Notice2024-26877
Notice of Proposed Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes
Primary source
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Published
November 19, 2024
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
The Federal Railroad Administration (FRA) is seeking comments on whether to grant a waiver of its Buy America requirements to the Alabama State Port Authority (ASPA) for two rubber-tired gantry cranes, which are not produced in the United States, 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 proposed waiver would apply to two rubber-tired gantry cranes based on the domestic nonavailability of the cranes. The proposed waiver would not apply to any construction materials, and therefore, FRA is not waiving any applicable requirements under the Build America, Buy America Act (BABA).
Full Text
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<title>Federal Register, Volume 89 Issue 223 (Tuesday, November 19, 2024)</title>
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[Federal Register Volume 89, Number 223 (Tuesday, November 19, 2024)]
[Notices]
[Pages 91481-91482]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-26877]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[FRA-2024-0122]
Notice of Proposed 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; request for comment.
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SUMMARY: The Federal Railroad Administration (FRA) is seeking comments
on whether to grant a waiver of its Buy America requirements to the
Alabama State Port Authority (ASPA) for two rubber-tired gantry cranes,
which are not produced in the United States, 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 proposed waiver would apply to
two rubber-tired gantry cranes based on the domestic nonavailability of
the cranes. The proposed waiver would not apply to any construction
materials, and therefore, FRA is not waiving any applicable
requirements under the Build America, Buy America Act (BABA).
DATES: Comments must be received by December 4, 2024.
ADDRESSES: Please submit all comments electronically to the Federal
eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may review DOT's complete
Privacy Act Statement in the Federal Register published April 11, 2000
(65 FR 19477), or at <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
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
<a href="/cdn-cgi/l/email-protection#c192a9b3a4b8a0b2ef83a9a0b5afa0a6a0b381a5aeb5efa6aeb7"><span class="__cf_email__" data-cfemail="57043f25322e362479153f362339363036251733382379303821">[email protected]</span></a>. For legal questions, please contact Thomas
Lis, Attorney-Advisor, Office of the Chief Counsel, FRA, telephone:
(847) 921-7344, email <a href="/cdn-cgi/l/email-protection#a3f7cbcccec2d08defcad0e3c7ccd78dc4ccd5"><span class="__cf_email__" data-cfemail="6135090e0c00124f2d081221050e154f060e17">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Project History and Background
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 facility located adjacent to the
main CSX rail line between Montgomery and Mobile, Alabama. The Project
will consist of an approximately 15,000-foot side-track, two 3,500-foot
process tracks, and one 3,500-foot support track located under two
rubber-tired gantry cranes, a container storage yard, and associated
buildings and features required to support the operation. The Project
will provide an alternate shipping option for existing businesses
between the Port of Mobile and central Alabama, reduce container
storage congestion at the port, and decrease truck traffic on
Interstate 65. On June 27, 2023, ASPA requested a waiver of FRA's Buy
America requirements for two rubber-tired gantry cranes, which ASPA
determined are necessary for the Project. Following its initial
request, ASPA further advanced its procurement process. ASPA revised
its request on March 6, 2024, which included additional information
from ASPA's procurement process.
This notice summarizes FRA's Buy America requirements, ASPA's
request for a waiver, and FRA's proposed 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). The FRA requirements are more restrictive
than what is required under BABA. 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. Pub. L. 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
proposed waiver would 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
There are limited circumstances in which FRA can waive its Buy
America requirements under section 22905(a) and BABA. 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:
applying the Buy America requirements would be inconsistent with the
public interest; 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; rolling stock or power train
equipment cannot be bought and delivered in the United States within a
reasonable time; or 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, sec. 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
[[Page 91482]]
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).
If FRA determines a waiver is appropriate, FRA will provide notice
and seek comment from the public in accordance with the requirements of
both section 22905(a) and BABA, if applicable. In addition, FRA will
consult with the National Institute of Standards and Technology's
Manufacturing Extension Partnership before granting a waiver,
consistent with section 70916 of BABA. Unless otherwise specified,
waiver decisions are non-precedential and are only applicable to the
entities and products for the specific project identified in the final
decision.
IV. Summary of Products Requiring Waiver
ASPA requests a waiver for two (2) rubber-tired gantry cranes,
including spreaders. The total value of the non-compliant materials is
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 Buy
America requirements submitted proposals; the sole U.S.-based
manufacturer declined to submit a proposal, with no reasons given in
their email response.
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 crane, which ASPA indicated will be
assembled domestically, but will not be manufactured in the US. 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. Findings and Proposed Waiver
FRA has preliminarily 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 that
ultimately did not respond to ASPA's RFP for the Project. Based on its
review of the waiver request and ASPA's market research, FRA proposes
to waive its Buy America requirements for the products listed in
section IV of this notice. FRA is not proposing to waive any
requirements under BABA, as the proposed waiver does not apply to
construction materials used in the Project.
The proposed waiver would apply only to products listed above for
use in the Project, as described in the grant agreement between FRA and
ASPA. The proposed waiver would not apply to other FRA recipients or to
other grants that might be made to ASPA for other projects. The
proposed 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.
VII. Request for Comment
FRA will consider comments received during the 15-day comment
period, consistent with BABA and 2 CFR 184.7, FRA may consider comments
received after this period to the extent practicable. Consistent with
49 U.S.C. 22905(a)(4), if FRA determines it is necessary to waive its
Buy America requirements, FRA will publish its decision in the Federal
Register and provide an opportunity for public comment on such finding
for a reasonable period of time not to exceed 15 days. After such
period, FRA's decision will be effective.
Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2024-26877 Filed 11-18-24; 8:45 am]
BILLING CODE 4910-06-P
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