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Commission’s Rules has not been FOR FURTHER INFORMATION CONTACT: unacceptable for consideration. In amended. Robert Hayne, Media Bureau (202) 418– addition, this Report and Order reallots 2177. Channel 279C0, Station KYVA–FM, Federal Communications Commission. SUPPLEMENTARY INFORMATION: This is a from Grants, New Mexico, to Church John A. Karousos, synopsis of the Report and Order in MB Rock, New Mexico, and modifies the Assistant Chief, Audio Division, Media Docket No. 05–245, adopted July 30, license of Station KYVA–FM Bureau. 2007, and released July 31, 2007. The accordingly. The foregoing change of [FR Doc. E7–18500 Filed 9–19–07; 8:45 am] full text of this decision is available for community provides the first local aural BILLING CODE 6712–01–P inspection and copying during normal transmission service to Church Rock. business hours in the FCC Reference The Media Bureau’s Consolidated Information Center at Portals II, CY– Database System (CDBS) reflects these FEDERAL COMMUNICATIONS A257, 445 12th Street, SW., changes. COMMISSION Washington, DC 20554. The complete ADDRESSES: Federal Communications text of this decision may also be 47 CFR Part 73 Commission, 445 Twelfth Street, SW., purchased from the Commission’s copy Washington, DC 20554. [DA 07–3478; MB Docket No. 05–245; RM– contractor, Best Copying and Printing, 111264, RM–11357] Inc. 445 12th Street, SW., Room CY– FOR FURTHER INFORMATION CONTACT: R. B402, Washington, DC 20554, telephone Barthen Gorman, Media Bureau, (202) Radio Broadcasting Services; Animas, 1–800–378–3160 or http:// 418–2180. NM; Corona de Tucson, AZ; www.BCPIWEB.com. The Commission SUPPLEMENTARY INFORMATION: This is a Lordsburg, NM; Sierra Vista, Tanque will send a copy of this Report and synopsis of the Commission’s Report Verde and Vail, AZ; and Virden, NM Order in a report to Congress and the and Order in MB Docket No. 05–263, adopted May 23, 2007, and released AGENCY: Federal Communications Government Accountability Office May 25, 2007. The full text of this Commission pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). Commission decision is available for ACTION: Final rule. inspection and copying during normal List of Subjects in 47 CFR Part 73 SUMMARY: In response to the business hours in the FCC’s Reference Counterproposal filed by Cochise Radio, Radio broadcasting. Information Center at Portals II, 445 Broadcasting, LLC and Desert West Air I As stated in the preamble, the Federal 12th Street, SW., Room CY–A257, Ranchers Corporation, this document Communications Commission amends Washington, DC 20554. The document reallots Channel 267C3 from Corona de 47 CFR part 73 as follows: may also be purchased from the Tucson to Tanque Verde, Arizona, and Commission’s duplicating contractor, PART 73—RADIO BROADCAST modifies the license of Station KKYZ to Best Copy and Printing, Inc., Portals II, SERVICES specify Tanque Verde as the community 445 12th Street, SW., Room CY–B402, of license. To continue local service at I 1. The authority citation for part 73 Washington, DC 20554, telephone 1– Corona de Tucson, it reallots Channel continues to read as follows: 800–378–3160 or http:// www.BCPIWEB.com. The Commission 253A from Vail, Arizona, to Corona de Authority: 47 U.S.C. 154, 303, 334, 336. Tucson, and modifies the Station KRDX will not send a copy of this Report and license to specify Corona de Tucson as § 73.202(b) [Amended] Order in a report to be sent to Congress and the Government Accountability the community of license. To replace I 2. Section 73.202(b), the Table of FM Office pursuant to the Congressional local service at Vail, it substitutes Allotments under New Mexico, is Review Act, see 5 U.S.C. 801(a)(1)(A), Channel 279A for Channel 279C1 at amended by adding Animas, Channel because Section 73.202(b) of the Lordsburg, New Mexico, reallots 279C1 and by adding Virden, Channel Commission’s Rules has not been Channel 279A to Vail, and modifies the 228C1. outstanding construction permit (File amended. Federal Communications Commission. No. BNPH–20050609ABD) to specify Federal Communications Commission. operation on Channel 279A at Vail. John A. Karousos, John A. Karousos, Finally, it allots Channel 279C1 to Assistant Chief, Audio Division, Media Animas, New Mexico, and Channel Bureau. Assistant Chief, Audio Division, Media Bureau. 228C1 to Virden, New Mexico, as first [FR Doc. E7–18499 Filed 9–19–07; 8:45 am] [FR Doc. E7–18495 Filed 9–19–07; 8:45 am] local services. The reference coordinates BILLING CODE 6712–01–P for the Channel 267C3 allotment at BILLING CODE 6712–01–P Tanque Verde, Arizona, are 32–19–59 and 110–45–19. The reference FEDERAL COMMUNICATIONS coordinates for the Channel 253A COMMISSION DEPARTMENT OF TRANSPORTATION allotment at Corona de Tucson, Arizona, are 32–55–39 and 110–37–57. The 47 CFR Part 73 Federal Transit Administration reference coordinates for the Channel [DA 07–2196; MB Docket No. 05–263; RM– 279A allotment at Vail, Arizona, are 31– 11269] 49 CFR Part 661 58–16 and 110–35–59. The reference [Docket No. FTA–2005–23082] coordinates for the Channel 279C1 Radio Broadcasting Services; Church allotment at Animas, New Mexico, are Rock and Grants, NM RIN 2132–AA90 31–56–50 and 108–28–45. The reference AGENCY: Federal Communications Buy America Requirements; End coordinates for the Channel 228C1 Commission. Product Analysis and Waiver allotment at Virden, New Mexico, are ACTION: Final rule; dismissal. Procedures 32–24–12 and 108–53–59. With this action, this proceeding is terminated. SUMMARY: This Report and Order AGENCY: Federal Transit Administration DATES: Effective September 20, 2007. dismisses two Counterproposals as (FTA), DOT.

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ACTION: Final rule. clarifications to the Buy America Two commenters urged FTA to regulations. publish both the incoming request and SUMMARY: The Safe, Accountable, The Second Notice of Proposed the proposed determination in the Flexible, Efficient Transportation Equity Rulemaking (SNPRM) (71 FR 69412, Federal Register. Several commenters Act: A Legacy for Users (SAFETEA–LU) Nov. 30, 2006) addressed six issues complained that monitoring both FTA’s requires the Federal Transit identified in the original NPRM but not Web site and the Federal Register Web Administration (FTA or the Agency) to covered in the initial final rule: (1) A site on a daily basis for potential waiver make certain changes to the Buy publication process for public interest petitions was unduly burdensome. America requirements. This Final Rule waivers to provide an opportunity for One commenter to both the NPRM creates a new publication process for public comment; (2) a clarification of and SNPRM suggested that FTA not public interest waivers to provide an Buy America requirements with respect limit publication of decisions to opportunity for public comment; to microprocessor waivers; (3) new approvals of waiver petitions. The clarifies Buy America requirements with provisions to permit post-award commenter noted that lessons learned respect to microprocessor waivers; waivers; (4) clarifications in the from disapprovals lead to a better issues new provisions to permit post- definition of ‘‘end products’’ with understanding and application of the award waivers; clarifies the definition of regards to (a) components and Buy America requirements. ‘‘end products’’ with regards to subcomponents, (b) major systems, and components, subcomponents, and major (c) a representative list of end products; B. FTA Response systems, and provides a representative (5) a clarification of the requirements for FTA believes that a dual Federal list of end products; clarifies the final assembly of rolling stock and a list Register publication process for both requirements for final assembly of of representative examples of rolling incoming requests and proposed rolling stock and provides stock items; (6) expanding FTA’s list of determinations would be slow and representative examples of rolling stock eligible communications, train control, cumbersome, jeopardizing FTA’s ability components; expands FTA’s list of and traction power equipment; and to maintain a 30-day processing time. communications, train control, and added a technical correction; and, an FTA believes that publication of traction power equipment; and updates update of the debarment and suspension incoming requests on FTA’s Buy debarment and suspension provisions to provisions to bring them into America Web site with simultaneous bring them into conformity with conformity with statutory amendments notice to trade associations such as the statutory amendments made by made by SAFETEA–LU. American Public Transportation SAFETEA–LU. 1. Published Justification for Public Association (APTA) and the Community EFFECTIVE DATE: The effective date of Interest Waivers Transportation Association of America this publication is October 22, 2007. In the first NPRM, FTA proposed (CTAA) provides interested parties with FOR FURTHER INFORMATION CONTACT: amending 49 CFR 661.7(b) to implement adequate notice and opportunity to Richard Wong, Office of the Chief the SAFETEA–LU requirement that FTA comment, and that formal publication of Counsel, Federal Transit publish justifications for public interest FTA’s proposed determination and Administration, 1200 New Jersey waivers in the Federal Register and justification in the Federal Register Avenue, SE., Washington, DC 20590, provide for notice and comment. The meets SAFETEA–LU’s notice and (202) 366–4011 or NPRM proposed to continue the current comment requirements. As explained in [email protected]. practice of posting all public interest the NPRM and SNPRM, FTA believes SUPPLEMENTARY INFORMATION: waiver requests on FTA’s Buy America the plain language of SAFETEA–LU and its legislative history expressly requires I. Background Web site for public review and comment, with the additional step of FTA to issue a written justification and On November 28, 2005, the Federal publishing FTA’s proposed approvals in to publish it in the Federal Register, Transit Administration (FTA) published the Federal Register for additional and only in instances where the a Notice of Proposed Rulemaking comment. justification supports a waiver request. (NPRM) in the Federal Register (70 FR After a thorough review of the See 49 U.S.C. 5323(j)(3); see also H.R. 71246) that discussed several proposals comments received in response to the Conf. Rep. No. 109–203, at 952 (2005). mandated by SAFETEA–LU (Pub L. NPRM, which were discussed at length However, FTA agrees with the 109–59, August 10, 2005), and proposed in the SNPRM, FTA believed that commenter who asked FTA to also to provide further clarification of SAFETEA–LU intended a four-step publish denial letters, and FTA will existing FTA decisions on Buy America. process: (1) Publish the incoming public publish both approval and denial letters Due to the complexity of many Buy interest waiver request on FTA’s Web on its Web site, as FTA believes that America issues addressed in the NPRM site for public review and comment; (2) researchers and potential applicants and the divergence of opinion in publish FTA’s proposed approvals and will find both documents useful. important areas, FTA issued a final rule FTA’s justification in the Federal With regards to the concern that that addressed fewer subjects than Register for formal notice and comment; monitoring both FTA’s Web site and the addressed in the NPRM. (71 FR 14112, (3) issue a formal written decision to the Federal Register for public interest Mar. 21, 2006.) These more routine applicant; and (4) post copies of the waivers will be unduly burdensome, topics covered in the final rule formal decision on FTA’s Web site. FTA has made improvements to its Web included: (1) Administrative review; (2) site whereby interested parties can the definition of ‘‘negotiated A. Comments Received subscribe to be notified whenever a new procurement;’’ (3) the definition of FTA received six comments in item is published on a specific FTA ‘‘contractor;’’ (4) repeal of the general response to the SNPRM. All supported webpage, including FTA’s table of its waiver for Chrysler vans; (5) an expedited approach. Most supported Federal Register publications. FTA certification under negotiated the 30-day timeframe proposed in the believes that this proactive notification procurements; (6) pre-award and post- SNPRM, although one commented that system will reduce, if not eliminate, the award review of rolling stock purchases; providing fair public notice was more need to constantly monitor both FTA’s and (7) miscellaneous corrections and essential than a rapid turnaround. Web site and the Federal Register for

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waiver petitions and determination microcomputers and microprocessors, contract award where a bidder or offeror letters. without changing the current regulatory had originally certified compliance with Accordingly, FTA believes the regime. the Buy America requirements, but can following process meets the no longer comply with its certification B. FTA Response requirements specified in SAFETEA– and contractual obligations due to LU: (1) Post notification of the public In FTA’s attempt to clarify that the commercial impossibility or interest waiver request on FTA’s Web waiver applied to devices ‘‘used solely impracticability. site and solicit comments on the for the purpose of processing or storing In the SNPRM, FTA revised the request; (2) based on the comments data,’’ commenters misinterpreted this provisions in the first NPRM based on received, prepare a justification that effort to mean that ‘‘input/output’’ responses from commenters who explains the rationale for approving or facilities and software should now be recommended that in the interest of denying a waiver request; (3) publish excluded from the waiver’s coverage. consistency, FTA use the existing the justification in the Federal Register Such is not the case. Although the process for non-availability waivers set for notice and comment within a current version of the general waiver at forth in 49 CFR 661.7(c). In addition, reasonable time; and (4) publish the 49 CFR 661.7, Appendix A, does not commenters suggested that FTA include final decision on FTA’s Web site include the term ‘‘input/output’’ a ‘‘good faith’’ element in its regarding the waiver request, based on facility, FTA has interpreted the waiver deliberations. FTA agreed and the comments received in response to the to include software (‘‘microcomputer SNPRM proposed that a grantee, when published justification. equipment, including software, of making a request for a post-award It should be noted that upon review foreign origin can be procured by waiver, should provide specific of the formal comments received in grantees.’’) (Emphasis added.) In evidence of a contractor’s good faith response to the publication of the addition, the inclusion of input/output when justifying the post-award waiver. proposed determination and devices under the waiver provision was This evidence would include justification in the Federal Register, used in a previous definition of a information about the origin of the FTA may ultimately determine that a microcomputer. See 50 FR 18760, May product or materials, invoices, or other waiver is not in the public interest, and 2, 1985 (‘‘A basic microcomputer relevant solicitation documents as deny the request, despite FTA’s initial includes a microprocessor, storage, and requested and that the item to be determination. FTA believes that this input/output facility, which may or may procured cannot now be obtained methodology would create a total not be on one chip.’’) (Emphasis added.) domestically due to commercial processing time of about 30 calendar FTA agrees with commenters that impossibility or practicability. days. Congress did not intend for FTA to Additionally, when determining change its current regulatory treatment whether conditions exist to grant a post- 2. Microcomputer/Microprocessor of microcomputer equipment. See H.R. award waiver, the SNPRM stated that Waivers Conf. Rep. No. 109–203, at 952 (2005) FTA would consider all appropriate In the SNPRM, FTA requested (‘‘In directing the Secretary to issue new factors on a case-by-case basis. comment on its proposal to implement regulations regarding microprocessors, the SAFETEA–LU requirement to computers, or microcomputers, there is A. Comments Received ‘‘clarify’’ that any waiver of the Buy no intent to change the existing FTA received four comments on the America requirements for a regulatory treatment of software or of revised language. Two commenters, one microprocessor, computer, or microcomputer equipment.’’) Because a large public transit agency and one a microcomputer, applies ‘‘only to a SAFETEA–LU directed FTA to system manufacturer concurred with the device used solely for the purpose of ‘‘clarify,’’ not alter current regulatory SNPRM’s revised approach. The third processing or storing data’’ and does not policy, FTA will continue to allow both commenter, a large transit agency, extend to the product or device software and input/output devices to be expressed concerns about validating the containing a microprocessor, computer, covered under the microcomputer/ credibility of its supplier or contractor or microcomputer. microprocessor waiver, provided that and the sufficiency of the evidence that the waiver is limited to the device used needed to be submitted to FTA as part A. Comments Received solely for the processing or storing data. of the waiver request. The transit agency FTA received nine comments on this Consistent with prior FTA rulemakings was concerned that it could be placed issue, many of which echoed identical and letters of determination, the waiver in a conflict of interest position or comments submitted in response to the does not extend to an entire product or subjected to litigation if had to advocate initial NPRM, proposing the exclusion device merely because it contains a on behalf of a given vendor. The fourth of input/output devices and software. microprocessor or microcomputer, such commenter, a large trade association Other commenters voiced objections to as a laptop computer, video display representing transit agencies and their the current methodology of considering monitor, farecard reader, or similar vendors and suppliers, opined that the the cost of the microcomputer/ piece of hardware or equipment. consideration of other bidders or microprocessor as domestic content for offerors should have no consideration in purposes of meeting the 60% domestic 3. Post-Award Waivers FTA’s evaluation of post-award non- content requirement, suggesting that the FTA sought comment in the first availability requests, believing that a cost of the exempted item should be NPRM on its proposal to create a post- frustrated second-lowest bidder could excluded from the sum of the end award non-availability waiver. Under hold a transit agency ‘‘economic product’s domestic and non-domestic FTA’s current regulation, a bidder or hostage’’ to a frustrated competitor who content. On the other hand, several offeror that certifies compliance with had obtained limited remaining commenters stressed that existing Buy America is ‘‘bound by its original domestic supplies through exclusive regulatory practices must be continued certification’’ and ‘‘is not eligible for a distribution agreement or other to avoid significant disruption in the waiver of those requirements.’’ 49 CFR arrangement. According to the trade industry, emphasizing that FTA was 661.13(c). The NPRM’s proposed association, the situation would result directed to ‘‘clarify’’ its existing Buy language would allow grantees to in significant cost increases as the America interpretations with regard to request a non-availability waiver after transit agency would be forced to

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terminate its contract with the initial differential waiver if the price of whether manufactured or contractor with no effective competition acquiring a domestic product would unmanufactured, that is acquired for to ensure reasonable pricing. increase the cost of the overall contract public use under a federally funded to the transit agency by more than 25 third party contract.’’ To that point, FTA B. FTA Response percent. Because the SNPRM stated that created a list of representative end FTA believes that the language set FTA would consider ‘‘all appropriate products that was included in the forth in the SNPRM forms a reasonable factors on a case-by-case basis’’ in SNPRM. approach. With regard to proving deciding whether to grant a post-award Based on its analysis and review of supplier or contractor credibility, a waiver, FTA believes it would be the comments received in response to transit agency may reasonably rely upon appropriate to take the reasonableness the first NPRM, FTA concurred with the a contractor’s representation, as making of any cost differential into account majority of commenters who a knowingly false claim in a Federally- when deciding whether to grant a recommended that FTA adopt the funded procurement could subject a waiver request. Whether the 25 percent second ‘‘non-shift’’ proposal in the perjurious contractor to Federal cost differential would apply to the cost SNPRM, finding that such an approach criminal statutes and possible of the non-available domestic product or would (1) foster reasonable debarment from future contracting to the cost of the overall contract is a predictability and stability in the transit opportunities. With regard to the factor FTA would consider on a case-by- business community, (2) enable offerors sufficiency of the evidence, the SNPRM case basis, depending upon the and bidders to price proposals more stated that FTA will consider all factors significance of the product to the overall accurately, and (3) allow transit on a case-by-cases basis. If FTA believes contract. agencies to obtain better prices. that the document submitted by a Several commenters opposed the grantee or its contractor is insufficient, 4. ‘‘End Products’’ NPRM’s ‘‘non-shift’’ approach, stating inadequate, or suspect, FTA may SAFETEA–LU directed FTA to define that keeping track of aftermarket rolling request additional information to the term ‘‘end product,’’ and in defining stock parts would not only prove to be determine whether there is sufficient the term, FTA is to ‘‘address the an impossible burden for grantees, it evidence to justify granting a waiver. procurement of systems under the would also discourage parts suppliers With regard to the concerns of the definition to ensure that major system from developing an aftermarket support third commenter that submitting a procurements are not used to structure within the United States, waiver request would raise conflict-of- circumvent the Buy America potentially increasing the lead time for interest issues, FTA believes that requirements.’’ In addition, SAFETEA– the purchase of replacement parts. submitting a post-award waiver request LU directed FTA to develop a list of These concerns were based on the would not constitute advocacy on behalf representative end products that are assumption that FTA would treat of a given vendor, but rather, constitutes subject to Buy America requirements. replacement parts under the rolling advocacy on behalf of the transit agency stock standard (i.e., where sixty percent 4a. Defining ‘‘End Product’’ Under a itself, which would be forced into of the subcomponents of a component, Shift and Non-Shift Approach reopening a bid or otherwise encounter by cost, must be domestic, but forty performance delays without a post- FTA’s initial NPRM sought comments percent may be foreign-sourced). To award waiver. on two alternative definitions of the address the concerns of these FTA does not agree with the term ‘‘end product.’’ The first proposed commenters, the SNPRM proposed to comments from the fourth commenter definition came from FTA’s current, treat rolling stock replacement parts that the status of other bidders should long-standing practice whereby the end under the simpler ‘‘manufactured be excluded from consideration. The product is the deliverable item specified products’’ standard in 49 CFR 661.5, Buy America status of other responsive by the grantee in the third party which requires that a component be bidders, including losing bidders, is contract. Under this ‘‘shifting’’ manufactured domestically, without the materially relevant, particularly where methodology, the same item could be an need to document the origin of each of the winning bidder is seeking to end-product, a component, or a its subcomponents. As FTA’s Buy substitute non-domestic materials for subcomponent, depending upon the America regulation currently states, a domestic ones. The intent of Buy deliverable specified in the third party component of a manufactured product America is to safeguard American jobs contract, with applicable Buy America ‘‘is considered of U.S. origin if it is by requiring that steel, iron, and requirements attaching based on an manufactured in the United States, manufactured goods used in an FTA- item’s characterization. Applying this regardless of the origin of its funded project are produced in the shifting approach, FTA’s first proposed subcomponents.’’ 49 CFR 661.5(d)(2). United States—not to protect a definition stated: ‘‘End product means The SNPRM’s proposal to apply the particular contractor or supplier against any item subject to 49 U.S.C. 5323(j) ‘‘manufactured product’’ standard to the vagaries of the marketplace. In that is to be acquired by a grantee, as replacement parts is very different from deciding whether to grant a post-award specified in the overall project the current regulation that applies the waiver, therefore, FTA will consider the contract.’’ rolling stock standard to such parts. status of other bidders or offerors who FTA’s second proposal was to base Under the current regulation, a are Buy America compliant and can the definition of ‘‘end product’’ on that component of rolling stock, in order to furnish domestic material or products found in the Federal Acquisition be Buy America-compliant, must consist on an FTA-funded project. Concluding Regulation (FAR) at 48 CFR part 25 of at least 60% domestic otherwise would violate the legislative implementing the Buy American Act, 41 subcomponents. A rolling stock intent of Buy America. U.S.C. 10a–10d. Under this definition, component, if purchased later as a With regard to the commenter’s end products do not shift and replacement part, shifts upwards to concern that a losing bidder offering components and subcomponents retain become an ‘‘end product’’ and its American-made products could hold the their designation. FTA’s second subcomponents shift to become purchaser economic hostage and charge proposed definition for this ‘‘non-shift ‘‘components’’ and must consist of extortionary rates, FTA acknowledges approach’’ stated: ‘‘End product means 100% domestic, even if the original that it has the authority to grant a cost- any article, material, supply, or system, subcomponent was part of the vehicle’s

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allowable 40% non-domestic content. pricing,’’ adding that permanently fixing present regulation, a bicycle rack is The SNPRM proposed that replacement the status of a part as components or treated as a ‘‘component’’ if specified in components would retain their sub-components for all future purposes a contract for the purchase of a new bus, characterization as ‘‘components’’ would allow agencies to procure proven but is treated as an ‘‘end product’’ if throughout the life of the vehicle and replacement parts without non- subsequently purchased as an their replacements would not shift productive recordkeeping The transit aftermarket accessory or as part of a upwards to become ‘‘end products.’’ In agency expressed similar concerns that vehicle rehabilitation or retrofit. FTA addition, replacement components maintaining records of rolling stock end believes that the same Buy America would be subject to the ‘‘manufactured products, components, and end rules should apply regardless of when products’’ standard with regard to the products throughout the service life of the bicycle rack is purchased, i.e., a origin of its subcomponents. the vehicle would have been an bicycle rack will be treated as a By applying the ‘‘manufactured ‘‘unbearable burden.’’ The fare component and must comply with the products’’ standard to replacement collection system manufacturer manufactured products standard. This components, suppliers would still be concurred without additional comment, approach will lead to consistency in the required to manufacture replacement while the rolling stock manufacturer manufacturing of components and will components in the United States, stressed that components ‘‘should greatly simplify the procurement thereby preserving a domestic always be manufactured in the U.S. process for transit agencies and their manufacturing base while at the same regardless of whether the component suppliers. time recognizing the global marketplace was purchased as part of an end product In the NPRM, FTA considered an with regard to the procurement of or separately as a service part for an end approach that would have permitted the subcomponents. In addition, applying product.’’ replacement of non-domestic the ‘‘manufactured products’’ test to the B. FTA Response components and subcomponents with acquisition of replacement components identical products of non-domestic Based on the comments received, FTA relieves manufacturers and buyers of the manufacture. But due to comments from is adopting the SNPRM’s non-shift burden of documenting country-of- transit agencies that maintaining approach. Under the current regulation, origin records for an endless number of country-of-origins records for every a procurement for a replacement part, possible subcomponents, so long as the component and subcomponent whether the part was previously component itself is manufactured in the throughout a vehicle’s useful service life classified as a component or a sub- United States. FTA believed the was too great of a recordkeeping burden, component, is treated as a procurement SNPRM’s approach provided limited FTA is not adopting this approach. relief from current practices and was not for an ‘‘end product.’’ Under the new FTA believes that the benefits of the likely to disrupt the supply industry. approach, procurements for replacement A more significant change in the parts, whether components or non-shift approach to the procurement SNPRM pertained to the replacement of subcomponents of the original end of replacement parts outweigh any subcomponents. Under the current product, would retain their potential impact on replacement parts regulation, if a purchaser replaces characterization and the requirements manufacturers. FTA finds it noteworthy rolling stock subcomponents, those applicable to manufactured products that despite publication of the SNPRM replacement parts also shift upwards to would apply. This new approach would and a request for data in the February become ‘‘end products’’ (i.e., the item apply consistently to the procurement of public meeting, FTA received no must be American-made). The SNPRM replacement parts for rolling stock as comments to the docket from domestic proposed that replacement parts would well as to manufactured products. suppliers of replacement be subject to the same Buy America This approach to replacement parts is subcomponents that quantified any requirements that applied to the original supported by the trade association’s adverse economic effects, particularly part—subcomponents would not shift comments that the SNPRM’s approach since the SNPRM would have subjected upwards to become ‘‘end products’’ but would ‘‘provide the market them to potential foreign competition. would instead remain ‘‘subcomponents’’ predictability the transit industry needs FTA believes that adopting the non- throughout the life of the vehicle. Albeit to maintain stability and reasonable shift approach will benefit transit such a rule might lead to an increase in pricing,’’ and that ‘‘fixing their status as agencies in their direct procurement of the level of foreign-sourced replacement components or sub-components for all replacement parts, and lead to parts, FTA believed that the benefits of future purposes will allow agencies to additional cost-savings to transit consistency, stability, and favorable procure replacement parts without non- agencies and component manufacturers price structures in the transit industry productive record keeping.’’ For rolling in the procurement of subcomponents. and would outweigh any disadvantages stock components, FTA recognizes that The non-shift approach will also to domestic suppliers. the illustrative list of ‘‘typical’’ rolling provide consistency and stability with stock components in Appendices B and regard to the identity of components A. Comments Received C to 49 CFR 661.11 will assist and subcomponents, eliminating the The four parties who submitted procurement officers in identifying distinctions between the procurement of comments on this issue represented a components. For manufactured rolling stock and manufactured product broad cross-section of docket products, the contract or the bid replacement parts, and different commenters—one of the nation’s largest proposal would govern the hierarchy of procurement standards for replacement public transit agencies, a manufacturer components and subcomponents. parts and aftermarket products. Transit of an integrated fare collection system, In addition, the classification of agencies will be able to procure a manufacturer of rolling stock, and a ‘‘components’’ and ‘‘subcomponents’’ replacement parts from the original part large industry trade association. All four would not only apply to the manufacturers, purchasing agents will endorsed FTA’s proposal. procurement of items purchased as part find it easier to determine the applicable The SNPRM, the trade association of the vehicle’s original equipment, but Buy America rules when attempting to noted, ‘‘will provide the market would apply consistently to the same procure replacement parts, and opening predictability the transit industry needs item if purchased as an aftermarket the market to foreign and domestic to maintain stability and reasonable accessory. To illustrate, under the sources will guarantee favorable price

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structures in the transit industry and A. Comments Received procured by a grantee as specified in the cost savings to the American taxpayer. Five commenters responded to FTA’s overall project contract. Furthermore, FTA believes that the fare collection 4b. ‘‘System’’ as an ‘‘End Product’’ proposal. Four were generally appreciative of FTA’s approach, while system at issue in its 2002 SAFETEA–LU requires that ‘‘the determination would have met the procurement of systems’’ be addressed one, a transit vehicle manufacturer, found the concept ‘‘confusing and SNPRM’s definition of ‘‘system:’’ the ‘‘to ensure that major system warranty clause referred to a single end procurements are not used to unnecessary,’’ and urged a more concise definition and a full listing of end product, i.e., an automated fare circumvent the Buy America collection system; the automated fare requirements.’’ The NPRM sought products. A large transit agency supported FTA’s definition, proposing collection system was the subject of a comment on whether FTA should single procurement whereby the continue its longstanding practice of that FTA add a ‘‘minimum set of components and interconnections’’ manufactured ‘‘end product’’ was including ‘‘systems’’ as definable end functionally different than that which products. Furthermore, FTA sought factor to the criteria. A large industry trade association, while appreciative of would have resulted from a mere comment on a proposed definition of assembly of elements or materials; and ‘‘system’’ which was based on the FTA’s efforts, commented that the most importantly, the individual parts ‘‘functional test’’ for interconnected SNPRM ‘‘fails to provide necessary performed on an integrated basis with systems from the Harmonized Tariff guidance to the industry’’ and stated other parts of the system. Schedule of the United States (HTSUS), that the list of characteristics should be 19 U.S.C. 1202, heading 8474, used in expanded, lest the absence of one Under FTA’s Buy America current customs law. The NPRM proposed to characteristic be seen as determinative. methodology, if a purported end define ‘‘system’’ as ‘‘a machine, product, The commenter added that the product is too large, i.e., composed of or device, or a combination of such definition should address what types of what FTA traditionally considers as equipment, consisting of individual systems would not be eligible for separate ‘‘end products’’ such as components, whether separate or consideration as end products. A structures, vehicles, fare collection interconnected by piping, transmission manufacturer of a fare collection system equipment, etc., FTA will break it down devices, electrical cables or circuitry, or responded to the trade association’s into separate end products. FTA’s by other devices, which are intended to comments, stating that the trade willingness to do this in previous contribute together to a clearly defined association’s members were unable to requests to evaluate the characterization function.’’ achieve consensus on this issue and that of a turnkey rail project as a ‘‘system’’ Although many commenters because the trade association was should allay the fears of commenters expressed concerns that manufacturers unable to propose clear product-specific that an end product system could be so could potentially abuse the definition of categories as an alternative definition to large, and incorporate so many different ‘‘system’’ to incorporate a large degree FTA’s approach, FTA should instead levels of equipment such as stations, of non-domestic subcomponents into a use principles in performing its track, vehicles, fare collection single ‘‘end product’’ procurement, a analysis. equipment, etc., that Buy America majority of commenters encouraged B. FTA Response requirements could be circumvented. FTA to continue its longstanding FTA remains aware that a single large- practice of including a ‘‘system’’ as a Based on the comments received and scale procurement could conceivably definable end product. Furthermore, on SAFETEA–LU’s statutory language contain multiple end products, each of FTA noted that SAFETEA–LU only and legislative history, FTA is retaining which must independently meet the required FTA to develop a rule to the SNPRM’s definition of a ‘‘system’’ ‘‘ensure that major system procurements and will add the term ‘‘system’’ to the requirements of Buy America. But at the are not used to circumvent the Buy definition of ‘‘end product.’’ FTA same time FTA also recognizes that America requirements,’’ and did not believes the definition proposed in the various elements may be integrated into expressly seek to prohibit the SNPRM and the new illustrative criteria a single system. FTA is aware of the designation of systems as end products. will protect against the bundling of developing trend towards systems Rather, SAFETEA–LU instructed FTA to unrelated independent products into a procurements and the potential develop a rule that would cure potential ‘‘super system’’ that would undermine circumvention of Buy America abuses, without eliminating system the principles of Buy America. Most requirements, and will therefore procurements or drastically changing importantly, as FTA explained in the exercise heightened scrutiny in this FTA’s long-standing Buy America SNPRM, FTA is willing to carefully area, using the new criteria. FTA notes, practices. review major system procurements to however, that the criteria are illustrative FTA received many comments determine whether an integrated system rather than determinative, and that offering alternatives to the NPRM’s actually exists, and, if so, which items lacking one of the criteria would not proposed definition of ‘‘system.’’ Some constitute the system. This review necessarily result in the automatic commenters suggested FTA should process will further serve to avoid the disqualification of a ‘‘system.’’ consider whether performance circumvention of Buy America 4c. Representative List of End Products warranties apply to an integrated requirements. system; whether products perform on an FTA believes a fare collection system, SAFETEA–LU directed FTA to integrated basis with other products in in toto, meets the definition of an ‘‘end develop a ‘‘representative list’’ of end a system, or are operated independently product.’’ FTA reached this conclusion products. FTA sought comment on a of associated products in the system; or in a 1994 and 2002 decision involving proposed list of representative end whether transit agencies routinely the Massachusetts Bay Transportation products in the first NPRM, and as FTA procure a product separately (other than Authority (MBTA), and a 1995 decision explained then, the proposed list was as replacement or spare parts). Based on involving the Tri-County Metropolitan not meant to be all-inclusive, instead these comments, FTA rewrote the District of Oregon. In these three describing general ‘‘representative’’ SNPRM’s definition of ‘‘system’’ to decisions FTA cited 49 CFR § 661.11(s) categories of end products consistent incorporate these criteria. in defining ‘‘end product’’ as any item with the legislation.

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A. Comments Received that is not meant to be all-inclusive and submitted lengthy comments to the FTA received five comments on this to rely upon basic governing principles SNPRM describing their opposition. issue. Of these, two commenters to address future deliberations. An These commenters pointed out that the concurred with FTA’s approach. One example of this practical approach are Dear Colleague letter has been commenter stated that FTA’s proposed the representative lists of typical bus successfully implemented for the past representative list was ‘‘too abbreviated and rail car components found in ten years, and that any changes could and inconsistent,’’ recommending that Appendices B and C to 49 CFR 661.11. create confusion for manufacturers and FTA issue a more extensive or Manufactured products not enumerated grantees. One commenter noted that the on those component lists can be Dear Colleague letter reflected extensive comprehensive list and subjecting that analyzed within the context of other input from industry participants. list for public comment before items on those lists, using governing Vehicle manufacturers stated that they publishing it as a Final Rule. Another principles. FTA’s representative list of had made long-term operational and commenter representing a coalition of ‘‘end products’’ is similarly reflective of investment decisions based on existing manufacturers provided a list of end the broad scope of transit procurements law and guidance, and changing policy products that it believed should be and new end products can be similarly would be ‘‘extremely onerous and added to the representative list, stating assessed. harmful to manufacturers that currently that products identified on the list With regard to the applicability of the comply with existing laws.’’ Another should retain their status as end term ‘‘mobile,’’ FTA intended for it to commenter warned that adoption of the products, even if incorporated into a apply to all portable or moveable lifts, SNPRM’s language would have new system. One commenter, an hoists, and elevators. FTA did not ‘‘unintended consequences’’ on an elevator manufacturer, sought intend that permanently affixed lifts, ‘‘already fragile bus industry.’’ clarification that the adjective ‘‘mobile’’ hoists, and elevators would be Finally, commenters pointed out that in the representative list of considered as ‘‘end products.’’ Rather, the Dear Colleague letter’s definition of manufactured products applied to lifts, they will continue to be considered ‘‘final assembly’’ had been hoists, and elevators that were movable components of the larger facility, which acknowledged and memorialized by and not part of a facility’s permanent itself could constitute the ‘‘end Congress in section 3035 of TEA–21, infrastructure. product.’’ and Congress did not indicate any B. FTA Response direction for FTA to alter the current 5. Definition of ‘‘Final Assembly’’ definition of final assembly. FTA agrees with the commenters who In the first NPRM, FTA sought recommended FTA implement a comment on its proposal to amend the B. FTA Response ‘‘representative’’ list of end products for definition of ‘‘final assembly’’ in 49 CFR FTA finds the commenters two reasons: First, SAFETEA–LU part 661 for rolling stock procurements persuasive. Not only does the Dear directed the Secretary to ‘‘develop a list by incorporating the minimum Colleague letter reflect widespread of representative items that are subject requirements for final assembly as industry understanding of the final to the Buy America requirements’’ outlined in FTA’s March 18, 1997, Dear assembly process, it is a long-standing (emphasis added). By use of the term Colleague letter, C–97–03, which precedent that reflects industry input ‘‘representative’’ rather than Congress implemented through section and consensus and has been recognized ‘‘comprehensive,’’ FTA believes that 3035 of the Transportation Equity Act by Congress as an acceptable standard. Congress did not intend that the list be for the 21st Century (TEA–21) (Pub. L. Therefore, FTA is withdrawing the exhaustive. Second, FTA agrees that it 105–178). proposed language in the SNPRM and would be unrealistic and unnecessary to Several commenters recommended will instead continue to implement the develop a comprehensive list and keep several changes to the NPRM’s proposed terms of the March 18, 1997, Dear it constantly updated as some definition, suggesting that it be made Colleague letter, with a few minor commenters suggested. consistent with the descriptions of additions to reflect industry practices FTA believes it is impractical to incorporation and final assembly for rail that have taken effect after the 1997 attempt to produce an exhaustive cars and buses in 49 CFR 661.11(b) and Dear Colleague letter was issued, such comprehensive list of every conceivable (c). FTA concurred with these as the construction of bus shells and the end product, component, and commenters, agreeing that the definition installation of locomotive engines in subcomponent in the transit industry. of final assembly should refer back to 49 passenger railcars. The comprehensive lists offered by CFR 661.11(b) and (c) for the bus and commenters to the NPRM and SNPRM, 6. Communication, Train Control, and rail car components that must be Traction Power Equipment which were often very lengthy, highly incorporated into the end product at the detailed, and seldom uniform, illustrate final assembly location. FTA sought comment on three the difficulty of creating such a list. One FTA also agreed with a commenter substantive proposals to the Buy commenter stated that the suggested who recommended that language from America requirements for rolling stock lists of end products were not based the March 18, 1997, Dear Colleague components in the NPRM. In the first of upon the development of reasonable letter regarding FTA determinations of these proposals, FTA sought comment governing principles, but rather, ‘‘by compliance be added to the ‘‘final on whether it should continue to find parochial interests that are focused assembly’’ provisions. that the items of communication literally on a product by product basis.’’ equipment listed in 49 CFR 661.11 That commenter recommended that A. Comments Received include wayside equipment, i.e., FTA design its regulations around Although two transit agencies communication equipment that is not in principles that can be fairly and concurred with FTA’s approach without or on a vehicle, but on the adjacent impartially applied on a consistent basis providing substantive comments, the tracks or right-of-way. FTA also sought in a technologically complex and proposal was opposed by five rolling comment on whether the items of train constantly evolving environment. stock manufacturers, a large industry control, communication, and traction FTA believes that a more practical trade association, a consortium of power equipment listed in 49 CFR approach is to issue a representative list suppliers, and a consultant, all of whom 661.11(t), (u), and (v) should be deleted

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and whether any new items should be states that ‘‘[t]he power or third rail is with respect to Buy America added to these lists to reflect new not considered traction power requirements. technology. Finally, FTA sought equipment and is thus subject to the comment on whether the term requirements of 49 U.S.C. 5323(j) and B. Executive Order 12866 and DOT ‘‘communication equipment’’ should be the requirements of 49 CFR 661.5.’’ Regulatory Policies and Procedures limited to equipment whose primary FTA believes that these This final rule is a nonsignificant function is communication ‘‘with or recommendations go beyond the scope regulatory action under section 3(f) of between people’’ or whether it should of the present rulemaking. Currently, all Executive Order 12866 and, therefore, be expanded to include a ‘‘machine-to- power or third rails, regardless of was not reviewed by the Office of machine’’ interface. whether made primarily from Management and Budget. This final rule Based on comments received in aluminum, steel, or some other material, response to the NPRM, FTA determined is excluded from the definition of is also nonsignificant under the that the rolling stock requirements for ‘‘traction power equipment’’ and instead Regulatory Policies and Procedures of communications equipment would is subject to 49 CFR 661.5. If the rail is the Department of Transportation (44 FR continue to apply to wayside made of steel or iron, the product must 11034, Feb. 26, 1979). This final rule equipment. One commenter comply with 49 CFR 661.5(c). If BPTS imposes no new compliance costs on recommended deleting several items third rail is not made primarily of steel, the regulated industry; it merely from the proposed lists of train control, it would be treated as a manufactured clarifies terms existing in the Buy communication, and traction power product under 49 CFR 661.5(d). In order America regulations and adds terms equipment, but several more to provide a competitive and level consistent with SAFETEA–LU. commenters suggested the addition of playing field, FTA is interpreting the C. Executive Order 13132 items to the lists, which was reflected in commenters’ recommendations as a the SNPRM. With regard to the request to classify power or third rails This final rule has been analyzed in expansion of the term ‘‘communication as traction power equipment, whether accordance with the principles and equipment’’ to include machine-to- made of steel, aluminum, or some other criteria contained in Executive Order machine interactions, FTA noted in the material. This would require a SNPRM that modern communication 13132 (‘‘Federalism’’). This final rule Congressional action to exclude steel does not include any regulation that has networks frequently support both and iron contact rail from the domestic capabilities (i.e., human to human substantial direct effects on the States, manufacturing requirements of 661.5(c), the relationship between the national interaction and machine-to-machine which is beyond FTA’s authority in this government and the States, or the interface) and it would be difficult in rulemaking. those situations to determine which distribution of power and components of the communication 7. Statutory Update responsibilities among the various equipment was supporting one purpose The SNPRM proposed to amend the levels of government. Therefore, the or the other. Moreover, FTA’s review of debarment and suspension provisions in consultation and funding requirements prior Buy America decisions involving 49 CFR 661.18 to incorporate a reference of Executive Order 13132 do not apply. communication equipment supported to SAFETEA–LU, replacing the existing D. Executive Order 13175 these conclusions and FTA declined to reference to the Intermodal Surface make such a distinction in the SNPRM. Transportation Efficient Act of 1991 This final rule has been analyzed in However, the SNPRM stated that FTA (ISTEA). accordance with the principles and will continue to carefully scrutinize, on criteria contained in Executive Order a case-by-case basis, whether technology A. Comments Received 13175 (‘‘Consultation and Coordination may properly be characterized as Commenters were unanimous in their with Indian Tribal Governments’’). ‘‘communication equipment’’ within the support of the amendment. meaning of the rolling stock provisions Because this final rule does not have of 49 U.S.C. 5323(j) and 49 CFR 661.11. B. FTA Response tribal implications and does not impose direct compliance costs, the funding FTA is adopting the amendment A. Comments Received and consultation requirements of without change. FTA is also amending Two of the three commenters to the the statutory references to section 165 of Executive Order 13175 do not apply. SNPRM concurred with FTA’s the Surface Transportation Assistance E. Regulatory Flexibility Act and approach. One commenter, a large Act of 1982 in 49 CFR 661.6 and 661.12 Executive Order 13272 transit agency, believed that further and replacing them with references to modification was necessary to reflect the current Buy America requirements The Regulatory Flexibility Act (5 current technology and practices— at 49 U.S.C. 5323(j). In addition, FTA is U.S.C. 601–611) requires each agency to namely, that propulsion systems and amending the title of 49 Part 661 to analyze regulations and proposals to cab display should be added to the list remove the reference to the Surface assess their impact on small businesses of traction power equipment. Transportation Assistance Act of 1982 and other small entities to determine B. FTA Response so that the title will simply read, ‘‘Buy whether the rule or proposal will have FTA notes that several commenters America Requirements.’’ a significant economic impact on a recommended that aluminum composite II. Regulatory Analyses and Notices substantial number of small entities. conducting rail, otherwise known as This final rule imposes no significant Bimetallic Power Transmission (BPTS) A. Statutory/Legal Authority for This new costs on small entities, and in fact, Equipment, which is a combination of Rulemaking is expected to reduce costs by an aluminum conductor and a stainless This final rule is authorized under eliminating specific recordkeeping steel abrasion-resistant cap, be added to SAFETEA–LU (Pub. L. 109–59), which burdens. Therefore, FTA certifies that the list of traction power equipment in amended Section 5323(j) and (m) of this proposal does not require further 49 CFR 661.11(v). However, FTA’s Title 49, United States Code and analysis under the Regulatory current regulation at 49 CFR 661.11(w) required FTA to revise its regulations Flexibility Act.

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F. Unfunded Mandates Reform Act of Authority: 49 U.S.C. 5323(j) (formerly sec. System means a machine, product, or 1995 165 of the Surface Transportation Assistance device, or a combination of such Act of 1982 (Pub. L. 97–424); as amended by This final rule does not propose equipment, consisting of individual sec. 337, Pub. L. 100–17; sec. 1048, Pub. L. components, whether separate or unfunded mandates under the 102–240; sec. 3020(b), Pub. L. 105–178; and Unfunded Mandates Reform Act of sec. 3023(i) and (k), Pub. L. 109–59); 49 CFR interconnected by piping, transmission 1995. If the proposals are adopted into 1.51. devices, electrical cables or circuitry, or a final rule, it will not result in costs of by other devices, which are intended to I 2. The heading for part 661 is revised $100 million or more (adjusted annually contribute together to a clearly defined to read as set forth above. for inflation), in the aggregate, to any of function. Factors to consider in the following: State, local, or Native § 661.1 [Amended]. determining whether a system constitutes an end product include: American tribal governments, or the I 3. Amend § 661.1 by removing private sector. Whether performance warranties apply ‘‘Federal Mass Transit Act of 1964, as to an integrated system (regardless of G. Paperwork Reduction Act amended’’ and adding in its place ‘‘49 whether components are separately This final rule proposes no new U.S.C. 5323(j)’’. warranteed); whether products perform information collection requirements. I 4. Revise § 661.3 to read as follows: on an integrated basis with other products in a system, or are operated § 661.3 Definitions. H. Regulation Identifier Number (RIN) independently of associated products in A regulation identifier number (RIN) As used in this part: the system; or whether transit agencies is assigned to each regulatory action Act means the Federal Public routinely procure a product separately listed in the Unified Agenda of Federal Transportation Law (49 U.S.C. Chapter (other than as replacement or spare Regulations. The Regulatory Information 53). parts). Administrator means the Service Center publishes the Unified United States means the several Administrator of FTA, or designee. Agenda in April and October of each States, the Commonwealth of Puerto Component means any article, year. The RIN number contained in the Rico, the District of Columbia, Guam, material, or supply, whether heading of this document may be used American Samoa, the U.S. Virgin manufactured or unmanufactured, that to cross-reference this action with the Islands, and the Commonwealth of the is directly incorporated into the end Unified Agenda. Northern Mariana Islands. product at the final assembly location. I. Environmental Assessment Contractor means a party to a third Appendix A to § 661.3—End Products The National Environmental Policy party contract other than the grantee. The following is a list of representative end End product means any vehicle, Act of 1969 (NEPA), as amended (42 products that are subject to the requirements structure, product, article, material, U.S.C. 4321–4347), requires Federal of Buy America. This list is representative, supply, or system, which directly agencies to consider the consequences not exhaustive. incorporates constituent components at (1) Rolling stock end products: All of major Federal actions and prepare a the final assembly location, that is individual items identified as rolling stock in detailed statement on actions acquired for public use under a § 661.3 (e.g., buses, vans, cars, railcars, significantly affecting the quality of the federally-funded third-party contract, locomotives, trolley cars and buses, ferry human environment. There are no and which is ready to provide its boats, as well as vehicles used for support significant environmental impacts services); train control, communication, and intended end function or use without associated with this final rule. traction power equipment that meets the any further manufacturing or assembly definition of end product at § 661.3 (e.g., a J. Privacy Act change(s). A list of representative end communication or traction power system). Anyone is able to search the products is included at Appendix A to (2) Steel and iron end products: Items electronic form for all comments this section. made primarily of steel or iron such as received into any of our dockets by the FTA means the Federal Transit structures, bridges, and track work, including running rail, contact rail, and turnouts. name of the individual submitting the Administration. Grantee means any entity that is a (3) Manufactured end products: comments (or signing the comment, if Infrastructure projects not made primarily of submitted on behalf of an association, recipient of FTA funds. Manufactured product means an item steel or iron, including structures (terminals, business, labor union, etc.). You may produced as a result of the depots, garages, and bus shelters), ties and review DOT’s complete Privacy Act ballast; contact rail not made primarily of manufacturing process. Statement in the Federal Register steel or iron; fare collection systems; Manufacturing process means the published on April 11, 2000 (Volume computers; information systems; security application of processes to alter the 65, Number 70; Pages 19477–78) or you systems; data processing systems; and mobile form or function of materials or of may visit http://dms.dot.gov. lifts, hoists, and elevators. elements of the product in a manner List of Subjects in 49 CFR Part 661 adding value and transforming those § 661.6 [Amended] I Grant programs—transportation, materials or elements so that they 5. Amend § 661.6 as follows: I Public transportation, Reporting and represent a new end product a. Remove ‘‘Certificate of Compliance recordkeeping requirements. functionally different from that which With Section 165(a)’’ and add in its place ‘‘Certificate of Compliance with I would result from mere assembly of the Accordingly, for the reasons described elements or materials. Buy America Requirements’’ and in the preamble, part 661 of the Code of Negotiated procurement means a remove ‘‘section 165(a) of the Surface Federal Regulations is amended as contract awarded using other than Transportation Assistance Act of 1982, follows: sealed bidding procedures. as amended’’ and add in its place ‘‘49 PART 661—BUY AMERICA Rolling stock means transit vehicles U.S.C. 5323(j)(1)’’. I REQUIREMENTS such as buses, vans, cars, railcars, b. Remove ‘‘Certificate for Non- locomotives, trolley cars and buses, and Compliance with Section 165(a)’’ and I 1. The authority citation for part 661 ferry boats, as well as vehicles used for add in its place ‘‘Certificate of Non- is amended to read as follows: support services. Compliance with Buy America

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Requirements’’, remove ‘‘section 165(a) availability waiver only if the grantee (21) Communications Control Units; of the Surface Transportation Assistance provides sufficient evidence that the (22) Communication Control Heads; Act of 1982, as amended’’ and add in its original certification was made in good (23) Wireless Intercar Transceivers; place ‘‘49 U.S.C. 5323(j)’’, and remove faith and that the item to be procured (24) Multiplexers; ‘‘section 165(b)(2) or (b)(4) of the cannot now be obtained domestically (25) SCADA Systems; Surface Transportation Assistance Act due to commercial impossibility or (26) LED Arrays; of 1982’’ and add in its place ‘‘49 U.S.C. impracticability. In determining (27) Screen Displays such as LEDs 5323(j)(2)’’. whether the conditions exist to grant a and LCDs for communication systems; I 6. Amend § 661.7 as follows: post-award non-availability waiver, the (28) Fiber-optic transmission I a. In paragraph (a), remove ‘‘Section Administrator will consider all equipment; 165(b) of the Act’’ and add in its place appropriate factors on a case-by-case (29) Fiber-optic transmission ‘‘Section 5323(j)(2) of Title 49 United basis. equipment; States Code’’ and remove ‘‘section * * * * * (30) Frame or cell based multiplexing 165(a)’’ and add in its place ‘‘49 U.S.C. equipment; 13) Communication system 5323(j)(1)’’. Appendix A to § 661.7—General network elements. I b. Revise paragraph (b); Waivers (v) * * * I c. Amend paragraph (c) by removing * * * * * (28) Propulsion Control Systems; ‘‘section 165(b)(2) of the Act’’ and (b) Under the provisions of § 661.7 (b) and (29) Surge Arrestors; adding in its place ‘‘49 U.S.C. (c) of this part, a general public interest (30) Protective Relaying. 5323(j)(2)’’ and removing ‘‘section waiver from the Buy America requirements * * * * * 165(a)’’ and adding in its place ‘‘49 applies to microprocessors, computers, U.S.C. 5323(j)’’; microcomputers, or software, or other such Appendix D to § 661.11—Minimum I d. Add a new paragraph (c)(3); devices, which are used solely for the Requirements for Final Assembly I e. Amend paragraph (e) by removing purpose of processing or storing data. This general waiver does not extend to a product (a) Rail Cars: In the case of the manufacture ‘‘section 165(b) of the Act’’ and adding or device which merely contains a of a new, remanufactured, or overhauled rail in its place ‘‘49 U.S.C. 5323(j)(2)’’; microprocessor or microcomputer and is not car, final assembly would typically include, I f. Amend paragraph (f) by removing used solely for the purpose of processing or as a minimum, installation and ‘‘section 165(b)(3) of the Act’’ and storing data. interconnection of the typical Rail Car Components listed in § 661.11, Appendix C, adding in its place ‘‘49 U.S.C. * * * * * 5323(j)(2)(C)’’; and including but not limited to the following I I g. Amend Appendix A to § 661.7 by 7. Amend § 661.9(a) by removing items: car bodies or shells, chassis, carbody removing paragraphs (b) and (c) and ‘‘section 165(b)(3) of the Act’’ and wiring, car-borne power plants or power adding new paragraph (b). ‘‘section 165(b)(3)’’ and adding in their pick-up equipment, energy management and storage devices, articulation equipment, The revisions and addition read as place ‘‘49 U.S.C. 5323(j)(2)(C)’’. I propulsion control equipment, propulsion follows: 8. Amend § 661.11 as follows: cooling equipment, friction brake equipment, I a. Remove and reserve paragraph (s). § 661.7 Waivers. energy sources for auxiliary equipment and I b. Add paragraphs (t)(14) through controls, heating and air conditioning * * * * * (t)(22), (u)(18) through (u)(30), and equipment, interior and exterior lighting (b) Under the provision of 49 U.S.C. (v)(28) through (30); equipment, coupler equipment and coupler 5323(j)(2)(A), the Administrator may I c. Amend Appendix B by adding ‘‘Car control system, communications equipment, waive the general requirements of 49 body shells’’ before ‘‘Engines’’; pneumatic systems, electrical systems, door U.S.C. 5323(j)(1) if the Administrator I d. Amend Appendix C by adding and door control systems, passenger seats, finds that their application would be ‘‘engines’’ after ‘‘Car shells’’ and remove passenger interiors, cab interiors, destination inconsistent with the public interest. In ‘‘doors, door actuators, and controls,’’ signs, wheelchair lifts (or other equipment determining whether the conditions required to make the vehicle accessible to and add in its place ‘‘doors, door persons with disabilities), motors, wheels, exist to grant this public interest waiver, actuators and controls, wheelchair lifts axles, gear boxes or integrated motor/gear the Administrator will consider all and ramps to make the vehicle units, suspensions, and truck frames. Final appropriate factors on a case-by-case accessible to persons with disabilities,’’; Assembly activities shall also include the basis, unless a general exception is and inspection and verification of all installation specifically set out in this part. When I e. Add a new Appendix D. and interconnection work; and the in-plant granting a public interest waiver, the The additions read as follows: testing of the rail car to verify all functions. Administrator shall issue a detailed In the case of articulated vehicles, the written statement justifying why the § 661.11 Rolling stock procurements. interconnection of the car bodies or shells waiver is in the public interest. The * * * * * shall be included as work to be performed by (t) * * * the manufacturer as part of vehicle delivery. Administrator shall publish this (b) Buses: In the case of a new, justification in the Federal Register, (14) Cab Signaling; remanufactured, or overhauled bus, final providing the public with a reasonable (15) ATO Equipment; assembly would typically include, at a time for notice and comment of not (16) ATP Equipment; minimum, the installation and more than seven calendar days. (17) Wayside Transponders; interconnection of the typical Bus (c) * * * (18) Trip Stop Equipment; Components listed in § 661.11, Appendix B, (3) After contract award, the (19) Wayside Magnets; including but not limited to the following Administrator may grant a non- (20) Speed Measuring Devices; items: car bodies or shells, the engine and availability waiver under this (21) Car Axle Counters; transmission (drive train), axles, energy paragraph, in any case in which a (22) Communication Based Train management and storage devices, articulation equipment, propulsion control system, bidder or offeror originally certified Control (CBTC). chassis, and wheels, cooling system, and compliance with the Buy America (u) * * * braking systems; the installation and requirements in good faith, but can no (18) Antennas; interconnection of the heating and air longer comply with its certification. The (19) Wireless Telemetry Equipment; conditioning equipment; the installation of Administrator will grant a non- (20) Passenger Information Displays; pneumatic system and the electrical system,

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door systems, passenger seats, passenger grab § 661.12 [Amended] Assistance Act of 1982, as amended’’ rails, destination signs, wheelchair lifts or and add in its place ‘‘49 U.S.C. 5323(j)’’; I 9. Amend § 661.12 as follows: ramps and other equipment required to make and remove ‘‘section 165(b)(2) or (b)(4) I the vehicle accessible to persons with a. Remove ‘‘Certificate of Compliance of the Surface Transportation Assistance disabilities, and road testing. Final Assembly With Section 165(b)(3)’’ and add in its Act of 1982’’ and add in its place ‘‘49 activities shall also include final inspection, place ‘‘Certificate of Compliance with U.S.C. 5323(j)(2)(C)’’. repairs and preparation of the vehicles for Buy America Rolling Stock delivery. In the case of articulated vehicles, Requirements’’ and remove ‘‘section § 661.18 [Amended] the interconnection of the car bodies or shells 165(b)(3) of the Surface Transportation I 10. Amend the introductory text by shall be included as work to be performed by Assistance Act of 1982, as amended’’ the manufacturer as part of vehicle delivery. removing ‘‘the Intermodal Surface and add in its place ‘‘49 U.S.C. 5323(j)’’ Transportation Efficiency Act of 1991’’ (c) If a manufacturer’s final assembly and processes do not include all the activities and adding in its place ‘‘the Federal I that are typically considered the minimum b. Remove ‘‘Certificate for Non- Public Transportation Act of 2005’’. requirements, it can request a Federal Transit Compliance with Section 165(b)(3)’’ and James S. Simpson, Administration (FTA) determination of add in its place ‘‘Certificate of Non- compliance. FTA will review these requests Compliance with Buy America Rolling Administrator. on a case-by-case basis to determine Stock Requirements’’; remove ‘‘section [FR Doc. E7–18355 Filed 9–19–07; 8:45 am] compliance with Buy America. 165(b)(3) of the Surface Transportation BILLING CODE 4910–57–P

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