[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Pages 62587-62588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25063]



Federal Transit Administration

[Docket No. FTA-2008-0047]

Notice of Buy America Waiver Request by the Massachusetts Bay 
Transportation Authority for Final Assembly of Rail Rolling Stock

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of Buy America waiver request and call for comment.


SUMMARY: The Massachusetts Bay Transportation Authority (MBTA) has 
asked the Federal Transit Administration (FTA) to waive its Buy America 
requirements on the basis of public interest to permit Vossloh 
Espa[ntilde]a S.A. (Vossloh) to manufacture and assemble two pilot 
locomotives in Spain. MotivePower, Inc., a domestic competitor to 
Vossloh has asked FTA to deny MBTA's request. FTA seeks public comment 
before deciding whether to grant MBTA's request. This Notice sets forth 
MBTA's arguments for and MotivePower's arguments against a public 
interest waiver and seeks comment thereon.

DATES: Comments must be received by October 28, 2008. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Please submit your comments by only one of the following 
means, identifying your submissions by docket number FTA-2008-0047. 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 
    (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 
Transit Administration'' and include docket number FTA-2008-0047. 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 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 please contact Jayme L. 
Blakesley at (202) 366-0304 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to seek public 
comment on whether the Federal Transit Administration should waive its 
Buy America requirements of 49 CFR Part 661 for two prototype 
locomotives to be manufactured and assembled in Spain by Vossloh 
Espa[ntilde]a S.A. (Vossloh) for the Massachusetts Bay Transportation 
Authority (MBTA).
    The Massachusetts Bay Transportation Authority (MBTA) is procuring 
28 new diesel electric locomotives. These locomotives will replace the 
older portion of its commuter rail locomotive fleet as well as to meet 
the increasing demand on [its] commuter rail system. MBTA has asked for 
delivery of these locomotives to commence in 2011, at which time fifty-
four percent of its fleet of eighty locomotives will have reached its 
useful life of twenty-five years.
    Two parties submitted proposals--MotivePower, Inc. (MotivePower) 
and Vossloh Espa[ntilde]a S.A. (Vossloh). These parties prepared and 
submitted their Best and Final Offers (BAFO) on May 6, 2008. Vossloh's 
BAFO was for a new-design locomotive. With its BAFO, Vossloh certified 
non-compliance with the Federal Transit Administration's (FTA) Buy 
America requirements for the assembly of pilot locomotives. Vossloh 
asked MBTA to petition FTA for a waiver of its Buy America 
    By letter dated September 3, 2008, MBTA forwarded Vossloh's request 

[[Page 62588]]

a public interest waiver from the requirements of 49 U.S.C. 5327(j) and 
the applicable Buy America regulations at 49 CFR part 661. 
Specifically, MBTA has asked FTA to allow Vossloh to assemble two pilot 
locomotives in Spain.
    Without the waiver, Vossloh estimates that the geographic 
separation between the design-engineering department in Spain and the 
final assembly facility in Mayfield, Kentucky, would result in an 
unacceptable increase in labor costs to Vossloh. A waiver for final 
assembly of two pilot locomotives would limit the cost, advance the 
schedule, and therefore reduce Vossloh's bid price for the entire 
    Vossloh and MBTA believe that such a waiver is in the public 
interest because it will enable Vossloh ``to submit a competitive bid 
with respect to price and schedule,'' and because it will ``expand the 
competitive range to include Vossloh as a compliant bidder.''
    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). One such exception is if applying the Buy America 
requirements ``would be inconsistent with the public interest.'' 49 
U.S.C. 5323(j)(2)(A). Before granting such waiver, FTA must issue a 
detailed written statement justifying why the waiver is in the public 
interest, and must publish this justification in the Federal Register, 
providing the public with a reasonable time for notice and comment of 
not more than seven calendar days. 49 CFR 661.7(b). This notice 
satisfies the aforementioned requirement.
    MotivePower, Inc. (MotivePower), a competitor to Vossloh, has 
written several letters opposing MBTA's request for a Buy America 
waiver. If awarded the contract, MotivePower would perform final 
assembly at its Boise, Idaho, facilities. According to MotivePower, a 
Buy America waiver in favor of Vossloh would jeopardize up to 200 
current full time employees in its Boise, Idaho, facility and 
additional jobs in its supplier plants located across the country. 
MotivePower distinguishes between this procurement for passenger 
locomotives and those of light rail vehicles for which FTA has granted 
waivers in the past. Unlike the market for light rail vehicles, 
MotivePower states that ``domestic capacity and engineering know how 
[with respect to passenger locomotives] has, quite fortunately, not yet 
been lost to foreign competition.''
    Before deciding whether to grant MBTA's request, FTA seeks comment 
from all interested parties. In the interest of transparency, FTA has 
published copies of MBTA's request and the letters it received from 
MotivePower. Interested parties may access these materials by visiting 
the docket site at http://www.regulations.gov, docket number FTA-2008-
0047. Please submit comments by October 28, 2008. Late-filed comments 
will be considered to the extent practicable.

    Issued this 15th day of October, 2008.
Severn E.S. Miller,
Chief Counsel.
 [FR Doc. E8-25063 Filed 10-20-08; 8:45 am]