[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Notices]
[Pages 38388-38390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15865]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Notice of Decision to Grant Buy America Waiver to Washington 
Department of Transportation to Purchase Vossloh 101-LV Concrete Rail 
Ties

AGENCY: Federal Railroad Administration (FRA), United States Department 
of Transportation (DOT).

ACTION: Notice of decision to grant Buy America waiver.

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SUMMARY: FRA is issuing this notice to advise the public that it has 
granted the Washington Department of Transportation's (WSDOT) waiver 
request from the FRA Passenger Rail Investment and Improvement Act 
(PRIIA) Buy America requirement for the use of Vossloh 101-LV concrete 
ties in the Pacific Northwest Rail Corridor high-speed intercity 
passenger rail program funded by FRA grants. The waiver also covers 
three other high-speed intercity passenger rail projects being 
undertaken on BNSF Railway Company (BNSF) owned infrastructure in 
California, Texas and Illinois. The Vossloh 101-VL concrete rail ties 
are made in the United States but contain two components (dowel inserts 
and SKL-30 tension clamps) that are not manufactured in the United 
States. FRA has granted the waiver because dowel inserts and SKL-30 
tension clamps that meet the BNSF's operational and safety needs are 
not produced in the United States. This waiver is conditioned on BNSF's 
good faith efforts to find a domestic source for the components and is 
time limited to two years after the effective date of this waiver or 
until Vossloh begins manufacturing the components in the United States, 
whichever occurs first.

DATES: Written comments on FRA's determination to grant WSDOT's Buy 
America waiver request should be provided to the FRA on or before July 
2, 2012.

ADDRESSES: Comments: Comments related to Docket No. FRA-2012-0033 may 
be submitted by any of the following methods:
    (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-2012-0033. 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.
    Docket: For access to the docket to read comments received, go to 
http://www.regulations.gov at any time, or to the Docket Management 
Facility, U.S. Department of Transportation, West Building Ground 
Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, 
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal 
holidays. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Mr. Chris Van Nostrand, Attorney-Advisor, FRA Office of 
Chief Counsel, Mail Stop 10, West Building 3rd Floor, Room W31-208, 
1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-493-
6058) or via email at [email protected].

SUPPLEMENTARY INFORMATION: FRA has granted the waiver pursuant to 49 
U.S.C. Section 24405(a)(2)(B). On April 10, 2012, FRA published a 
Notice in the Federal Register advising the public of its receipt of 
WSDOT's waiver request and seeking comments from all interested parties 
regarding the availability of suitable domestically manufactured 
products, any public interest concerns, or the potential decision to 
grant the Buy America waiver. FRA did not receive any comments in 
response to the April 10th notice during a fifteen day public comment 
period. FRA also conducted its own independent evaluation of the 
availability of domestically manufactured products and did not identify 
a domestic source. Pursuant to

[[Page 38389]]

49 U.S.C. 24405(a)(4), the agency is required to publish in the Federal 
Register a detailed written justification as to why the wavier is 
needed and to provide the public with an opportunity to comment for a 
period not to exceed 15 days. For the reasons described in the letter 
provided in full below, FRA is granting WSDOT's waiver request. Since 
FRA received no comments about the request during the April 10th 
fifteen day public comment period, FRA is providing a short comment 
period pursuant to 49 U.S.C. 24405(a)(4) and this decision to grant the 
waiver request will become effective three days after this Notice is 
published in the Federal Register.
    The waiver decision letter provided in full below applies to the 
WSDOT projects receiving grant funds under FRA's High-Speed Intercity 
Passenger Rail (HSIPR) Program, as well as projects receiving HSIPR 
grant funds advanced by the California Department of Transportation, 
the Texas Department of Transportation, and the Illinois Department of 
Transportation.

Mr. David Smelser
Washington State Department of Transportation
310 Maple Park Ave SE
Olympia, WA 98504-7300

Dear Mr. Smelser:

    This letter is in response to your March 19, 2012, request that the 
Washington State Department of Transportation (WSDOT) be granted a 
waiver from the Federal Railroad Administration's (FRA) Buy America 
provision, at 49 U.S.C. Sec.  24405(a). Your waiver request contained a 
justification letter from the BNSF Railway Company (BNSF) which owns 
the infrastructure WSDOT intends to improve as part of the Pacific 
Northwest Rail Corridor program funded by an FRA grant. Such a waiver 
would permit WSDOT to purchase and have installed American-made Vossloh 
101-VL concrete rail ties which contain two components that are not 
manufactured in the United States.
    The FRA also received the BNSF justification letter from the 
California Department of Transportation (Caltrans), the Texas 
Department of Transportation (TxDOT), the Illinois Department of 
Transportation (IDOT) (with WSDOT, collectively ``grantees'') all of 
whom received grant funding under FRA's High-Speed Intercity Passenger 
Rail (HSIPR) Program. The BNSF justification letter covers the 
following projects: the Pacific Northwest Rail Corridor Program, the 
Amtrak Quad Cities to Chicago Service Initiation Project, the Tower 55 
At-Grade Improvement Project Section, and the Los Angeles to Fullerton 
Triple Track--Segment 7 Project.\1\
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    \1\ This decision on WSDOT's Buy America waiver request will 
also apply to the HSIPR projects advanced by IDOT, TXDOT, and 
Caltrans on BNSF infrastructure using the Vossloh 101-VL concrete 
rail tie.
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    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 
Secretary (delegated to the FRA Administrator) may waive the Buy 
America requirement only if 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; (D) or 
including domestic material will increase the cost of the overall 
project by more than 25 percent. 49 U.S.C. Sec.  24405(a)(2)(A)-(D). In 
its justification letter BNSF asserts that two components of the 
Vossloh 101-L concrete ties--a dowel insert and SKL-30 tension clamps--
are not produced in the United States in sufficient and reasonably 
available amounts and are not of a satisfactory quality and that 
therefore a waiver is warranted under 49 U.S.C. Sec.  24405(a)(2)(B).
    For the following reasons, I am granting WSDOT's request. According 
to the justification letter, since it began installing concrete ties in 
the 1970's, BNSF has worked closely with manufacturers to evaluate and 
test various concrete tie products and technologies. As described in 
its justification letter, as concrete tie technology advanced and 
became a more viable alternative to wooden ties, BNSF intensified its 
efforts to test all available products in an effort to establish a 
standard for use across its system. As a result, BNSF selected the 
Vossloh 101-LV tie as the standard concrete tie for use on BNSF's 
network in 2008. The Vossloh 101-LV concrete tie was selected as BNSF's 
standard for the following reasons:
     Vossloh concrete ties meet or exceed the technical 
standards of the American Railway Engineering and Maintenance-of-Way 
Association (``AREMA'');
     BNSF's performance testing of the Vossloh concrete tie 
system demonstrated excellent results across all measured criteria, 
including longitudinal restraint, maintenance of gage, freedom of 
motion, thermal expansion and failure rates;
     Vossloh concrete ties feature several unique design 
elements, such as the lack of a shoulder and a field side angle guide 
plate that matches the width of the tie, which result in reduced wear, 
reduced maintenance costs and longer product life; and
     Installation and maintenance of Vossloh concrete ties can 
be largely automated compared to other concrete tie systems, which 
improves safety and efficiency while reducing overall maintenance time 
and cost.
    As stated in its justification letter, BNSF has searched for 
domestically manufactured dowel inserts and SKL-30 clamps that are 
compatible with the American-made Vossloh 101-LV concrete tie system. 
In addition, while there are alternative concrete tie systems available 
in the market, they do not meet BNSF's specific operational and 
maintenance needs.
    Through its justification letter and during conversations with FRA 
staff, BNSF maintains that the selection of the Vossloh concrete tie 
system as the standardized concrete tie system used on BNSF 
infrastructure was based on the criteria above and occurred in 2008 
prior to the obligation of FRA grant funding. Additionally, BNSF 
suggests that installing different products would pose potentially 
insurmountable technical complications. For example, alternative rail 
ties if used in the FRA-funded projects would not be consistent with 
BNSF's existing concrete tie system or corresponding maintenance and 
installation equipment and procedures employed by BNSF. Requiring BNSF 
to procure and install such alternative concrete ties would require 
BSNF to purchase specialized installation and maintenance equipment at 
a substantial cost, as BNSF's current equipment is designed for the 
installation and maintenance of the Vossloh tie and would not be 
compatible with alternative rail ties. As such, while there are other 
concrete tie systems available, such systems are not compatible with 
BNSF's existing infrastructure and for that reason are not of 
satisfactory quality for installation in the FRA-funded projects.
    Furthermore, the selection of the Vossloh 101-LV concrete tie 
system was made on technical, safety, and economic considerations 
rooted in BNSF's long experience installing and maintaining rail tie 
systems for use by both freight and intercity passenger trains. The FRA 
therefore finds that BNSF has made an adequate showing that the 
manufactured products meeting BNSF's appropriate specifications are not

[[Page 38390]]

produced in a sufficient and reasonably available amount.
    The FRA also solicited public comments on the waiver request for a 
period of 15 days. The waiver request was made available for public 
review on FRA's Web site and through a notice published in the Federal 
Register. The Federal Register notice requested the public's views on 
the waiver request and for any information regarding the availability 
of suitable domestically manufactured products. FRA did not receive any 
comments on the waiver request or any information regarding the 
availability of suitable domestically manufactured products.
    The WSDOT and BNSF began discussions with FRA concerning the 
Vossloh concrete tie in late 2011. Since then, WSDOT and BNSF have 
consulted with FRA's legal and technical staff in determining how FRA's 
Buy America requirements apply to the Vossloh concrete tie and to other 
FRA investments on BNSF infrastructure. As part of this consultation, 
BNSF participated in calls with the U.S. Department of Commerce, 
National Institute of Standards and Technology, Hollins Manufacturing 
Extension Program (NIST-MEP), an agency that helps encourage the 
development of a domestic supply base to support intermodal 
transportation in the United States, including rail infrastructure. 
These conversations led to BNSF's commitment to help facilitate 
conversations between NIST-MEP and Vossloh.
    The FRA understands that BNSF is one of the largest users of 
concrete ties in North America with over 11 million concrete ties 
currently in track. Consequently, FRA acknowledges that BNSF has a 
substantial interest in ensuring that the concrete ties installed on 
its system meet BNSF's specific needs in terms of performance, 
durability and cost efficiency. However, as demonstrated in the waiver 
request, BNSF also recognizes that as a ``large supplier of rail 
infrastructure and construction materials it is uniquely situated to 
encourage American manufacturing of those products.'' The FRA 
appreciates that BNSF has committed to working with Vossloh to explore 
the feasibility of having the foreign components made in the United 
States and to continue an ongoing dialog with FRA and NIST-MEP. 
Further, FRA is encouraged to hear that Vossloh has separately begun 
the process to identify potential suitable locations on which to 
construct a manufacturing facility for the dowels and SKL-30 tension 
clamps.
    For the foregoing reasons, FRA is granting WSDOT's Buy America 
waiver request.\2\ The waiver is conditioned on BNSF's good faith 
efforts to facilitate conversations between NIST-MEP, FRA and Vossloh 
in order to explore the feasibility of having the dowel and SKL-30 
tension clamps made in the United States. Pursuant to 49 U.S.C. Sec.  
24405(a)(4), FRA will publish a detailed written justification in the 
Federal Register and provide notice of such finding and an opportunity 
for public comment after which this waiver will become effective. This 
waiver is granted only because of the specific facts of these projects; 
any future requests for a waiver regarding this product will not be 
granted without a specific showing that domestic products for that 
particular project also are not reasonably available at that time. 
Additionally, unless otherwise approved by FRA in writing, this waiver 
is time limited to two years after the effective date of this waiver or 
until Vossloh begins manufacturing the components in the United States, 
whichever occurs first.
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    \2\ This waiver applies to the SKL-30 tension clamp and the 
dowel insert manufactured in Germany and does not apply to any other 
component of the Vossloh 101-LV concrete rail tie that might be 
available from both foreign and domestic sources.

Sincerely,
Joseph C. Szabo
Administrator

    Issued in Washington, DC on June 25, 2012.
Melissa Porter,
Chief Counsel.
[FR Doc. 2012-15865 Filed 6-26-12; 8:45 am]
BILLING CODE 4910-06-P