirements did not apply to the the WTC Hub only, and does not apply considered of U.S. origin if it is
project. to separately funded resiliency projects. manufactured in the United States,
In October 2012, the WTC Hub project regardless of the origin of its
Ellen Partridge,
was an active construction site, with an subcomponents. 49 CFR 661.5(d). If,
estimated project completion date of Chief Counsel.
however, FTA determines that ‘‘the
December 2015. Hurricane Sandy [FR Doc. 2016–29686 Filed 12–9–16; 8:45 am] steel, iron, and goods produced in the
caused extensive damage to the BILLING CODE P United States are not produced in a
construction site, resulting in more than sufficient and reasonably available
$214 million in damage to the amount or are not of a satisfactory
construction site. FTA awarded DEPARTMENT OF TRANSPORTATION quality,’’ then FTA may issue a non-
PANYNJ two grants—NY–44–X005 for availability waiver. 49 U.S.C.
Federal Transit Administration
$54.24 million and NY–44–X014 for 5323(j)(2)(B); 49 CFR 661.7(c). ‘‘It will
$159.72 million—in Hurricane Sandy [Docket No. FTA–2016–0037] be presumed that the conditions exist to
recovery funds to be used for recovery grant this non-availability waiver if no
and emergency repair work for the WTC Notice of Buy America Waiver for responsive and responsible bid is
Hub project. Because the repair work Ultrastraight Rail received offering an item produced in
was for an ongoing construction project, AGENCY: Federal Transit Administration, the United States.’’ 49 CFR 661.7(c)(1).
PANYNJ was required to use existing DOT. Sound Transit’s Northgate Link
contracts that were originally procured ACTION: Notice of Buy America waiver. extension is a $1.9 billion rail project
in accordance with the requirements for that consists of 4.3 miles and 3 new
the FEMA-funded WTC Hub project. To SUMMARY: The Federal Transit stations, and runs through residential
apply FTA’s Buy America requirements Administration (FTA) received a request and employment areas, including the
to replace or repair equipment installed from the Central Puget Sound Transit University of Washington.
on an ongoing construction project Authority (Sound Transit) for a Buy Approximately 15,100 feet of that
would result in significant delay to America non-availability waiver for the extension will run under the University
completion of the project, impact procurement of ultrastraight rail. Sound of Washington’s Health Sciences and
contracts awarded under the FEMA Transit seeks to procure approximately Physics-Astronomy buildings, which
funds, and potentially impact 15,100 feet ultrastraight rail for a house precision-measurement
previously provided warranties. portion of its Northgate Link light rail laboratories and experiments conducted
Moreover, a public interest waiver extension to avoid exceedance of by Nobel Prize winning faculty. The
would maintain overall consistency of contractually-mandated vibration project’s potential impact on the
administration, oversight and thresholds. The FTA hereby waives its University’s buildings was considered
implementation of both the ongoing Buy America requirements, finding that as part of the environmental review
WTC Hub project and the WTC the materials for which the waiver is process required by the National
Hurricane Sandy recovery work. requested are not produced in the Environmental Policy Act (NEPA). In
On November 4, 2016, and in United States in sufficient and 2006, FTA issued a final Record of
accordance with 49 U.S.C. 5323(j)(3)(A), reasonably available quantities and of Decision (ROD) for the project, and
FTA published a notice in the Federal satisfactory quality. This waiver is required implementation of mitigation
Register announcing PANYNJ’s Buy limited to a single procurement by measures, including a measure that
America waiver request (81 FR 76999) Sound Transit. would minimize vibration under the
seeking public comment. The comment DATES: The waiver is effective University buildings. Sound Transit
period closed on November 14, 2016, immediately. then executed a 2007 agreement with
and FTA received one comment. The the University of Washington in which
comment was provided by a private FOR FURTHER INFORMATION CONTACT: Sound Transit agreed to not exceed
citizen who supports granting the Cecelia Comito, Assistant Chief specified vibration thresholds, which
waiver. The commenter noted that the Counsel, at (202) 366–2217 or could be met through use of
WTC Hub is a critical connection for cecelia.comito@dot.gov. ultrastraight rail, with parameters for
Lower Manhattan employers and New SUPPLEMENTARY INFORMATION: The that ultrastraight rail based on American
Jersey employees. The commenter also purpose of this notice is to announce Railway Engineers Maintenance-of-Way
noted while projects that abide to the that FTA has granted a Buy America Association (‘‘AREMA’’) standards.
Buy America requirements promote non-availability waiver for Sound Sound Transit contacted domestic rail
domestic industry and the livelihoods Transit for the procurement of manufacturers regarding their ability to
or hard-working Americans, that approximately 15,100 feet of produce ultrastraight rail within the
occurrences like Hurricane Sandy ultrastraight rail pursuant to 49 U.S.C. agreed upon AREMA specifications for
demonstrate the need for flexibility to 5323(j)(2)(B) and 49 CFR 661.7(c). the rail. Two leading manufacturers,
waive Buy America under certain With certain exceptions, FTA’s Buy Steel Dynamics, Inc. (SDI) and EVRAZ
circumstances. America requirements prevent FTA North America (EVRAZ), stated
Accordingly, because the original from obligating an amount that may be unequivocally that they are unable to
project was funded by FEMA and appropriated to carry out its program for fabricate rail that meets the
mstockstill on DSK3G9T082PROD with NOTICES
therefore, not subject to FTA’s Buy a project unless ‘‘the steel, iron, and specification. Sound Transit
America regulations, and the lack of any manufactured goods used in the project subsequently explored using
comments opposing the waiver, FTA is are produced in the United States.’’ 49 domestically-sourced, milled rail.
granting a general public interest waiver U.S.C. 5323(j)(1). A manufactured However, testing of the as-installed
of FTA’s Buy America requirements for product is considered produced in the milled rail found that the rail failed to
the two grants, NY–44–X005 for $54.24 United States if: (1) All of the meet the applicable vibration
million and NY–44–X014 for $159.72 manufacturing processes for the product thresholds. Due to its unsuccessful
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Document Created: 2018-02-14 09:05:50
Document Modified: 2018-02-14 09:05:50
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice Buy America waiver. | |
| Dates | This waiver is effective immediately. | |
| Contact | Cecelia Comito, FTA Assistant Chief Counsel, (202)366-2217 or [email protected] | |
| FR Citation | 81 FR 89572 |
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