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)

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.

[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]


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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.

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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. 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]
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