Notice of Proposed Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes, 91481-91482 [2024-26877]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 223 (Tuesday, November 19, 2024)]
[Notices]
[Pages 91481-91482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 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 
[email protected]. For legal questions, please contact Thomas 
Lis, Attorney-Advisor, Office of the Chief Counsel, FRA, telephone: 
(847) 921-7344, email [email protected].

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

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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