[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Notices]
[Pages 38388-38390]
From the Federal Register Online via the Government Printing 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 christopher.vannostrand@dot.gov.
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