[Federal Register Volume 79, Number 196 (Thursday, October 9, 2014)]
[Notices]
[Page 61129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24053]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2014-0021]


Notice of Buy America Waiver for a Variable Refrigerant Flow HVAC 
System

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of Buy America waiver.

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SUMMARY: In response to the San Bernardino Associated Governments' 
(SANBAG) request for a Buy America waiver for a Variable Refrigerant 
Flow (VRF) HVAC system, the Federal Transit Administration (FTA) hereby 
waives its Buy America requirements for the VRF HVAC system to be 
installed at the Omnitrans San Bernardino Transit Center (SBTC). This 
waiver is limited to a single procurement for the VRF HVAC system for 
the SBTC, an FTA-funded project.

DATES: This waiver is effective immediately.

FOR FURTHER INFORMATION CONTACT: Richard L. Wong, FTA Attorney-Advisor, 
at (202) 366-4011 or <a href="/cdn-cgi/l/email-protection#82f0ebe1eae3f0e6acf5edece5c2e6edf6ace5edf4"><span class="__cf_email__" data-cfemail="addfc4cec5ccdfc983dac2c3caedc9c2d983cac2db">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The purpose of this notice is to announce 
that FTA has granted a Buy America non-availability waiver for SANBAG's 
procurement of a VRF HVAC system for the SBTC.
    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) all of the manufacturing processes for the product take 
place in the United States; and (2) all of 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 non-availability waiver. 
49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
    SANBAG requested a non-availability waiver for a VRF HVAC system 
that will be installed into the SBTC, a multimodal transfer facility in 
downtown San Bernardino, California that will serve patrons and 
operators of Omnitrans' fixed route buses, the newly opened sbX bus 
rapid transit (BRT) line, the Victor Valley Transit Authority, the 
Mountain Area Regional Transit Authority, and the Southern California 
Regional Rail Authority (Metrolink).
    FTA selected the SBTC project for award of fiscal year 2011 funding 
made available pursuant to the Bus and Bus Facilities Program (49 
U.S.C. 5309(b)) in support of the U.S. Department of Transportation's 
(DOT) Livability Initiative and the Partnership for Sustainable 
Communities between the U.S. DOT, the U.S. Department of Housing and 
Urban Development, and the U.S. Environmental Protection Agency (Bus 
Livability Program). FTA selected each project for the Bus Livability 
Program based on whether it would, among other things, promote a more 
environmentally sustainable transportation system. 76 FR 37393, 37397 
(June 27, 2011); see also 76 FR 68813 (Nov. 7, 2011). More 
specifically, FTA assessed the project's ability to ``maintain, protect 
or enhance the environment, as evidenced by environmentally friendly 
policies and practices utilized in the project design, construction, 
and operation that exceed the requirements of the National 
Environmental Policy Act including items such as whether the project 
uses a [U.S. Green Building Council] Leadership in Energy and 
Environmental Design (LEED)-certified design. . . .'' 76 FR at 37397.
    The SBTC is being built to the U.S. Green Building Council's 
Leadership in Energy and Environmental Design (LEED) standards and will 
incorporate a number of sustainable and energy efficient elements. One 
of those elements is a VRF HVAC system that, among other things, is 
space saving, has invertor technology, efficiency, and a non-ozone 
depleting refrigerant that domestic manufacturers of HVAC systems do 
not provide. According to SANBAG, its contractor was directed to 
evaluate the substitution of a Buy America-compliant Variable Air 
Volume (VAV) system, but the contractor advised SANBAG that the VAV 
system would endanger the project's LEED Gold certification because of 
the difference in efficiency between the VAV and VRF HVAC systems. In 
addition, the substitution of a VAV system would require significant 
changes to the project, such as the alteration of already-erected 
structural elements that were designed to accommodate a VRF system and 
additional design changes and plan reviews by the City of San 
Bernardino.
    SANBAG points to a recent non-availability waiver FTA issued to St. 
Louis' MetroLink for a similar VRF system (79 FR 34653, June 17, 2014), 
as well as to a blanket non-availability waiver issued by the U.S. 
Department of Energy (DOE) in 2010 for VRF HVAC systems procured with 
American Reinvestment and Recovery Act funding (75 FR 35447, June 22, 
2010). According to SANBAG, the U.S. DOE's determination of non-
availability and FTA's recent St. Louis MetroLink waiver, as well as 
SANBAG's contractor's research, indicate that this product is not 
manufactured domestically.
    On Monday, September 22, 2014, and in accordance with 49 U.S.C. 
5323(j)(3)(A), FTA published a notice in the Federal Register 
requesting public comment on, among other topics, the merits of 
SANBAG's waiver request and potential effects of granting the waiver. 
The public comment period closed on September 29, 2014. FTA did not 
receive any comments.
    Based on SANBAG's assertions that it is unable to procure a U.S.-
manufactured VRF HVAC system, which is critical to obtaining LEED Gold 
certification, and the fact that FTA did not receive any public 
comments, FTA hereby waives its Buy America requirement for 
manufactured products under 49 CFR 661.5(d) for the VRF HVAC system. 
This waiver is limited to a single procurement for the VRF HVAC system 
for SANBAG's SBTC project.

Dana Nifosi,
Acting Chief Counsel.
[FR Doc. 2014-24053 Filed 10-8-14; 8:45 am]
BILLING CODE 4910-57-P


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