[Federal Register Volume 75, Number 229 (Tuesday, November 30, 2010)]
[Notices]
[Pages 74132-74134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30178]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
Notice of Intent To Grant Buy America Waiver to Northern New
England Passenger Rail Authority To Purchase 3,340 AREMA Specified
Carbon Steel Standard 1\1/8\ Nominal Diameter Nuts
AGENCY: Federal Railroad Administration (FRA), United States Department
of Transportation (DOT).
ACTION: Notice of intent to grant Buy America waiver.
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SUMMARY: FRA is issuing this notice to advise the public that it
intends to grant the Northern New England Passenger Rail Authority's
(NNEPRA) waiver request from FRA's Buy America requirement, 49 U.S.C.
24405(a), for the purchase and use of 3,340 AREMA specified carbon
steel standard 1\1/8\ nominal diameter nuts. FRA intends to grant the
waiver because there are no domestic commercially available track nuts
that meet the needed specifications and custom made fabricated track
nuts that cannot be delivered for 10-16 weeks are not ``reasonably
available'' under 49 U.S.C. 24405(a)(2)(B), especially given NNEPRA has
mobilized for the track construction and Maine has a short construction
season. In addition, NNEPRA used a competitive bidding process to
procure the track nuts and no bidders came forward at that time who
could comply with Buy America. Finally, FRA published public notice of
the NNEPRA waiver request in the Federal Register on August 2, 2010.
This notice also failed to identify a reasonably available domestic
source. 49 U.S.C. 24405(a)(4) requires that the Secretary provide
public notice of a determination that it is necessary to waive the Buy
America requirement and provide a maximum fifteen day opportunity for
public comment before the waiver becomes final.
DATES: Written comments on FRA's determination to grant NNEPRA's Buy
America waiver request should be provided to the FRA on or before
December 15, 2010.
ADDRESSES: Please submit your comments by one of the following means,
identifying your submissions by docket number FRA-2010-0122. All
electronic submissions must be made to the U.S. Government electronic
site at http://www.regulations.gov. Commenters should follow the
instructions below for mailed and hand-delivered comments.
(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, Room W12-140, Washington, DC
20590-0001; or
(4) Hand Delivery: Room W12-140 on the first floor of the West
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Instructions: All submissions must make reference to the ``Federal
Railroad Administration'' and include docket number FRA-2010-0122. Due
to security procedures in effect since October 2001, 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 on April 11, 2000 (65 FR 19477), or visit
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Ms. Linda Martin, Attorney-Advisor, FRA Office of Chief
Counsel, (202) 493-6062 or via e-mail at [email protected].
SUPPLEMENTARY INFORMATION: See waiver letter below.
Ms. Marina Douglass,
Manager of Budget and Administration,
Northern New England Passenger Rail Authority,
75 West Commercial Street, Suite 104,
Portland, ME 04101-4631,
Re: Request for Waiver of Buy America Requirement,
Dear Ms. Douglass:
This letter is in response to your July 14, 2010, request that the
Northern New England Passenger Rail Authority (NNEPRA) be granted a
waiver from the Federal Railroad Administration's (FRA) Buy America
provision, at 49 U.S.C. 24405(a), to permit NNEPRA to purchase 3,340
foreign-made AREMA specified carbon steel standard 1\1/8\ nominal
diameter track nuts. Section 24405(a) authorizes the Secretary of
Transportation to obligate certain grant funds only if the steel, iron,
and manufactured goods used in the project are produced in the United
States. The
[[Page 74133]]
Secretary, or his delagatee, may waive the Buy America requirement
provided that he or she finds that: (A) applying it 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. 49 U.S.C. 24405(a)(2)(A)-(D). The NNEPRA asserts that the
specific required track nuts are not produced in the United States in
sufficient and reasonably available amounts and that, therefore, a
waiver is warranted under 49 U.S.C. 24405(a)(2)(B). For the following
reasons, I am granting NNEPRA's request.
In January 2010, NNEPRA was awarded $35 million in America Recovery
and Reinvestment Act (ARRA) funds to extend Amtrak's Downeaster
passenger service from its existing route of Boston, Massachusetts to
Portland, Maine further north to station stops in Freeport and
Brunswick, Maine. The track bolts and nuts needed to be delivered to
the project in time for the planned start of continuous welded rail
installation the week of August 16, 2010. Consequently, delivery within
30 days of the notice of award was a requirement in the Invitation to
Bid. The low bid for the nuts was $0.63 each with a total cost of
$2,104.20, which includes shipping. The low bidder was able to meet the
required delivery schedule. During the procurement process for these
track bolts, all of the bid package holders asserted that while the
track bolts were domestically produced, the standard square nuts no
longer were and would have to be obtained from a foreign manufacturer.
In late June 2010, NNEPRA informally notified FRA staff that it
could find no domestic source of 3,340 AREMA specified carbon steel
standard 1\1/8\ nominal diameter track nuts, which were needed for the
project. At that time, FRA asked NNEPRA to expand the search for a
domestic source, and suggested they contact the Railway Supply
Institute (RSI) and/or other suppliers of track equipment. The NNEPRA
contacted many of the major railroad track material suppliers,
including Harmer Steel, LB Foster, A&K Railroad Materials, Unitrac
Railroad Materials, Atlantic Track & Turnout, Vossloh, Progress Rail,
and Railroad Tools & Solutions. They all confirmed that they could not
supply domestically produced AREMA standard square nuts for track
bolts. The NNEPRA also attempted to determine if it would be possible
to have the nuts custom-manufactured in the United States. The NNEPRA
contacted Rockford Bolts, a major domestic producer of AREMA standard
track bolts, and were told they could not custom fabricate the standard
square nuts. The NNEPRA also contacted Lewis Bolt & Nut, a major U.S.
bolt manufacturer, and they stated they would not custom fabricate the
standard square nuts and did not know of any other U.S. manufacturer
who would. The FRA also independently contacted RSI. The RSI knew of no
domestic source of the track nuts. At that time, FRA staff told NNEPRA
that its only option was to file a formal waiver request.
If FRA determines that it is necessary to grant a waiver, it is
required to (before the date on which the finding takes effect) ``(A)
publish in the Federal Register a detailed written justification as to
why the waiver is needed; and (B) provide notice of such finding and an
opportunity for public comment on such finding for a reasonable period
of time not to exceed 15 days.'' 49 U.S.C. 24405(a)(4). Though not
required to publish waiver requests before a decision whether to grant
or deny has been made, FRA published notice of NNEPRA's waiver request
in the Federal Register on August 2, 2010 in order to invite public
comment on whether there were or were not domestic sources of the
required track nuts.
The FRA received five responses to its August 2, 2010 Public
Notice, which are summarized here in no particular order.
Allison Symmonds, representative for the Alliance for
American Manufacturing requested that the waiver be denied, commenting
that Dyson Corporation and Chicago Nut & Bolt could provide the
specified track nuts.
John A. Tolman, National Legislative Representative of the
Brotherhood of Locomotive Engineers and Trainmen (BLET) and James A.
Stern, Jr., National Legislative Director of the United Transportation
Union (UTU) submitted a joint comment. The BLET and UTU reported that
the tool and hardware supply company Grainger could supply the
specified track nuts made in the United States. They requested denial
of the waiver, or a design change if the design of the track bolt
required foreign made nuts. The BLET and UTU expressed a desire to
reserve Buy America exemptions for legitimate reasons and categorized
the subject waiver as ``trivial'' and a ``nuisance.''
W. Dan Pickett, President of the Brotherhood of Railroad
Signalmen (BRS), opposed the waiver. The BRS also commented that the
10-day comment period was inadequate to submit detailed comments, and
broadly asserted that more than one million domestically produced track
bolts and nuts meeting the stated specifications are in service or
supplier inventory and expressed confidence that numerous domestic
producers can offer the required nuts. The BRS did not indicate any
specific domestic producer.
Rick Inclima, Director of Safety for the Brotherhood of
Maintenance of Way Employees Division (BMWED) of the Teamsters Rail
Conference opposed the waiver as well as the 10-day comment period as
inadequate. The BMWED asserted that more than one million domestically
produced track bolts and nuts meeting the stated specifications are in
service or supplier inventory and expressed confidence that numerous
domestic producers can offer the required nuts. The BMWED did not
indicate any domestic producer.
An anonymous commenter speculated that the quantity of
nuts required should be sufficient for any American shop to become able
to produce the order.
Because two of the responses indicated that there may be domestic
sources of the track nuts, FRA requested that NNEPRA contact the
identified sources and confirm whether in fact they could provide the
track nuts. The NNEPRA contacted these sources and found as follows:
1. Grainger Industrial Supply
The NNEPRA confirmed that Grainger could not provide domestically
produced AREMA standard square head track nuts.
2. Chicago Track Nut and Bolt
The NNEPRA confirmed that Chicago Track Nut & Bolt could in 10 to
12 weeks post-contract award custom fabricate standard square track
nuts meeting the AREMA specifications for a cost of $59,518.80. This
cost did not include delivery.
3. Dyson Corp.
The NNEPRA confirmed that Dyson Corp. could in 12 to 16 weeks post-
contract award custom fabricate standard square track nuts meeting the
AREMA specifications for a total cost of $16,432.80. This cost did not
include delivery.
The NNEPRA concluded that while the identified domestic custom
fabricated track nuts could be secured in 10 to 16 weeks at a cost of
approximately $14,000 more than the lowest foreign bidder this did not
mean
[[Page 74134]]
that domestic track nuts are ``reasonably available'' and the waiver
should still be granted.
CONCLUSION:
For the following reason, FRA is granting NNEPRA's request. The FRA
agrees with NNEPRA in that custom made fabricated track nuts that
cannot be delivered for 10-16 weeks are not ``reasonably available''
under 49 U.S.C. 24405(a)(2)(B), especially given that NNEPRA has
mobilized for construction, prompt project implementation is consistent
with ARRA's economic recovery goals, and Maine has a short construction
season. In addition, NNEPRA used a competitive bidding process to
procure the track nuts. Neither Chicago Track Nut and Bolt nor Dyson
Corp. came forward at that time, but instead NNEPRA received bids only
from suppliers offering foreign-made track nuts. This waiver is granted
only because of the specific facts of this project; any future requests
for a waiver regarding this product will not be granted without a
specific showing that domestic track nuts for that particular project
also are not reasonably available at that time. This decision does not
become final until fifteen (15) days after its publication in the
Federal Register.
Sincerely,
Karen Rae
Deputy Administrator
Note: The Deputy Administrator is making this decision because
Administrator Joseph C. Szabo is recused from making it. Mr. Szabo
is a former United Transportation Union (UTU) employee. The UTU
commented in opposition to granting the waiver request.
Issued in Washington, DC, on November 23, 2010.
Mark E. Yachmetz,
Associate Administrator for Railroad Development, Federal Railroad
Administration.
[FR Doc. 2010-30178 Filed 11-29-10; 8:45 am]
BILLING CODE 4910-06-P