Notice2025-11282
Notice of Final Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes
Primary source
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Published
June 20, 2025
Effective
June 25, 2025
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
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 A substantively identical Notice was placed on public inspection on January 21, 2025, but withdrawn before publication.
Full Text
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<title>Federal Register, Volume 90 Issue 117 (Friday, June 20, 2025)</title>
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[Federal Register Volume 90, Number 117 (Friday, June 20, 2025)]
[Notices]
[Pages 26409-26411]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11282]
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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.
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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 <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#92c1fae0f7ebf3e1bcd0faf3e6fcf3f5f3e0d2f6fde6bcf5fde4"><span class="__cf_email__" data-cfemail="30635842554951431e725851445e5157514270545f441e575f46">[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#5f0b3730323e2c7113362c1f3b302b71383029"><span class="__cf_email__" data-cfemail="aefac6c1c3cfdd80e2c7ddeecac1da80c9c1d8">[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
[[Page 26410]]
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.
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.
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).
[[Page 26411]]
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
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</html>Indexed from Federal Register on June 20, 2025.
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