90 FR 117 pgs. 26409-26411 - Notice of Final Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes
Type: NOTICEVolume: 90Number: 117Pages: 26409 - 26411
Pages: 26409, 26410, 26411Docket number: [Docket No. FRA-2024-0122]
FR document: [FR Doc. 2025-11282 Filed 6-18-25; 8:45 am]
Agency: Transportation Department
Sub Agency: Federal Railroad Administration
Official PDF Version: PDF Version
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2024-0122]
Notice of Final Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes
AGENCY:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
ACTION:
Notice.
SUMMARY:
The Federal Railroad Administration (FRA) is issuing a waiver of its Buy America requirements to the Alabama State Port Authority (ASPA) for two rubber-tired gantry cranes for use in the Rail Expansion, Rehabilitation, and Modernization Project-Montgomery Intermodal Container Transfer Facility (Project). The Project received funds under the Fiscal Year 2022 Consolidated Rail Infrastructure and Safety Improvements (CRISI) program; therefore, FRA's Buy America requirements apply to the Project. The final waiver will apply to two rubber-tired gantry cranes based on the domestic nonavailability of the cranes. The final waiver will not apply to any construction materials, and therefore, FRA is not waiving any applicable requirements under the Build America, Buy America Act (BABA). A substantively identical Notice was placed on public inspection on January 21, 2025, but withdrawn before publication.
DATES:
This waiver is effective June 25, 2025.
ADDRESSES:
Please submit all comments electronically to the Federal eRulemaking Portal. Go to https://www.regulations.gov and follow the instructions for submitting comments.
Instructions: All submissions must refer to the Federal Railroad Administration and the docket number in this notice FRA-2024-0122. Note that all submissions received, including any personal information provided, will be posted without change and will be available to the public on https://www.regulations.gov. You may review DOT's complete Privacy Act Statement in the Federal Register published April 11, 2000 (65 FR 19477), or at https://www.transportation.gov/privacy.
FOR FURTHER INFORMATION CONTACT:
For questions about this notice, please contact Shreyas Bhatnagar, Regional Supervisor, Office of Regional Outreach & Project Delivery-Southcentral Region, Office of Railroad Development, FRA, telephone: (202) 617-0212, email: Shreyas.Bhatnagar@dot.gov. For legal questions, please contact Thomas Lis, Attorney-Advisor, Office of the Chief Counsel, FRA, telephone: (847) 921-7344, email: Thomas.Lis@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Project History and Background
[top] On March 15, 2022, ASPA received $67,300,000 for the Project as directed by H.R. 2471, Div. L, section 417, Joint Explanatory Statement, page 132, under FRA's CRISI program. The Project is a planned intermodal container transfer
On November 19, 2024, FRA published a proposed waiver for the Project based on the domestic nonavailability of the two rubber-tired gantry cranes, which was made available for a 15-day public comment period. FRA received one unique comment on the proposed waiver, which is discussed below. In addition, FRA consulted with the National Institute of Standards and Technology Manufacturing Extension Partnership (NIST-MEP) through its supplier scouting program to research whether any domestic manufacturers produce the identified components.
This notice summarizes FRA's Buy America requirements, ASPA's request for a waiver, and FRA's final waiver.
II. FRA's Buy America Requirements and Policy
Projects that receive funding under FRA's CRISI Program are subject to FRA's Buy America requirements. FRA's Buy America requirements include both: (i) FRA's statutory requirements for steel, iron, and manufactured goods at 49 U.S.C. 22905(a); and (ii) requirements under BABA and related guidance at 2 CFR 184.6 for construction materials. This means that FRA can fund a project "only if the steel, iron, and manufactured goods used in the project are produced in the United States." 49 U.S.C. 22905(a). In addition, FRA-funded projects must also comply with the relevant provisions of BABA, including the requirement that all construction materials used in the project must also be produced in the United States. Public Law 117-58, 70914(a); 2 CFR 184.6. FRA is not proposing to waive the applicable BABA requirements for construction materials used in the Project, and therefore this final waiver will not apply to any construction materials used in the Project.
FRA strictly enforces compliance with its Buy America requirements to ensure that FRA-funded projects maximize the use of materials produced in the United States. FRA expects recipients to work with suppliers to conduct thorough market research and adequately consider, where appropriate, qualifying alternate items, products, or materials. Compliance with FRA's Buy America requirement supports domestic industry and well-paying jobs.
III. FRA's Authority To Waive Buy America Requirements
FRA can waive its Buy America requirements in limited circumstances. FRA will grant a waiver request that is consistent with the statutory criteria for a waiver and where a project sponsor has adequately justified the need for a waiver.
FRA may waive its Buy America requirements if FRA determines that: (i) applying the Buy America requirements would be inconsistent with the public interest; (ii) the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; (iii) rolling stock or power train equipment cannot be bought and delivered in the United States within a reasonable time; or (iv) including domestic material will increase the cost of the overall project by more than 25 percent. 49 U.S.C. 22905(a)(2); see also Public Law 117-58, section 70914(b) (prescribing similar statutory conditions for waivers); and 2 CFR 184.7 (doing the same).
Specifically, when determining whether the steel, iron and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality pursuant to 49 U.S.C. 22905(a)(2)(B), FRA considers whether the recipient has used appropriate due diligence, such as market research or by soliciting proposals through an open procurement process, to identify domestic products or domestically available alternative products that meet the recipient's specifications. A comparable product that performs a similar function is not necessarily a domestic alternative; the product must also meet the recipient's specific requirements. FRA's statutory requirements do not require recipients to change product specifications in order to utilize domestic products that do not meet the recipient's original specifications. If there are no domestically produced products that also meet the recipient's specifications, and the recipient has exercised appropriate diligence, FRA may waive its Buy America requirements based on nonavailability, consistent with 49 U.S.C. 22905(a)(2)(B).
IV. Summary of Products Requiring Waiver
ASPA requested a waiver for two (2) rubber-tired gantry cranes, including spreaders. The total value of the non-compliant materials is approximately 7-8 percent of the total project cost.
V. ASPA's Request for Waiver
In its request for a waiver, ASPA described its efforts to identify domestic sources and consider the use of alternative products. ASPA conducted a market research study to determine the availability of rubber-tired gantry cranes from domestic manufacturers and to get ahead of long-lead times in manufacturing. The study found one U.S.-based manufacturer who had made similar products; however, this manufacturer had not made a product that met the technical specifications ASPA developed for the Project. ASPA issued a request for proposals (RFP) in late 2023 based on its technical specifications. ASPA contacted six manufacturers, including the sole U.S.-based manufacturer identified in ASPA's market research. Of the six manufacturers contacted, five acknowledged receipt and three submitted proposals. However, only non-domestic manufacturers whose products would not be complaint with FRA's Buy America requirements submitted proposals. ASPA did not receive a bid from any U.S.-based manufacturers.
[top] Upon receipt and confirmation of the three responsive bids, ASPA conducted an evaluation of bids using price, performance, compliance with ASPA's technical specifications, references and quality track record of similar equipment delivered and operating in the U.S., schedule, geographic location of parts and service, alternatives offered and substitutions, and warranties. ASPA used a point system to evaluate and rank the proposals. Based on its review, ASPA has selected a preferred manufacturer for the cranes, which ASPA indicated will be assembled domestically, but will not be manufactured in the U.S. FRA was not involved in ASPA's procurement process. FRA's role is limited to reviewing ASPA's request for a waiver, consistent with 49 U.S.C. 22905(a)(2).
Due to the lack of responsive bids from domestic manufacturers and based on its market research, ASPA has concluded that cranes that meet FRA's Buy America requirements are not domestically available. In the absence of a waiver, ASPA asserts that it would not be able to deliver the Project, as planned operations are not possible without two rubber-tired gantry cranes meeting ASPA's technical specifications.
VI. Discussion of Public Comments
Comments on the waiver were due December 4, 2024. As of December 6, 2024, FRA receive one public comment to the docket from the Transportation Trades Department (TTD), AFL-CIO. Additionally, FRA received an inquiry outside the public comment process from a U.S.-based manufacturer that represented it does produce BABA-compliant gantry cranes. FRA's Buy America requirements are distinct from BABA's and a product that meets BABA's requirements may not necessarily meet FRA's statutory requirements. FRA responded to the inquiry with additional clarification and did not receive any further response.
TTD's comment did not support the issuance of the waiver. TTD expressed concerns that the waiver would allow for further diversion of federal funds away from domestic manufacturers and would create opportunities for future automation activities and the reduction of workers at ports. Additionally, TTD, AFL-CIO discussed the importance of limiting waivers to maximize domestic manufacturing.
FRA Response: FRA appreciates the comment and the importance of ensuring that the federal government minimizes the impact on domestic manufacturing through the issuance of waivers. FRA notes that the ASPA engaged with domestic manufacturers and made a reasonable effort to ensure that the waiver included only products that could not be manufactured domestically. FRA also notes that this waiver is non-precedential, does not apply to other FRA recipients or projects, and will expire upon the end of the period of performance of the award. In addition, the waiver will facilitate delivery of the Montgomery Intermodal Container Transfer Facility (ICTF) for the Port of Mobile in Montgomery, Alabama, which will promote American jobs by supporting the transportation needs of Central Alabama's growing manufacturing, agricultural, and retail industries. The ICTF will serve international traffic that passes through the Port of Mobile. The primary function and purpose of the facility will be to transfer containers between trucks, container stacks, and trains for existing and future industries in Montgomery and the surrounding area.
VII. NIST-MEP Supplier Scouting Results
Consistent with section 70916(c) of BABA, FRA requested that ASPA engage with the NIST-MEP through the NIST-MEP's supplier scouting program. The NIST-MEP supplier scouting opportunity allows agencies, manufacturers, and project sponsors to identify potential manufacturers from across the Nation to assist in market research on domestic availability. ASPA was not able to identify a domestic manufacturer for the components listed in the proposed waiver through the NIST-MEP supplier scouting program. This further supports FRA's conclusion that the components listed in the proposed waiver are not produced in the United States.
VIII. Findings and Final Waiver
FRA has determined that the two rubber-tired gantry cranes, including spreaders, that meet ASPA's technical specifications are not produced in the United States in a sufficient and reasonably available amount or satisfactory quality, consistent with 49 U.S.C. 22905(a)(2)(B). FRA finds ASPA has conducted appropriate due diligence through market research and an open procurement process to identify potential domestic suppliers for the products. ASPA's efforts included a market research study that identified one potential supplier; however, ASPA did not receive any responses to its RFP from domestic suppliers. Based on its review of the waiver request and ASPA's market research, FRA is waiving its Buy America requirements for the two rubber-tired gantry cranes, as requested by ASPA. FRA is not waiving any requirements under BABA, as the final waiver does not apply to construction materials used in the Project.
The final waiver will apply only to products listed above for use in the Project, as described in the grant agreement between FRA and ASPA. The final waiver will not apply to other FRA recipients or to other grants that might be made to ASPA for other projects. The final waiver will expire upon the end of the period of performance and closeout of the grant agreement for the project, estimated to be April 30, 2028.
Issued in Washington DC.
Robert Andrew Feeley,
Acting Administrator.
[FR Doc. 2025-11282 Filed 6-18-25; 8:45 am]
BILLING CODE 4910-06-P