Notice of Final Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes

<NOTICE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Railroad Administration</SUBAGY> <DEPDOC>[Docket No. FRA-2024-0122]</DEPDOC> <SUBJECT>Notice of Final Nonavailability Waiver for the Alabama State Port Authority To Purchase Two Rubber-Tired Gantry Cranes</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Railroad Administration (FRA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Notice. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 A substantively identical Notice was placed on public inspection on January 21, 2025, but withdrawn before publication. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This waiver is effective June 25, 2025. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> Please submit all comments electronically to the Federal eRulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and follow the instructions for submitting comments. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov.</E> You may review DOT's complete Privacy Act Statement in the <E T="04">Federal Register</E> published April 11, 2000 (65 FR 19477), or at <E T="03">https://www.transportation.gov/privacy.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">Shreyas.Bhatnagar@dot.gov.</E> For legal questions, please contact Thomas Lis, Attorney-Advisor, Office of the Chief Counsel, FRA, telephone: (847) 921-7344, email: <E T="03">Thomas.Lis@dot.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Project History and Background</HD> 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. 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. <HD SOURCE="HD1">II. FRA's Buy America Requirements and Policy</HD> 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. <HD SOURCE="HD1">III. FRA's Authority To Waive Buy America Requirements</HD> 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). <HD SOURCE="HD1">IV. Summary of Products Requiring Waiver</HD> 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. <HD SOURCE="HD1">V. ASPA's Request for Waiver</HD> 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, alternat ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 15k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━