[Federal Register Volume 73, Number 227 (Monday, November 24, 2008)]
[Proposed Rules]
[Pages 70950-70952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27820]


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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 [email protected].

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