[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Rules and Regulations]
[Pages 30237-30239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14703]


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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: Final rule; correcting amendment.

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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.
    Because FTA believed adopting the petitions through a Final Rule 
would have altered the regulatory environment without notice-and-
comment from all affected parties who may have been unaware of the 
petition, FTA declined to accept the petition and instead issued a 
Notice of Proposed Rulemaking.
    Through this Final Rule, FTA is amending its Buy America regulation 
to include bi-metallic composite conducting rail on the list of 
traction power equipment. As such, bi-metallic rail need only consist 
of 60 percent domestic content, with final assembly taking place in the 
United States.
    In addition, FTA is amending Appendix A of section 661.7 to restore 
the public interest waivers for small purchases which was inadvertently 
deleted and to update a cross reference to the list of products 
exempted under the Buy American Act of 1933, and amending statutory 
references in the compliance certifications in section 661.12

DATES: Effective Date: July 27, 2009.

FOR FURTHER INFORMATION CONTACT: Richard L. 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:

I. Background

    On November 24, 2008, FTA published a Notice of Proposed Rulemaking 
(NPRM) (73 FR 70950) seeking public comment whether bi-metallic rail 
used as part of a power traction system should continue to be treated 
as a steel or iron product under section 661.3, a manufactured product 
under section 661.5, or traction power equipment under section 
661.11(v). This was the outgrowth of a previous Buy America rulemaking 
(70 FR 71246) in which the Federal Transit Administration (FTA) 
discussed several proposals mandated by the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) (Pub L. 109-59),

[[Page 30238]]

proposing to make conforming amendments to its Buy America regulation 
(49 CFR part 661).
    During the earlier open comment period, several commenter 
recommended that aluminum composite conducting rail, otherwise known as 
Bimetallic Power Transmission (BPTS) equipment, which 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) stated 
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 who supported 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.
    The November 2005 NPRM only asked whether enumerated items on an 
FTA-developed list should be added to the list of traction power 
equipment in section 661.11(v). The petitioners' 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 published the 
subsequent NPRM (73 FR 70950, Nov. 24, 2008).

II. Comments Received

    FTA received three comments in response to the NPRM. One commenter, 
a vendor of power rail equipment, asked whether a supplier of bi-
metallic rail had sought the change and asked FTA to divulge the 
identity of the requestor. FTA believes that the identity of a 
requestor was not germane to the proposed rule, which should be 
evaluated on its merits and not on the identity of any petitioner. 
Moreover, the identity of possible petitioners could have been readily 
ascertained by reviewing the docket comments submitted during the two 
previous Buy America rulemakings.
    Another commenter noted that the list of manufactured products in 
the proposed Appendix A to section 661.3 did not accurately reflect the 
current treatment of ``systems'' as redefined in FTA's September 2007 
Final Rule. The text of the revised Appendix A has been revised 
accordingly.
    A public transportation trade association, writing on behalf of its 
1,500 member organizations, commended FTA on its commitment to follow 
through on the comments filed during the previous rulemaking and 
raising the issue in a forum for proper consideration by the industry 
and public like. The association reiterated its support for the 
amendment as expressed in its earlier public comments to the docket, 
noting that virtually every product on the list of traction power 
equipment is a manufactured product and that FTA needed to 
differentiate between conventional steel conducting rail and bi-
metallic conducting rail.
    In light of the lack of any objections to the NPRM, and the strong 
and consistent support of the member-based trade association, FTA is 
amending its regulation as proposed in the NPRM.
    After publication of the September 2007 Final Rule, FTA was 
informed of the need to make two technical corrections to Appendix A to 
Sec.  661.7. First, the cross-reference in paragraph (a) to the list of 
items exempted under the Federal Buy American Act of 1933 needed to be 
updated to reflect the current regulatory citation. Accordingly, the 
citation is being changed from 48 CFR 25.108 to 48 CFR 25.104. Second, 
the standing public interest waiver for small purchases (60 FR 37930, 
July 24, 1995) was inadvertently deleted during the earlier 
rulemakings. While it was clear from the statute that Congress intended 
for FTA to rescind its public interest waiver for 15-passenger vans, 
there is nothing in the record that indicates any intent to rescind the 
small purchase exemption. Therefore, FTA is restoring the small 
purchase exemption as paragraph (c).

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

[[Page 30239]]

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.

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.


0
Accordingly, for the reasons described in the preamble, 49 CFR part 661 
of the Code of Federal Regulations is amended as follows:

PART 661--BUY AMERICA

0
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.


0
2. In Sec.  661.3, 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 systems; computers; 
information systems; security systems; data processing systems; and 
mobile lifts, hoists, and elevators.


0
3. In Sec.  661.5, revise 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.
* * * * *

0
4. In Sec.  661.7, revise Appendix A to Sec.  661.7 to read as follows:


Sec.  661.7  Waivers.

* * * * *

Appendix A to Sec.  661.7--General Waivers

    (a) All waivers published in 48 CFR 25.104 which establish 
excepted articles, materials, and supplies for the Buy American Act 
of 1933 (41 U.S.C. 10a-d), as the waivers may be amended from time 
to time, apply to this part under the provisions of Sec.  661.7 (b) 
and (c).
    (b) Under the provisions of Sec.  661.7 (b) and (c) of this 
part, a general public interest waiver from the Buy America 
requirements applies to microprocessors, computers, microcomputers, 
or software, or other such devices, which are used solely for the 
purpose of processing or storing data. This general waiver does not 
extend to a product or device which merely contains a microprocessor 
or microcomputer and is not used solely for the purpose of 
processing or storing data.
    (c) Under the provisions of Sec.  661.7(b) of this part, a 
general public interest waiver from the Buy America requirements for 
``small purchases'' (as defined in the ``common grant rule,'' at 49 
CFR 18.36(d)) made by FTA grantees with capital, planning, or 
operating assistance.


0
5. Amend Sec.  661.11 by adding paragraph (v)(31) to read as follows:


Sec.  661.11  Rolling stock procurements.

    (v) * * *
    (31) Bimetallic power rail.
* * * * *

0
6. Amend Sec.  661.12 by removing the phrase ``section 165(b)(2) or 
(b)(4) of the Surface Transportation Assistance Act, as amended'' and 
add in its place the phrase ``49 U.S.C. 5323(j)(2)(C)''.

    Issued in Washington, DC, this 18th day of June, 2009.
Matthew Welbes,
Executive Director.
[FR Doc. E9-14703 Filed 6-24-09; 8:45 am]
BILLING CODE 4910-57-P