i 

U.S. Department Deputy Administrator 1200 New Jersey Avenue, SE 

Washington. DC 20590 of Transportation 

Federal Railroad 


Administration 


('0',0 DEC 1 6 L :u 

Ms. Marina Douglass 


Manager of Budget and Administration 


NOlthern New England Passenger Rail Authority 


75 West Commercial Street, Suite 104 


Portland, ME 04101-4631 


Re: Request for \Vaiver of Buy America Requirement 

Dear Ms. Douglass: 

This letter is in response to your July 14, 20 I 0, request that the Northern New England 

Passenger Rail Authority (NNEPRA) be granted a waiver from the Federal Railroad 

Administration's (FRA) Buy America provision, at 49 U.S.C. § 24405(a), to pennit 

]\,iNEPRA to purchase 3,340 foreign-made AREMA specified carbon steel standard 1-118 

nominal diameter track nuts. Section 24405(a) authorizes the Secretary ofTransportation 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, or his delagatee, may waive the 

Buy America requirement provided that 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; or (D) including domestic material 

will increase the cost of the overall project by more than 25 percent. 49 US.C. §§ 

24405(a)(2)(A)-(D). 

The ~"'NEPRA asserts that the specific required track nuts are not produced in the United 

States in sufficient and reasonably available amounts and that, therefore, a waiver is 

warranted under 49 US.C § 24405(a)(2)(B). For the following reasons, I am granting 

NNEPRA's request. 

In January 2010, NNEPRA was awarded $35 million in America Recovery and 

Reinvestment Act (ARRA) funds to extend Amtrak's Downeaster passenger service from its 

existing route ofBoston, Massachusetts to Portland, Maine further north to station stops in 

Freeport and Brunswick, Maine. The track bolts and nuts needed to be delivered to the 

project in time for the planned start of continuous welded rail installation the week of 

August 16, 2010. Consequently, delivery within 30 days of the notice of award was a 
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requirement in the Invitation to Bid. The low bid for the nuts was $0.63 each with a total 

cost of$2,104.20, which includes shipping. The low bidder was able to meet the required 

delivery schedule. During the procurement process for these track bolts, all of the bid 

package holders asserted that while the track bolts were domestically produced, the standard 

square nuts no longer were and would have to be obtained from a foreign manufacturer. 

In late June 2010, NNEPRA informally notified FRA staff that it could find no domestic 

source of 3,340 AREMA specified carbon steel standard 1-118 nominal diameter track nuts, 

which were needed for the proj ect. At that time, FRA asked NNEPRA to expand the search 

for a domestic source, and suggested they contact the Railway Supply Institute (RSI) and/or 

other suppliers of track equipment. The NNEP~J\ contacted many of the major railroad 

track material suppliers, including Harmer Steel, Foster, A&K Railroad Materials, 

Unitrac Railroad Materials, Atlantic Track & Turnout, Vossloh, Progress Rail, and Railroad 

Tools & Solutions. They all confirmed that they could not supply domestically produced 

AREMA standard square nuts for track bolts. The NNEPRA also attempted to determine if 

it would be possible to have the nuts custom-manufactured in the United States. The 

l\'NEPRA contacted Rockford Bolts, a major domestic producer of AREMA standard track 

bolts, and were told they could not custom fabricate the standard square nuts. The NNEPRA 

also contacted Lewis Bolt & Nut, a major U.S. bolt manufacturer, and they stated they 

would not custom fabricate the standard square nuts and did not know of any other U.S. 

manufacturer who would. NNEPRA concluded that the track nuts were not reasonably 

available domestically. The FRA also independently contacted RSL The RSI knew ofno 

domestic source ofthe track nuts. At that time, FRA staff told NNEPRA that its only option 

was to file a formal waiver request. . 

IfFRA determines that it is necessary to grant a waiver, it is required to (before the date on 

which the finding takes effect) "(A) publish in the Federal Register a detailed written 

justification as to why the waiver is needed; and (B) provide notice ofsuch finding and an 

opportunity for public comment on such finding for a reasonable period oftime not to 

exceed 15 days." 49 U.S.c. § 24405(a)(4). Though not required to publish waiver requests 

before a decision whether to grant or deny has been made, FRA published notice of 

NNEPRA's waiver request in the Federal Register on August 2, 2010 in order to invite 

public comment on whether there were or were not domestic sources ofthe required track 

nuts. 

The FRA received five responses to its August 2,2010 Public Notice, which are 

summarized here in no particular order. 

• Allison Symmonds, representative for the Alliance for American Manufacturing 

requested that the waiver be denied, commenting that Dyson Corporation and Chicago Nut 

& Bolt could provide the specified track nuts. 
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• John A. Tolman, National Legislative Representative of the Brotherhood of 

Locomotive Engineers and Trainmen (BLET) and James A. Stern, Jr., :Kational Legislative 

Director ofthe United Transportation Union (UTU) submitted ajoint comment. The BLET 

and UTU reported that the tool and hard"vare supply company Grainger could supply the 

specified track nuts made in the United States. They requested denial of the waiver, or a 

design change ifthe design ofthe track bolt required foreign made nuts. The BLET and 

UTU expressed a desire to reserve Buy America exemptions for legitimate reasons and 

categorized the subject waiver as "trivial"and a "nuisance." 

.. W. Dan Pickett, President of the Brotherhood of Railroad Signalmen (BRS), opposed 

the waiver. The BRS also commented that the 1 O-day comment period was inadequate to 

submit detailed comments, and broadly asserted that more than one million domestically 

produced track bolts and nuts meeting the stated specifications are in service or supplier 

inventory and expressed confidence that numerous domestic producers can offer the 

required nuts. The BRS did not indicate any specific domestic producer. 

Rick Inclima, Director of Safety for the Brotherhood of Maintenance of Way 

Employes Division (BMWED) ofthe Teamsters Rail Conference opposed the waiver as 

"veIl as the 10 day comment period as inadequate. The BMWED asserted that more than 

one million domestically produced track bolts and nuts meeting the stated specifications are 

in service or supplier inventory and expressed confidence that numerous domestic producers 

can offer the required nuts. The BMWED did not indicate any domestic producer. 

An anonymous commenter speCUlated that the quantity of nuts required should be 

sufficient for any American shop to become able to produce the order. 

Because two of the responses indicated that there may be domestic sources of the track nuts, 

FRA requested that NNEPRA contact the identified sources and confiml whether in fact 

they could provide the track nuts. The NNEPRA contacted these sources and found as 

follows; 

1. Grainger Industrial Supply 

The NNEPRA confimled that Grainger could not provide domestically produced AREMA 

standard square head track nuts. 
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2. r]1icago Track Nut and Bolt 

The NN"EPRA confirmed that Chicago Track Nut & Bolt could in 1 0 to 12 weeks post­


contract award custom fabricate standard square track nuts meeting the AREMA 


specifications for a cost of $59,518.80. This cost did not include delivery. 


3. Dyson Corp 

The NNEPRA confim1ed that Dyson Corp could in 12 to 16 weeks post contract award 

custom fabricate standard square track nuts meeting the AREMA specifications for a total 

cost of$16,432.80. This cost did not include delivery. 

The l'-i'NEPRA concluded that while the identified domestic custom fabricated track nuts 

could be secured in 10 to 16 weeks at a cost of approximately $14,000 more than the lowest 

foreign bidder this did not mean and that domestic track nuts are "reasonably available" and 

the waiver should stilI be granted. 

CONCLUSION: 

For the following reason, FRA is granting NNEPRA's request. The FRA agrees with 

NNEPRA in that custom made fabricated track nuts that cannot be delivered for 10-16 

weeks are not "reasonably available" under 49 U.S.c. § 24405(a)(2)(B), especially given 

that NNEPRA has mobilized for construction, prompt project implementation is consistent 

with ARRA's economic recovery goals, and Maine has a short construction season. In 

addition, NNEPRA used a competitive bidding process to procure the track nuts. Neither 

Chicago Track Nut and Bolt nor Dyson Corp. came forward at that time, but instead 

-J\TNEPRA received bids only from suppliers offering foreign-made track nuts. This waiver 

is granted only because of the specific facts of this project; any future requests for a waiver 

regarding this product will not be granted without a specific showing that domestic track 

nuts for that particular project also are not reasonably available at that time. This decision 

does not become final until fifteen (15) days after its publication in the Federal Register. 

Sincerely, 

Karen Rae 


Deputy Administratorl 


I The Deputy Administrator has made this decision because Administrator Joseph C Szabo was recused 

from making it. Mr. Szabo is a former United Transportation Union (UTU) employee. The UTU 

commented in opposition to granting this waiver request.