81 FR 75903 - Notice of Proposed Buy America Waiver for Ultrastraight Rail

DEPARTMENT OF TRANSPORTATION
Federal Transit Administration

Federal Register Volume 81, Issue 211 (November 1, 2016)

The Federal Transit Administration (FTA) received a request from the Central Puget Sound Transit Authority (Sound Transit) for a Buy America non-availability waiver for the procurement of ultrastraight rail. Sound Transit seeks to procure ultrastraight rail for a portion of its Northgate Link light rail extension to avoid exceedance of contractually-mandated vibration thresholds. Sound Transit seeks a waiver because there is no domestic manufacturer available to produce rail that has passed the applicable vibration testing standards. 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. If granted, the waiver would apply to a one-time FTA-funded procurement by Sound Transit.

[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Notices]
[Pages 75903-75904]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-26316]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2016-0037]


Notice of Proposed Buy America Waiver for Ultrastraight Rail

AGENCY: Federal Transit Administration, DOT.

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 Central Puget Sound Transit Authority (Sound Transit) for a 
Buy America non-availability waiver for the procurement of 
ultrastraight rail. Sound Transit seeks to procure ultrastraight rail 
for a portion of its Northgate Link light rail extension to avoid 
exceedance of contractually-mandated vibration thresholds. Sound 
Transit seeks a waiver because there is no domestic manufacturer 
available to produce rail that has passed the applicable vibration 
testing standards. 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. If granted, the waiver would 
apply to a one-time FTA-funded procurement by Sound Transit.

DATES: Comments must be received by November 8, 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-2016-0037.
    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-2016-0037. 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

[[Page 75904]]

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 Sound Transit's purchase of approximately 
15,100 feet of ultrastraight rail. On February 23, 2016, Sound Transit 
requested a Buy America waiver for the ultrastraight rail because the 
as-installed condition of ultrastraight rail, procured from a domestic 
manufacturer, failed to meet applicable vibration threshold 
requirements. Sound Transit estimates that the ultrastraight rail will 
cost approximately $300,000.
    Sound Transit's Northgate Link extension is a $1.9 billion rail 
project that consists of 4.3 miles and 3 new stations, and runs through 
residential and employment areas, including the University of 
Washington. Approximately 15,100 feet of that extension will run under 
the University of Washington's Health Sciences and Physics-Astronomy 
buildings, which house precision-measurement laboratories and 
experiments conducted by Nobel Prize winning faculty. The project's 
potential impact on the University's buildings was considered as part 
of the environmental review process required by the National 
Environmental Policy Act (NEPA). In 2006, FTA issued a final Record of 
Decision (ROD) for the project, and required implementation of 
mitigation measures, including a measure that would minimize vibration 
under the University buildings. Sound Transit then executed a 2007 
agreement with the University of Washington in which Sound Transit 
agreed to not exceed specified vibration thresholds, which could be met 
through use of ultrastraight rail, with parameters for that rail based 
on American Railway Engineers Maintenance-of-Way Association 
(``AREMA'') standards.
    Sound Transit contacted domestic rail manufacturers regarding their 
ability to produce ultrastraight rail within the agreed upon AREMA 
specifications for the rail. Two leading manufacturers, Steel Dynamics, 
Inc. (SDI) and EVRAZ North America (EVRAZ), stated unequivocally that 
they are unable to fabricate rail that meets the specification. Sound 
Transit subsequently explored using domestically-sourced, milled rail. 
However, testing of the as-installed milled rail found that the rail 
failed to meet the applicable vibration thresholds. Due to its 
unsuccessful efforts to procure domestically-sourced ultrastraight rail 
within the vibration thresholds, Sound Transit seeks a non-availability 
waiver of the Buy America requirements for domestically-sourced steel.
    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). The steel and iron requirements apply to all construction 
materials made primarily of steel or iron and used in infrastructure 
projects such as transit or maintenance facilities, rail lines, and 
bridges. These items include, but are not limited to, structural steel 
or iron, steel or iron beams and columns, running rail and contact 
rail. For steel or iron to be considered produced in the United States, 
all steel and iron manufacturing processes must take place in the 
United States, except metallurgical processes involving refinement of 
steel additives. 49 CFR 661.5.
    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). Any non-availability waiver granted 
would be effective for a one-time procurement of the rail and would 
expire upon completion of that procurement.
    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 ultrastraight rail that would meet the 
required parameters in the United States.
    Sound Transit conducted an extensive search for a domestic 
manufacturer of ultrastraight rail, including testing domestically-
sourced, milled rail. Unfortunately, testing of the as-installed milled 
rail found that the rail failed to meet the applicable vibration 
thresholds. Due to its unsuccessful efforts to procure domestically-
sourced ultrastraight rail within the vibration thresholds, FTA 
proposes to grant Sound Transit a non-availability waiver of the Buy 
America requirements for 15,100 feet of ultrastraight rail, as required 
in the 2007 agreement between Sound Transit and the University. This 
non-availability waiver would be effective for a one-time procurement 
of the rail and would expire upon completion of that procurement.
    The purpose of this notice is to publish Sound Transit'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. 2016-26316 Filed 10-31-16; 8:45 am]
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