2017-21441. Notice of Intent To Grant a Buy America Waiver to the City of Raleigh To Use Certain Non-Domestic Components of a Fire Alarm System

AGENCY:

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

ACTION:

Notice of intent to grant Buy America waiver.

SUMMARY:

FRA is issuing this notice to advise the public it intends to grant the City of Raleigh (City) a waiver from FRA's Buy America requirement to use certain non-domestic components of a fire alarm system Code Electric, Inc. provided for the Raleigh Union Station project, in partnership with the North Carolina Department of Transportation (NCDOT). Code Electric, Inc. is an electrical contractor for the Raleigh Union Station project.

DATES:

Written comments on FRA's determination to grant a Buy America waiver to the City should be provided to the FRA on or before October 12, 2017.

ADDRESSES:

Please submit your comments by one of the following means, identifying your submissions by docket number FRA-2012-0033. All electronic submissions must be made to the U.S. Government electronic site at http://www.regulations.gov. Commenters should follow the instructions below for mailed and hand-delivered comments:

(1) Web site: http://www.regulations.gov. Follow the instructions for submitting comments on the U.S. Government electronic docket site;

(2) Fax: [phone];

(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 reference the “Federal Railroad Administration” and include docket number FRA-2012-0033. Due to security procedures in effect since October 2001, mail received through the U.S. Postal Service may be subject to delays. Parties submitting responses 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 on April 11, 2000 (65 FR 19477), or visit http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. John Johnson, Attorney-Advisor, FRA Office of Chief Counsel, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

FRA provided information on its reasons for granting this waiver in a letter to the City of Raleigh, quoted below:

Mr. Richard L. Kelly

Engineering Services Director

City of Raleigh

One Exchange Plaza

219 Fayetteville Street, Suite 801

Raleigh, NC 27601

Re: Request for Waiver of Buy America Requirement

Dear Mr. Kelly:

On September 23, 2016, Code Electric, Inc. requested a waiver from the Federal Railroad Administration's (FRA) Buy America requirement (49 U.S.C. 24405(a)) to use certain components of a fire alarm system, which cannot be sourced in the United States, in the Raleigh Union Station project (Project). The Project is for construction of a passenger train station in downtown Raleigh that will replace the existing Amtrak station. The City of Raleigh (City), through its contractor, awarded Code Electric, Inc. the electrical construction sub-contract for the Project. The $90 million project is funded in part by two Transportation Infrastructure Generating Economic Recovery grants of $26.5 million from Fiscal Year (FY) 2012 and $11.5 million from FY 2013 to the City, and $15 million from a $520 million American Recovery and Reinvestment Act of 2009 grant to the North Carolina Department of Transportation. FRA is providing its decision on the waiver to the City as the FRA grant recipient for this Project.

The Project is subject to 49 U.S.C. 24405(a)(1). Section 24405(a)(1) requires the steel, iron, and manufactured goods used in a project to be produced in the United States. FRA may waive the Buy America requirements if FRA finds that: (1) Applying the requirements would be inconsistent with the public interest; (2) the steel, iron, and goods manufactured in the United States are not produced in sufficient and reasonably available amounts or are not of a satisfactory quality; (3) rolling stock or power train equipment cannot be bought or delivered to the United States within a reasonable time; or (4) including domestic material will increase the cost of the overall project by more than 25 percent.

For the reasons stated in this letter, FRA grants a “non-availability” Buy America waiver. This waiver applies only to this Project.

Code Electric seeks a waiver for the following components (Components) for use in the Project:

Description	Quantity	Description	Quantity
Addressable Pull Station	15	Addressable Module Flush Cover	22
Duct Sensor Housing	6	Overvoltage Suppressor	1
Remote Test Station	6	Relay IAM	13
Sampling Tube 73″, Plastic	6	Addressable Module Flush Cover	13
Relay IAM	6	Relay Id NET 2 IAM W/T Sense	1
Addressable Module Flush Cover	6	10 AH Battery	2
Indoor/Outdoor Surface Back Box	8	Address Module Isolator	10
Speaker Low Profile Ceiling Mount	9	Addressable Module Flush Cover	10
Supervised IAM	22	50 AH Battery	4
IAM Bracket	22	Laptop	1

The total cost of the fire alarm system is less than $30,000, and the total cost of the non-U.S. manufactured components is less than $10,000.

Code Electric asserts the following facts in support of the waiver request:

• Code Electric received several bids for the fire alarm system from suppliers Honeywell, Tyco Simplex Grinnell, and Edwards (United Technologies). Although these suppliers source many fire alarm system components from U.S. manufacturers, none of the suppliers offered a one hundred percent Buy America-compliant system. All fire alarm system suppliers use a mix of foreign and US-made components; and
• The foreign components used by suppliers vary. However, due to programming, interoperability, and certification issues, the components are not interchangeable among systems. Therefore, suppliers cannot swap out components to meet Buy America.

FRA independently verified these assertions with its Monitoring and Technical Assistance Contractor (MTAC), TranSystems. An electrical engineer from FRA's MTAC explained that large international suppliers source or manufacture pieces of the fire alarm system in different countries. Further, many portions of the system are addressable (individually programmable), which means the software and hardware must be compatible and tested. In addition, fire alarm components and systems are UL® listed. UL® is a third-party, independent company that certifies safety compliance of many systems and their components, including fire alarm systems. Attempting to swap pieces of a fire alarm system would jeopardize its UL® listing and could cause product warranty and liability issues.

FRA concludes a waiver is appropriate under 49 U.S.C. 24405(a)(2)(B) for the Components because domestically-produced Components are not currently “produced in sufficient and reasonably available amounts.” 49 U.S.C. 24405(a)(2)(B). FRA bases this determination on the following:

• For competitively bid, commercial products for buildings, such as fire alarm systems, FRA views receiving no Buy America-compliant bids as presumptive evidence the conditions exist to grant a non-availability waiver;
• On October 28, 2016, FRA provided public notice of this waiver request and a 15-day opportunity for comment on its Web site. FRA also emailed notice to over 6,000 recipients that requested Buy America notices through “GovDelivery.” FRA received one comment. However, the commenter did not provide any information about a domestic source for a fully Buy America-compliant fire alarm system; and
• FRA's MTAC concurred with Code Electric that due to programming, interoperability, and certification issues, components are not interchangeable among systems. Therefore, fire alarm system suppliers cannot swap out components to meet Buy America.

This waiver applies only to this Project for these specific components.

Under 49 U.S.C. 24405(a)(4), FRA will publish this letter granting the Buy America waiver to the City in the Federal Register and provide notice of such finding and an opportunity for public comment after which this waiver will become effective.

Questions about this letter can be directed to, John Johnson, Attorney-Advisor, at [e-mail] or [phone].

Sincerely,

Heath Hall

Acting Administrator

cc: Code Electric, Inc.

Brett A. Jortland,

Acting Deputy Chief Counsel.