Dear Ms. Johns:
This letter responds to your correspondence of August 12, 2002, and to phone conversations with members of my staff, in which you request clarification of the Buy America regulations as they apply to certain items of special trackwork, namely U-69 guardrail and manganese steel frogs, for use in the Metrolink Commuter Rail System. In response to inquiries from vendors, you ask that FTA issue guidelines on the appropriate Buy America requirements for procuring these items.
As specified in contract documents submitted to FTA, the end product of this procurement are railroad turnouts, which are special sections of track used in switching trains. Guardrail and frogs are each components of this end product. As shown in the technical specifications and the drawings, U-69 guardrail is made of high-strength steel and is attached adjacent to the running rail by a series of plates and braces.
Frogs are steel castings connecting sections of running rail, which permit the switching of rail cars from one track to another. According to the technical specifications, these are "Railbound Manganese Steel Heavy Wall Frogs." Manganese steel is an alloy containing trace amounts of manganese, which provides strengthening characteristics to the steel.
Applicable Law and Policy
The regulation states that "[a]ll steel and iron manufacturing processes must take place in the United States. . ." 49 CFR 661.5(b). This requirement applies 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, running rail and contact rail." 49 CFR 661.5(c)(emphasis added).
It is clear that in building a rail line, the guardrail and frogs, and the steel of which they are made, must be of U.S. origin as required by 49 CFR 661.5(b) and (c). Although the frogs are cast from an alloy with trace amounts of manganese, the material is still primarily steel and thus governed by the steel requirements of the Buy America provisions.
The raw manganese used in the steel alloy may be of foreign origin. Under 25 CFR 104, which is a Federal Acquisition Regulation (FAR) list of non-available articles under the Buy American Act, pure manganese is considered to be a non-available item. Moreover, 49 CFR 661.5(b) excepts "metallurgical processes involving refinement of steel additives" from the requirement of U.S. manufacture. Reading these regulations together and applying them to the facts of this case, pure manganese may be foreign sourced and even refined overseas. But if manganese is used as an additive to an item which is primarily steel, such as frogs, the steel must be manufactured in the U.S.
If you have any questions, please contact Joe Pixley at (202) 366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel