[Federal Register Volume 81, Number 214 (Friday, November 4, 2016)]
[Notices]
[Pages 76997-76999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26653]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2016-0036]


Notice of Proposed Buy America Waiver for Replacement Parts on 
Diesel Multiple Unit Rail Vehicles

AGENCY: Federal Transit Administration, DOT.

[[Page 76998]]


ACTION: Notice of proposed Buy America waiver and request for comment.

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SUMMARY: The Federal Transit Administration (FTA) received a request 
from the North County Transit District (NCTD) in California for a Buy 
America non-availability waiver for the procurement of specified 
replacement parts for Diesel Multiple Unit (DMU) rail vehicles. The 12 
DMU rail vehicles were manufactured by Siemens as a part of their 
Desiro series and were placed in revenue service in 2008. Mid-life 
maintenance and replacement overhauls of vehicle parts are now required 
in order to ensure safe and continuous transit service. In accordance 
with 49 U.S.C. 5323(j)(3)(A), FTA is providing notice of the waiver 
request and seeks public comment before deciding whether to grant the 
request.

DATES: Comments must be received by November 14, 2016. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Please submit your comments by one of the following means, 
identifying your submissions by docket number FTA-2016-0036:
    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, West Building, Ground Floor, Room W12-
140, Washington, DC 20590-0001.
    4. Hand Delivery: U.S. Department of Transportation, 1200 New 
Jersey Avenue SE., Docket Operations, M-30, West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001 between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must make reference to the ``Federal 
Transit Administration'' and include docket number FTA-2016-0036. Due 
to the security procedures in effect since October 2011, 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 April 11, 2000 (65 FR 19477), or you may 
visit http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Cecelia Comito, Assistant Chief 
Counsel, at (202) 366-2217 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to provide 
notice and seek comment on whether the FTA should grant a non-
availability waiver for NCTD's purchase of replacement parts on their 
Siemens-manufactured Desiro series DMU rail vehicles, including, but 
not limited to, Power Pack Assembly, Power Truck Assembly, Jakobs Truck 
Assembly, Transmission, Primary Suspension, Secondary Suspension, Power 
Wheelset Assembly, Power Truck Brake Rotors, Jakobs Truck Brake Rotors, 
Power Truck Wheels, Jakobs Truck Wheels, A/C Compressors, and Carbody 
Brake Components, Automatic Train Couplers, and HVAC Roof Mounted Units 
(the ``Replacement Parts''). The Replacement Parts are necessary for 
mid-life maintenance of the DMU rail vehicles.
    With certain exceptions, FTA's Buy America requirements prevent FTA 
from obligating an amount that may be appropriated to carry out its 
program 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). A manufactured product is considered 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. A component is considered of U.S. origin if 
it is manufactured in the United States, regardless of the origin of 
its subcomponents. 49 CFR 661.5(d). 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 waiver (non-availability 
waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
    NCTD provides transit service to the entire North San Diego County, 
serving more than 12 million riders annually. In 2003, NCTD requested 
and received from FTA a non-availability Buy America waiver for the 
procurement of 12 DMU vehicles for use on NCTD's Sprinter line, with 15 
light rail stations between the cities of Escondido and Oceanside. NCTD 
purchased the 12 DMU vehicles in 2004 and placed the vehicles into 
revenue service in 2008 on NCTD's Sprinter line. The useful life of the 
vehicles is 25 years.
    According to NCTD, the Replacements Parts for the DMU vehicles are 
nearing the end of their useful service lives and showing signs of wear 
and fatigue. Without periodic capital equipment replacement and/or 
rebuild, the likelihood of mechanical downtime increases significantly, 
equating to prolonged service outages for riders. In March 2013, NCTD 
removed the Sprinter service from revenue service for more than two 
months due to premature wear of one of the three braking systems and 
unavailability of domestic replacement parts. NCTD intends to replace 
the components over several phases during the coming years, from 2018 
through 2026. The last phase is anticipated to be procured over a 
subsequent seven-year period. Any non-availability waiver granted would 
be effective for all phases of these projects and will expire upon 
completion of these projects.
    As a part of its search for domestic Replacement Parts, NCTD issued 
a Request for Information (RFI) on November 12, 2013 to maintenance and 
engineering communities to determine if any firms existed that could 
either supply Buy America compliant parts and components, or reverse 
engineer the parts and components utilizing plans and specifications 
provided. More than 300 vendors received the RFI; 19 downloaded the 
RFI. One vendor responded that ``with proper specifications, drawings, 
and samples, we may be able to design and supply Buy America Compliant, 
OE equivalent, air bellows, primary suspension, and passenger 
bellows.'' However, the original equipment manufacturer (``OEM'') would 
not provide the requested proprietary information. NCTD undertook three 
additional procurements for the Replacement Parts. Three responses were 
received; none could certify to Buy America compliance. Under 49 CFR 
661.7(c)(1), ``It will be presumed that the conditions exist to grant 
this non-availability waiver if no responsive and responsible bid is 
received offering an item produced in the United States.''
    NCTD's 12 vehicles are the only Siemens Sprinter vehicles in the 
United States. Additionally, since these vehicles were specifically 
designed to meet California Public Utilities Commission rail safety 
requirements, Sprinter is the only vehicle of its kind internationally. 
NCTD's multiple procurement efforts have demonstrated that there are no 
suppliers willing to invest in infrastructure to manufacture parts that 
are suitable only for NCTD's 12 vehicles.

[[Page 76999]]

    Finally, under 49 U.S.C. 5323(j)(6), FTA cannot deny an application 
for a waiver based on non-availability unless FTA can certify that (i) 
the steel, iron, or manufactured good (the ``item'') is produced in the 
United States in a sufficient and reasonably available amount; and (ii) 
the item produced in the United States is of a satisfactory quality. 
Additionally, FTA must provide a list of known manufacturers in the 
United States from which the item can be obtained. FTA is not aware of 
any manufacturers who produce the Replacement Parts in the United 
States.
    The 12 DMUs purchased by NCTD were granted a waiver from Buy 
America. NCTD's efforts to identify domestic manufacturers for the 
various Replacement Parts were unsuccessful. FTA proposes to grant NCTD 
a non-availability waiver of the Buy America requirements for the 
Replacement Parts for the 12 DMUs which will be acquired for the 
replacement of the components over several phases from 2018 through 
2026. Any non-availability waiver granted would be effective for all 
phases of these projects and will include Replacement Parts acquired to 
maintain the DMUs for their 25-year useful life.
    The purpose of this notice is to publish NCTD's request and seek 
public comment from all interested parties in accordance with 49 U.S.C. 
5323(j)(3)(A). Comments will help FTA understand completely the facts 
surrounding the request, including the effects of a potential waiver 
and the merits of the request. After consideration of the comments, FTA 
will publish a second notice in the Federal Register with a response to 
comments and noting any changes made to the proposed waiver as a result 
of the comments received.

Ellen Partridge,
Chief Counsel.
[FR Doc. 2016-26653 Filed 11-3-16; 8:45 am]
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