[Federal Register: November 24, 2008 (Volume 73, Number 227)]
[Proposed Rules]
[Page 70950-70952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no08-30]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 661
[Docket No. FTA-2008-0057]
RIN 2132-AA99
Buy America Requirements; Bi-Metallic Composite Conducting Rail
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: Following the two recent Buy America rulemakings pursuant to
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU), the Federal Transit Administration (FTA)
received a petition for reconsideration of the treatment of bi-metallic
composite conducting rail as a steel product that must be manufactured
in the United States.
At present, FTA's Buy America regulation treats both running rail
and contact rail as a steel or iron product which must be manufactured
entirely in the United States. During the recent rulemakings, several
commenters proposed that bi-metallic rail be instead categorized as
``traction power equipment.'' If adopted, the proposal would have
changed the regulatory treatment of contact rail based on the rail's
composition. As traction power equipment, bi-metallic rail would have
been subject to a lower 60 percent domestic content requirement, in
contrast to running rail made of steel and iron, which must contain 100
percent domestic content. In addition, as traction power equipment, bi-
metallic rail would be subject only to ``final assembly'' in the United
States, which may be a less rigorous process than the manufacturing
process required for other forms of power rail, including steel and
iron.
Because FTA believed adopting the proposal in the Final Rule would
have altered the regulatory environment for affected parties who may
have been unaware of the proposal, including manufacturers of steel and
iron contact rail, without subjecting the issue to full notice-and-
comment from all affected parties, FTA declined to adopt the proposal,
instead deferring action to this separate rulemaking.
Through this Notice of Proposed Rulemaking (NRPM), FTA proposes to
amend its Buy America regulations to re-categorize bi-metallic
composite conducting rail as ``traction power equipment'' which need
only consist of 60 percent domestic content, with final assembly taking
place in the United States.
DATES: Comments must be submitted on or before January 23, 2009. Late
filed comments will be considered to the extent practicable.
ADDRESSES: You may submit comments [identified by DOT DMS Docket Number
FTA-2008-0057] by any of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov and
follow the online instructions for submitting comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
See SUPPLEMENTARY INFORMATION section for more information on
submitting comments.
FOR FURTHER INFORMATION CONTACT: Richard Wong, Office of the Chief
Counsel, Federal Transit Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, (202) 366-4011 or Richard.Wong@dot.gov.
SUPPLEMENTARY INFORMATION:
Instructions for submitting comments: You must include the agency
name (Federal Transit Administration) and Docket number (FTA-2008-0057)
or the Regulatory Identification Number (RIN) for this rulemaking at
the beginning of your comments. You should submit two copies of your
comments if you submit them by mail. If you wish to receive
confirmation that FTA received your comments, you must include a self-
addressed stamped postcard. Note that all comments received will be
posted, without change, to http://www.regulations.gov including any
personal information provided and will be available to Internet users.
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477) or you may visit
http://DocketsInfo.dot.gov.
I. Background
On November 28, 2005, the Federal Transit Administration (FTA)
published a Notice of Proposed Rulemaking (NPRM) in the Federal
Register (70 FR 71246) that discussed several proposals mandated by the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005), and
proposed to provide further clarification of existing FTA decisions on
Buy America.
During the open comment period, several commenters recommended that
aluminum composite conducting rail, otherwise known as Bimetallic Power
Transmission (BPTS) equipment, which
[[Page 70951]]
is a combination of an aluminum conductor and a stainless steel
abrasion-resistant cap, be added to the list of traction power
equipment in 49 CFR 661.11(v) because of its power-delivery function as
part of the traction power system. However, FTA's current regulation at
49 CFR 661.11(w) states that ``[t]he power or third rail is not
considered traction power equipment and is thus subject to the
requirements of 49 U.S.C. 5323(j) and the requirements of 49 CFR
661.5.'' In other words, any rail used to provide power must be
produced in the United States, which includes all manufacturing
processes except for metallurgical processes involving refinement of
steel additives.
According to commenters supporting the proposal, BPTS is a ``new
power transmission product developed to address the needs of modern
traction power systems'' that offers a higher conductivity (2.5 times
greater) combined with a lighter weight (three times lighter) when
compared with steel. They stated that BPTS is part of an ``integrated
electrical transmission system or an integrated equipment configuration
rather than a third rail'' and that FTA needed to update its
regulations to reflect changes in new technology.
In its September 20, 2007 Final Rule (72 FR 53688), FTA stated that
it believed that the commenters' recommendations went beyond the scope
of the rulemaking. The NPRM narrowly asked whether specific items
should be added to the list of traction power equipment in section
661.11(v). The commenters' recommendation, if adopted, not only would
have amended section 661.11(v) to include an item not proposed in the
initial NPRM but also would have required a modification to the
regulatory classification of rail in section 661.5 of the existing
rule. Adopting these changes which were not proposed in the NPRM would
not have provided other parties, specifically, firms manufacturing
other types of power-conducting rail, to comment on the treatment of
BPTS. Therefore, in the interest of fairness, FTA declined to make such
a change in the 2007 Final Rule and instead is publishing this NPRM
seeking public comment whether BPTS should continue to be covered as a
manufactured product under section 661.5 or whether it should now be
treated as traction power equipment under section 661.11(v).
Currently, all power or third rails, regardless of whether made
primarily from aluminum, steel, iron, or some other material, are
excluded from the definition of ``traction power equipment'' and
instead are subject to 49 CFR 661.5 as a steel or iron product. If the
rail is made of any percentage of steel or iron, the product must
comply with 49 CFR 661.5(c); thus, it must be manufactured in the
United States. Under this NPRM, FTA is proposing to adopt the
petitioner's proposal that BPTS be treated as traction power equipment
which need only consist of 60 percent domestic content, with final
assembly taking place in the United States.
FTA seeks comments regarding this proposal--should BPTS be held to
a lighter ``final assembly'' standard rather than the ``manufacturing''
standard? Should FTA maintain domestic origin requirements for both the
steel and aluminum components of BPTS? How would the treatment of BPTS
as traction power equipment affect domestic manufacturers of steel or
iron conducting rail? Should all conducting rail be categorized as
traction power equipment, without regard to composition? FTA asks that
commenters offer any pertinent data or information in support of their
views as to whether it is appropriate that BPTS be treated as traction
power equipment rather than a manufactured rail product.
Regulatory Analyses and Notices
A. Statutory/Legal Authority
Executive Order 12866 and DOT Regulatory Policies and Procedures
This NPRM is a nonsignificant regulatory action under section 3(f)
of Executive Order 12866 and, therefore, was not reviewed by the Office
of Management and Budget. This NPRM is also nonsignificant under the
Regulatory Policies and Procedures of the Department of Transportation
(44 FR 11034, Feb. 26, 1979). This NPRM imposes no new compliance costs
on the regulated industry.
B. Executive Order 13132
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This NPRM
does not include any regulation that has substantial direct effects on
the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
C. Executive Order 13175
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this NPRM does
not have tribal implications and does not impose direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
D. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze regulations and proposals to assess their impact on
small businesses and other small entities to determine whether the rule
or proposal will have a significant economic impact on a substantial
number of small entities. This NPRM imposes no new costs. Therefore,
FTA certifies that this proposal does not require further analysis
under the Regulatory Flexibility Act. FTA requests public comment on
whether the proposals contained in this NPRM have a significant
economic impact on a substantial number of small entities.
E. Unfunded Mandates Reform Act of 1995
This NPRM does not propose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. If the proposals are adopted into a final
rule, it will not result in costs of $100 million or more (adjusted
annually for inflation), in the aggregate, to any of the following:
State, local, or Native American tribal governments, or the private
sector.
F. Paperwork Reduction Act
This NPRM proposes no new information collection requirements.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document may be used to cross-reference this action with the
Unified Agenda.
H. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), requires Federal agencies to consider the
consequences of major Federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human
environment. There are no significant environmental impacts associated
with this NPRM.
[[Page 70952]]
I. Privacy Act
Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://DocketsInfo.dot.gov.
List of Subjects in 49 CFR Part 661
Grant programs--transportation, Public transportation, Reporting
and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, 49 CFR part
661 of the Code of Federal Regulations is proposed to be amended as
follows:
PART 661--BUY AMERICA REQUIREMENTS
1. The authority citation for part 661 continues to read as
follows:
Authority: 49 U.S.C. 5323(j) (formerly sec. 165, Pub. L. 97-424;
as amended by sec.337, Pub. L. 100-17; sec.1048, Pub. L. 102-240;
sec. 3020(b), Pub. L. 105-178; and sec. 3023(i) and (k), Pub. L.
109-59); 49 CFR 1.51.
2. Revise Appendix A to Sec. 661.3 to read as follows:
Sec. 661.3 Definitions.
* * * * *
Appendix A to Sec. 661.3--End Products
The following is a list of representative end products that are
subject to the requirements of Buy America. This list is
representative, not exhaustive.
(1) Rolling stock end products: All individual items identified
as rolling stock in Sec. 661.3 (e.g., buses, vans, cars, railcars,
locomotives, trolley cars and buses, ferry boats, as well as
vehicles used for support services); train control, communication,
and traction power equipment that meets the definition of end
product at Sec. 661.3 (e.g., a communication or traction power
system, including manufactured bimetallic power rail).
(2) Steel and iron end products: Items made primarily of steel
or iron such as structures, bridges, and track work, including
running rail, contact rail, and turnouts.
(3) Manufactured end products: Infrastructure projects not made
primarily of steel or iron, including structures (terminals, depots,
garages, and bus shelters), ties and ballast; contact rail not made
primarily of steel or iron; fare collection equipment; computers;
information, security, and data processing equipment; mobile lifts,
hoists, and elevators.
3. Revise Sec. 661.5, paragraph (c), to read as follows:
Sec. 661.5 General requirements.
* * * * *
(c) The steel and iron requirements apply to all construction
materials made primarily of steel or iron and used in infrastructure
projects such as transit or maintenance facilities, rail lines, and
bridges. These items include, but are not limited to, structural steel
or iron, steel or iron beams and columns, running rail and contact
rail. These requirements do not apply to steel or iron used as
components or subcomponents of other manufactured products or rolling
stock, or to bimetallic power rail incorporating steel or iron
components.
* * * * *
4. Amend Sec. 661.11 by adding paragraph (v)(31) to read as
follows:
Sec. 661.11 Rolling stock procurements.
* * * * *
(v) * * *
(31) Bimetallic power rail.
* * * * *
Issued in Washington, DC this 14th day of November 2008.
James S. Simpson,
Administrator.
[FR Doc. E8-27820 Filed 11-21-08; 8:45 am]
BILLING CODE 4910-57-P