[Federal Register Volume 78, Number 242 (Tuesday, December 17, 2013)]
[Notices]
[Pages 76402-76403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30000]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2013-0038]


Notice of Proposed Buy America Waiver for the Pad and Rubber Boot 
of a Concrete Block for a Low Vibration Track System

AGENCY: Federal Transit Administration, DOT.

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

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SUMMARY: The New York Metropolitan Transportation Authority (MTA), New 
York City Transit (NYCT), MTA Capital Construction Company, has 
requested a Buy America waiver for the pad and rubber boot of a 
concrete block for its Low Vibration Track (LVT) system on the basis of 
non-availability. MTA intends to install an LVT system as part of its 
Second Avenue Subway Project. This notice is to inform the public of 
the waiver request and to seek public comment to inform FTA's decision 
whether to grant the request.

DATES: Comments must be received by January 16, 2014. 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-2013-0038:
    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-2013-0038. 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: Mary J. Lee, FTA Attorney-Advisor, at 
(202) 366-0985 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to provide 
notice and seek comment on whether the Federal Transit Administration 
(FTA) should grant a non-availability waiver for the procurement of the 
pad and rubber boot of the concrete block used in its LVT system for 
Phase 1 of the Second Avenue Subway 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). A manufactured product is considered produced in the United 
States if: (1) the manufacturing processes for the product take place 
in the United States; and (2) 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).
    On June 20, 2013, FTA issued a letter to MTA regarding FTA's 
determination that the concrete blocks purchased for MTA's LVT system 
were not Buy America compliant because they contained foreign 
manufactured components--the pad and the rubber boot of each concrete 
block. However, FTA indicated that it would be willing to entertain a 
non-availability waiver if MTA met the required conditions under 49 CFR 
661.7(c) and provided the following information: (1) the history of the 
procurement, including the technical specifications for the concrete 
blocks; (2) the technical feasibility of using other replacement parts 
manufactured in the United States; and (3) MTA's market research 
demonstrating the extent to which manufacturers in the United States 
are capable and willing to produce the pad and the rubber boot.
    On September 11, 2013, MTA formally requested a Buy America waiver 
for the pad and rubber boot. In its request, MTA reiterated that it 
specified an LVT system to address operational noise and vibration 
issues, which had been identified as significant adverse impacts in the 
Final Environmental Impact Statement and Record of Decision for the 
Second Avenue Subway Project. The LVT system is, among other things, 
also designed to meet the National Fire Protection Association 
requirements and the vertical and horizontal gap tolerances between the 
platform and the train floor required to comply with the Americans with 
Disabilities Act. In addition, according to MTA, the LVT system has a 
proven performance history and an expected useful life in excess of 60 
years, and would meet the performance requirements of MTA-NYCT's 
standard specifications. Along with these reasons, MTA stated that it 
had, in good faith, concluded that the concrete blocks were components 
of the LVT system and believed itself to be Buy America compliant.
    According to MTA, it is unable to find a U.S.-manufactured pad and 
rubber boot. However, upon learning that it likely would have to find a 
U.S.-manufactured pad and rubber boot, MTA began conducting market 
research

[[Page 76403]]

to encourage U.S. manufacturing of the pads and rubber boots. MTA has 
learned that there may be a U.S. manufacturer in the near future, but 
any other concrete blocks used in its LVT system would need to undergo 
testing according to MTA-NYCT's Specification 92 for Low-Profile Low 
Vibration Booted Blocks. MTA states that this testing would delay the 
Project for over one year. Therefore, MTA requests a waiver that would 
be limited to Phase 1 of its Second Avenue Subway Project and 
understands that it would need to continue its good faith efforts to 
find a U.S.-manufactured pad and rubber boot.
    The purpose of this notice is to publish the 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 effects of a potential waiver 
and the merits of the request. FTA also is working with the U.S. 
Department of Commerce, National Institute of Standards and Technology 
(NIST), to seek U.S. manufacturers for these components and expects MTA 
and others to cooperate in this endeavor. A full copy of the request 
has been placed in docket number FTA-2013-0038.

    Dated: December 11, 2013.
Dorval R. Carter, Jr.,
Chief Counsel.
[FR Doc. 2013-30000 Filed 12-16-13; 8:45 am]
BILLING CODE 4910-57-P