[Federal Register Volume 79, Number 175 (Wednesday, September 10, 2014)]
[Notices]
[Pages 53834-53835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21547]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2014-0019]


Notice of Proposed Buy America Waiver for the Pad and Rubber Boot 
of a Concrete Block Used in New York City Transit South Ferry Station's 
Low Vibration Track System

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of Buy America waiver.

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SUMMARY: The Federal Transit Administration (FTA) is waiving its Buy 
America requirements for the procurement by New York City Transit 
(NYCT), an agency of the Metropolitan Transportation Authority (MTA), 
of pads and rubber boots of a concrete block used in its Low Vibration 
Track (LVT) system on the basis of non-availability. The procurement 
for the pads and rubber boots are part of the South Ferry Station 
Project. This waiver is limited to this one procurement for the South 
Ferry Station Project, and conditioned upon the requirement that NYCT 
must complete the safety testing of U.S.-manufactured pads and rubber 
boots necessary to meets its specifications within the timeframe 
provided herein and substitute U.S.-manufactured pads and rubber boots 
for the foreign-made pads and rubber boots to the extent possible.

FOR FURTHER INFORMATION CONTACT: Richard Wong, Attorney-Advisor, at 
(202) 366-0675 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to announce 
that FTA is granting a non-availability waiver for the procurement of 
the pad and rubber boot of the concrete block used in NYCT's LVT system 
for the South Ferry Station 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 March 21, 2014, FTA granted a waiver for the pad and the rubber 
boot to MTA Capital Construction Company, a construction management 
company for MTA expansion projects that is responsible for managing 
NYCT's Second Avenue Subway (SAS) Project. This waiver was limited to 
Phase 1 of the SAS Project and in granting the waiver FTA expressed its 
expectation that MTA would continue its good faith efforts to seek U.S. 
manufacturers of the pad and rubber boot. On April 29, 2014, FTA 
followed up with a letter and reiterated its expectations that MTA 
continue to seek U.S.-manufactured pads and rubber boots and provided 
its findings on potential U.S. manufacturers.\1\
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    \1\ FTA leveraged the resources of the U.S. Department of 
Commerce, National Institute of Standards and Technology (NIST), 
through an interagency agreement currently in place, and had NIST 
conduct a supplier scouting resulting in a report completed by NIST 
of potential U.S.-manufacturers for the pad and rubber boot.

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[[Page 53835]]

    On July 14, 2014, NYCT requested another Buy America waiver for the 
pads and rubber boots to be procured for its South Ferry Station 
Project. Both NYCT and Construction Polymers Technologies, Inc. (CPT), 
the manufacturer of the concrete block for which the pad and rubber 
boots are components, have been conducting their own searches to find a 
U.S.-manufactured pad and rubber boot. On August 20, 2014, FTA 
confirmed that the U.S.-manufacturing processes of the pad and rubber 
boot that CPT had found meet the requirements of Buy America. However, 
NYCT asserts that safety testing of U.S.-manufactured pads and boots 
must be conducted before they can be used in NYCT's LVT system. NYCT 
represents that all of the necessary testing that it must undertake 
with respect to new and untested items such as the pad and the boot 
will take approximately three months after CPT conducts its own testing 
and provides its results to NYCT. FTA has been informed that CPT 
expects to produce its test results to NYCT on or about September 15, 
2014.
    Because of the timing of its contract award, which NYCT anticipates 
will occur by September 30, 2014, as well as the construction schedule, 
NYCT requested a waiver. If the waiver is not granted, NYCT asserts 
that there would be no Buy America compliant items that also meet its 
safety specifications, which cannot be waived.
    On August 20, 2014, FTA published a Federal Register notice 
requesting comment on NYCT's waiver request. 79 FR 49371. No comments 
were received to the docket.
    Notwithstanding FTA's determination that the U.S.-made pad and 
rubber boot that CPT has found meets the Buy America requirements for 
manufactured components, because testing for the new pads and rubber 
boots must be performed that would cause delays to the South Ferry 
Station Project, FTA is hereby granting a non-availability waiver for 
the pad and rubber boot. The waiver is limited to a single procurement 
for the South Ferry Station Project and conditioned upon NYCT 
completing its testing of the U.S.-made pad and rubber boot within 
approximately three months of receipt of CPT's test results. NYCT must 
notify FTA's Regional Counsel for Region II in writing within five 
business days of receipt of CPT's test results, and within five 
business days of completion of its testing regarding the results of 
testing. Once all testing is completed and if the testing confirms that 
the U.S-made pads and rubber boots meet NYCT's safety specifications, 
FTA expects NYCT to substitute the U.S.-made pads and rubber boots for 
the foreign-made items to the extent possible.

Dana Nifosi,
Acting Chief Counsel.
[FR Doc. 2014-21547 Filed 9-9-14; 8:45 am]
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