[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