[Federal Register Volume 80, Number 166 (Thursday, August 27, 2015)]
[Notices]
[Pages 52081-52083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21220]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2014-0025]


Notice of Buy America Waiver for Track Turnout Component

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of Buy America Waiver.

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SUMMARY: In response to a Buy America waiver request from the Long 
Island Rail Road (LIRR), a subsidiary of the New York Metropolitan 
Transportation Authority (MTA), the Federal Transit Administration 
(FTA) hereby waives its Buy America requirements for the movable point 
frog component of one track turnout that LIRR needs for Stage 1.1 of 
its Jamaica Station Capacity Improvements Project, Phase I (JCI-Phase 1 
Project). The turnout itself, however, is subject to FTA's Buy America 
requirements and, accordingly, the turnout must be manufactured in the 
United States.
    This Buy America waiver does not apply to track turnout components 
for Stages 2.0.1, 2.0.2, 2.0.3, and any other stages of LIRR's JCI-
Phase I Project, or for LIRR's State of Good Repair Program, as LIRR 
has withdrawn such waiver

[[Page 52082]]

requests through correspondence dated February 9, 2015, February 13, 
2015, and June 25, 2015. Moreover, this Buy America waiver does not 
apply to track turnout components needed for the Northeast Corridor 
Congestion Relief Project at Harold Interlocking, for which the Federal 
Railroad Administration (FRA) granted a Buy America waiver on May 15, 
2015, as FRA funds are being used for that project.

DATES: This waiver is effective immediately.

FOR FURTHER INFORMATION CONTACT: Richard L. Wong, FTA Attorney-Advisor, 
at (202) 366-4011 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to announce 
that FTA is granting a non-availability Buy America waiver for the 
movable point frog component (also known and referred to as a ``vee 
point'') on one track turnout that LIRR needs for Stage 1.1 of LIRR's 
JCI-Phase I Project.
    FTA is providing LIRR with Federal funds to support its JCI-Phase I 
Project, the total cost of which is approximately $301,653,240. With 
certain exceptions, FTA's Buy America requirements prevent FTA from 
obligating Federal funds 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) (2012). All ``manufactured end 
products'' must be produced in the United States, and FTA considers a 
manufactured product to be produced in the United States if: (1) All of 
the manufacturing processes for the product take place in the United 
States, and (2) all of the components of the product are of U.S. 
origin. 49 CFR 661.5(d) (2014). FTA considers a component to be of U.S. 
origin if it is manufactured in the United States, regardless of the 
origin of its subcomponents. 49 CFR 661.5(d)(2). If, however, FTA 
determines that ``the steel, iron, and goods produced in the United 
States are not produced in a sufficient and reasonably available amount 
or are not of a satisfactory quality,'' then FTA may issue a non-
availability waiver of these requirements. 49 U.S.C. 5323(j)(2)(B); 49 
CFR 661.7(c).
    Through the JCI-Phase I Project, LIRR will reconfigure its tracks 
in Jamaica Station, construct a new passenger platform to facilitate 
LIRR service to Atlantic Terminal, and increase capacity for LIRR train 
service into the new Grand Central Terminal following completion of the 
East Side Access Project. Currently, Jamaica Station is one of the 
busiest stations in LIRR's system, with over 250,000 customers and 500 
trains passing through the station each weekday. Phase 1 of the project 
is divided into Stages 1 and 2.
    The scope of work for the project involves the installation of new 
track turnouts. In June 2013, LIRR issued a solicitation for two 
turnouts containing rail bound magnesium frogs in connection with Stage 
1 of the JCI-Phase I Project. On May 16, 2014, LIRR awarded Contract 
Number 6121 to Picone Schiavone II, which certified its compliance with 
FTA's Buy America requirements for the track turnouts. Following the 
award, LIRR determined that these turnouts would be insufficient to 
meet LIRR's operational needs. Accordingly, LIRR revised its 
specifications for the project to include two turnouts with movable 
point frogs, which is the component type that is the subject of this 
waiver.
    The movable point frogs are essential components of track turnouts, 
and LIRR indicated that it needs them for the following operational 
reasons: (1) They are necessary to withstand the frequent and heavy use 
by passenger and freight trains traveling along LIRR's right of way; 
(2) they allow trains to travel through the turnouts at higher speeds, 
ultimately providing more throughput during rush hour; (3) they reduce 
impact loading to the turnouts; and (4) they provide for less wear and 
tear, thereby requiring less overall maintenance, extending the useful 
lives of the turnouts, and resulting in fewer outages and negative 
impacts on LIRR's operations. Picone Schiavone II advised LIRR that it 
was unable to certify compliance with FTA's Buy America requirements 
based upon LIRR's new specifications requiring movable point frogs as 
components of the track turnouts.
    By letter dated September 19, 2014, LIRR requested a non-
availability Buy America waiver for four components that LIRR needs for 
ten track turnouts on Stages 1.1, 2.0.1, 2.0.2, and 2.0.3 of its JCI-
Phase I Project. Those four components are the Schwihag roller 
assemblies, Schwihag plates, ZU1-60 steel switch point rail sections, 
and the movable point frogs. At the time that LIRR submitted its waiver 
request, none of these turnout components were manufactured in the 
United States. The roller assemblies and plates were manufactured in 
Switzerland, the ZU1-60 steel switch point rail sections were 
manufactured in Austria, and the movable point frogs were manufactured 
in Germany.
    Based on previous solicitations, LIRR concluded that it was unable 
to identify a domestic source for these four track turnout components. 
LIRR also pointed to market research and manufacturer outreach that it 
had conducted for a prior Buy America waiver request related to the 
East Side Access Project.\1\ In conducting that research, LIRR utilized 
the National Railroad Passenger Corporation's (Amtrak) market research, 
which Amtrak had conducted at the request of FRA in connection with a 
separate Buy America waiver request. This research included outreach to 
manufacturers that were previously identified by the U.S. Department of 
Commerce's National Institute of Standards and Technology (NIST) in a 
December 2012 Supplier Scouting Report. LIRR's market research 
indicated that there was no known company presently manufacturing, or 
able to domestically manufacture, the Schwihag roller assemblies, 
Schwihag plates, ZU1-60 steel switch point rail sections, and movable 
point frogs. LIRR also contacted seven additional potential 
manufacturers, none of whom were willing and capable of domestically 
producing these components.
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    \1\ On February 18, 2015, FTA published a Federal Register 
notice waiving its Buy America requirements for the Schwihag roller 
assemblies, Schwihag plates, ZU1-60 steel switch point rail 
sections, and movable point frogs that LIRR needed in connection 
with nine turnouts for VHL03 LIRR Stage 3 of the East Side Access 
Project and one turnout for VHL04 LIRR Stage 4. 80 FR 8753.
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    Given LIRR's extensive market research, on December 19, 2014 FTA 
published a Federal Register notice requesting comment on LIRR's waiver 
request pursuant to 49 CFR 661.7. 79 FR 75857. The docket closed on 
January 20, 2015, and to date, FTA has received no comments regarding 
the notice.
    After the docket closed, by letter dated February 13, 2015, LIRR 
indicated to FTA that it had become aware of alternate turnout designs 
that would be compatible with LIRR's infrastructure and available from 
a domestic manufacturer. LIRR indicated its intention to use this 
alternate turnout design for its programs and projects, including the 
JCI-Phase I Project. LIRR specified that the alternate turnout design 
required modification to meet LIRR's operational requirements and to 
ensure adequate performance and reliability, considering that over 
250,000 customers and 500 trains pass through Jamaica Station each 
weekday.
    Given the alternate design and the potential availability of the 
turnout components from a domestic manufacturer, LIRR narrowed its 
waiver request from the ten turnouts needed for Stages 1.1, 2.0.1, 
2.0.2, and 2.0.3, to only two turnouts needed for Stage 1.1.

[[Page 52083]]

    LIRR indicated that it needs the waiver for Stage 1.1 because the 
procurement of the turnouts in that stage is on a critical path. LIRR 
calculated that, absent a non-availability waiver for the components of 
these two turnouts, LIRR's JCI-Phase I Project would be delayed by 
approximately one year, based on the extended lead times for design 
modifications, fabrication, and delivery of the alternate turnout 
design. LIRR withdrew its waiver request with respect to the components 
of eight turnouts needed for Stages 2.0.1, 2.0.2, and 2.0.3 because the 
procurement of those turnouts is not on a critical path and LIRR 
believes that it has enough time to design, fabricate, manufacture, 
deliver, and install the domestic alternates without causing delays to 
those stages of the project.
    Following LIRR's letter dated February 13, 2015, LIRR engaged in 
additional efforts to utilize domestic manufacturers for the project. 
By electronic mail dated June 25, 2015, LIRR further narrowed its 
waiver request to apply to only one turnout needed for Stage 1.1 of its 
JCI-Phase I Project. LIRR also withdrew its request for a Buy America 
waiver with respect to the Schwihag roller assemblies, Schwihag plates, 
and the ZU1-60 steel switch point rail sections for that turnout. LIRR 
determined that, based on the project's redesign, LIRR could use 
domestically manufactured components as alternatives. LIRR limited its 
waiver request to just the movable point frog needed for a single 
turnout in Stage 1.1.
    Based upon LIRR's good faith efforts to identify domestic 
manufacturers for the turnout components and redesign the project, 
LIRR's informed conclusion that there are presently no U.S. 
manufacturers that are willing and capable of producing the movable 
point frog critically needed for the project, and the lack of responses 
to FTA's Federal Register notice, FTA hereby issues a non-availability 
waiver to LIRR, pursuant to 49 CFR 661.7(c), for the movable point frog 
component needed for one turnout in Stage 1.1 of the JCI-Phase I 
Project. This waiver does not apply to the turnout itself, and 
accordingly, the turnout must be manufactured in the United States 
pursuant to FTA's Buy America requirements.
    This Buy America waiver does not apply to track turnout components 
for Stages 2.0.1, 2.0.2, 2.0.3, and any other stages of LIRR's JCI-
Phase I Project, or for LIRR's State of Good Repair Program, as LIRR 
has withdrawn such waiver requests. Furthermore, this Buy America 
waiver does not apply to track turnout components needed for the 
Northeast Corridor Congestion Relief Project at Harold Interlocking, 
for which FRA granted a Buy America waiver on May 15, 2015, as FRA 
funds are being used for that project.

    Issued on August 21, 2015.
Dana Nifosi,
Acting Chief Counsel.
[FR Doc. 2015-21220 Filed 8-26-15; 8:45 am]
 BILLING CODE 4910-57-P