[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Notices]
[Pages 28316-28317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12157]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Notice of Buy America Waiver Request by Oregon Department of 
Transportation for Steel Roof Tiles To Be Used in Union Station Roof 
Rehabilitation

AGENCY: Federal Railroad Administration (FRA), United States Department 
of Transportation (DOT).

ACTION: Notice of Buy America waiver request and request for comment.

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SUMMARY: The FRA is issuing this notice to advise the public that the 
Oregon Department of Transportation (``ODOT'') has requested a waiver 
from the Buy America requirements of the Passenger Rail Investment and 
Improvement Act of 2008 (``PRIIA'') (49 U.S.C. 24405(a)) for the 
purchase of metal roof tiles made of 40/45 KSI 2, 24 Gauge 
(0.0276'') Galvanized ``Non-Fluting'' Steel Stock with Kynar PPG 
5LR82411 or L/G Rodda Red II Paint finish color. ODOT is seeking a 
waiver in order to complete the rehabilitation of the historic Union 
Station roof in Portland, Oregon as one component of a project funded 
by FRA under the American Recovery and Reinvestment Act of 2009 
(``Recovery Act''). The purpose of this notice is to seek public 
comment on whether the FRA should grant a waiver to its Buy America 
requirements in 49 U.S.C. 24405(a).

DATES: Written Comments: Written comments must be received by June 3, 
2010.

ADDRESSES: You may submit comments identified by the docket number FRA-
2010-0085 by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (``RIN'') 
for this rulemaking. Note that all comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act section of this 
document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    For Further Information Contact: For questions about this notice, 
please contact Mr. Chris Van Nostrand, Attorney-Advisor, FRA Office of 
Chief Counsel, (202) 493-6058 or via e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 
    The Recovery Act requires the FRA to apply the Buy America 
provisions contained in PRIIA, at 49 U.S.C. 24405(a), to grants 
obligated with Recovery Act funds. PRIIA section 24405(a)(1) authorizes 
the Secretary of Transportation (``Secretary'') to obligate grant funds 
only if the steel, iron, and manufactured goods used in the project are 
produced in the United States. However, PRIIA section 24405(a)(2) also 
permits the Secretary to waive the Buy America requirements if he finds 
that; (A) applying paragraph (1) would be inconsistent with the public 
interest; (B) the steel, iron, and goods manufactured in the United 
States are not produced in sufficient and reasonably available amount 
or are not of a satisfactory quality; (C) rolling stock or power train 
equipment cannot be bought or delivered to the United States within a 
reasonable time; or (D) including domestic material will increase the 
cost of the overall project by more than 25 percent.
    If the Secretary determines that it is necessary to waive the Buy 
American provisions, PRIIA section 24405(a)(4) requires that the 
Secretary provide public notice of such a finding and

[[Page 28317]]

provide an opportunity for comment. In addition, PRIIA requires a 
detailed written justification for the decision be published in the 
Federal Register. This notice informs the public that ODOT has 
requested a Buy America waiver for the roofing tiles and requests 
public comment on the potential waiver. ODOT has requested the waiver 
pursuant to 49 U.S.C. 24405(a)(2)(B) because it believes that for the 
reasons set forth in this notice below the manufactured goods, the 
metal roofing tiles, are not reasonably available in the United States 
and that therefore a waiver is warranted.
    In its Buy America waiver request to the FRA, ODOT distinguishes 
between ``field'' tiles which are used for the majority of the roof 
rehabilitation and ``specialty'' tiles which are used for the ridge, 
hip and valley area of the roof. ODOT states that after researching 
potential manufacturers of the roof tiles it found only two companies 
in North America capable of manufacturing the tiles necessary to 
complete this project. Furthermore, the one American firm ODOT 
identified, W.F. Norman, stated it might be a good source for the 
specialty tiles but turned down the request to manufacture the field 
tiles. The other firm capable and willing to produce the field tiles is 
Heather & Little Limited located in Ontario, Canada. ODOT has also 
explored the possibility of custom fabricating the tiles. However, ODOT 
found that custom fabrication would cost upwards of $1.5 million 
whereas the cost of purchasing the manufactured tiles would be 
approximately $1 million.
    While this $500,000 price disparity does not trigger the PRIIA 
section 24405(a)(2)(D) waiver for instances where procuring domestic 
material would increase the cost of the overall project by more than 25 
percent, it does represent a substantial increase in project cost. In 
addition, custom fabrication does not equate to ``reasonably 
available'' manufactured goods as ODOT would have to specially 
fabricate field tiles that are otherwise available through mass 
production albeit from a foreign source. Thus, since ODOT could not 
find a reasonable domestic source and the only other option is 
procuring the field tiles from a foreign manufacturer, it requests that 
the Secretary grant a Buy America waiver based on non-availability.
    In addition to FRA's grant, the Federal Highway Administration 
(``FHWA'') is also providing funding for the Union Station 
rehabilitation with a portion of its Recovery Act funds. Pursuant to 
FHWA's Buy America policy contained in 23 CFR. 635.410 and Division K, 
section 130 of the Consolidated Appropriations Act of 2008 (Pub. L. 
110-161), FHWA published a notice of intent to issue a waiver on its 
Web site for the roof tiles (available at http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=39). FHWA posted its request for 
comments on its Web site on October 22, 2009 and sought public comment 
for a period of fifteen days while it considered the waiver request. 
After determining the Buy America waiver was appropriate, FHWA 
published a Notice of Finding in the Federal Register on December 4, 
2009 and invited comment for an additional fifteen days (74 FR 63316, 
Dec. 4, 2009). According to its Notice, FHWA did not receive any 
substantive comments that led it to believe that the roof tiles made of 
40/45 KSI 2, 24 Gauge (0.0276'') Galvanized ``Non-Fluting'' 
Steel Stock with Kynar PPG 5LR82411 or L/G Rodda Red II Paint Finish 
Color are available from a domestic source. Furthermore, FHWA conducted 
its own nationwide review to locate potential domestic manufacturers 
for the roof tiles but did not uncover any additional domestic sources 
of the field tiles. After considering ODOT's waiver request and its own 
internal review of potential tile manufacturers, FHWA concluded that 
``[b]ased on all of the information available to the agency, the FHWA 
concludes that there are no domestic manufacturers of the roof tiles'' 
and that the Buy America waiver was appropriate based on non-
availability.
    With this information in mind and in order to completely understand 
the facts surrounding ODOT's request, FRA seeks comment from all 
interested parties regarding the availability of domestically 
manufactured field tiles of the materials described above and the 
potential Buy America waiver.

    Issued in Washington, DC on May 17, 2010.
Paul Nissenbaum,
Director, Office of Passenger and Freight Programs.
[FR Doc. 2010-12157 Filed 5-19-10; 8:45 am]
BILLING CODE 4910-06-P