2010-12157. 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.

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: [phone];
• 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, [phone] or via e-mail at [e-mail].

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 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.