Buy America Waiver Notification |
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Nicole R. Nason
Federal Highway Administration
24 June 2020
[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Notices]
[Pages 38013-38014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13563]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Buy America Waiver Notification
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
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SUMMARY: This notice provides information regarding FHWA's finding that
a Buy America waiver is appropriate for procurement of a mobile harbor
crane constructed with foreign iron and steel components for the
International Marine Terminal (IMT) at the Port of Portland in the
State of Maine.
DATES: The applicable date of the waiver is June 25, 2020.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Mr. Gerald Yakowenko, FHWA Office of Program
Administration, (202) 366-1562, or via email at
Gerald.Yakowenko@dot.gov. For legal questions, please contact Mr.
Patrick Smith, FHWA Office of the Chief Counsel, (202) 366-1345, or via
email at Patrick.C.Smith@dot.gov. Office hours for FHWA are from 8:00
a.m. to 4:30 p.m., E.S.T., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded from the
Federal Register's home page at: http://www.archives.gov and the
Government Publishing Office's database at: http://www.access.gpo.gov/nara.
Background
The FHWA's Buy America regulation in 23 CFR 635.410 requires a
domestic manufacturing process for any steel or iron products
(including protective coatings) that are permanently incorporated in a
Federal-aid construction project. The regulation also provides for a
waiver of the Buy America requirements when the application would be
inconsistent with the public interest or when satisfactory quality
domestic steel and iron products are not produced in the United States
in sufficient and reasonably available quantities. This notice provides
information regarding FHWA's finding that a Buy America waiver is
appropriate for use of non-domestic iron and steel components
associated with a mobile harbor crane for the IMT at the Port of
Portland in the State of Maine. The mobile harbor crane is not
available to be produced using 100 percent domestic steel or iron.
Maine Intermodal Port Productivity Project: On July 1, 2016, DOT
selected the Maine Department of Transportation (MaineDOT) to receive a
grant of funds for the Maine Intermodal Port Productivity Project
(Project) at the Port of Portland under the FASTLANE discretionary
grant program. On February 6, 2017, FHWA executed a term sheet with
MaineDOT, formalizing the scope, schedule, and budget of the award.
Improvements under the Project included: (i) Removing the existing
maintenance facility and infill of the wharf; (ii) installing a new
mobile harbor crane and other cargo handling equipment; (iii)
constructing a highway and rail crossing upgrade; and (iv) building a
new terminal operations and maintenance center. The projected cost of
the new mobile harbor crane was $4.5 million, with $2.25 million from
the FASTLANE Program, $1.3 million from the Congestion Mitigation and
Air Quality Improvement Program, and $950,000 from a State bond. The
U.S. Maritime Administration (MARAD) was designated as the DOT
Operating Administration responsible for overseeing the Project, but
FHWA also retained certain responsibilities related to the project
agreement(s), overseeing the reimbursement process, and final close-
out.
MaineDOT and MARAD determined that the improvements under the
Project each had independent utility or independent significance. Thus,
each improvement proceeded under a different development timeline and
separate Categorical Exclusion (CE) under the National Environmental
Policy Act, including a separate CE for the mobile harbor crane.
In early 2017, MaineDOT determined that mobile harbor cranes
meeting its needs for the Project were not produced in the United
States. Based on this determination, it submitted a Buy America waiver
request to FHWA for the mobile harbor crane on March 8, 2017. Outside
the scope of the FASTLANE grant, MaineDOT purchased a new mobile harbor
crane for the IMT at the Port of Portland in 2018 using State funds
only. However, MaineDOT continues to need the mobile harbor crane under
the FASTLANE grant to replace the older of the two cranes it now has at
the IMT at the Port of Portland.
As of the date of this notice, the Project improvements are
complete except for purchasing the mobile harbor crane. Without a Buy
America waiver, MaineDOT cannot proceed with purchasing a crane using
FASTLANE grant funds because the only known manufacturer for this type
of crane is in Germany.
Mobile Harbor Crane Needed by Maine DOT: MaineDOT continues to need
one mobile harbor crane, which is suited for port operations in a
marine environment for use in container or spreader loading and
unloading operations. The crane must be mobile and equipped with rubber
tires, feature level luffing, and include an enclosed cabin and
staircase. The crane must be capable of simultaneous and independent
operations of slewing, main hoist, and boom hoist motions under full
load and speed. The crane must have the capability to lift containers
of 41 metric tons (90,000 lbs.) while at a 101 foot (31 meter) working
radius when operating within the limited outrigger footprint. The crane
Load Moment Indicator must also have a pre-programmed mode to take this
limited footprint into consideration. Specially designed outrigger pads
will also need to be included to accommodate the structural limitations
of the pier. The crane will need to have
[[Page 38014]]
the specially designed outrigger pads to ensure that the corner load is
evenly distributed over three structural pile caps and directly above
the piles themselves. Additional information on the mobile harbor crane
needed by MaineDot is available under RFP # 201910181 issued on January
10, 2020, at https://www.maine.gov/dafs/bbm/procurementservices/vendors/rfps.
Waiver Request and Supporting Information: The MaineDOT originally
submitted a Buy America waiver request to FHWA for the mobile harbor
crane on March 8, 2017. Prior to submitting its waiver request,
MaineDOT sought but was unable to identify domestic manufacturers for
the crane. The FHWA initially published a notice of intent to issue a
waiver on its website on March 13, 2017.
On April 18, 2017, President Trump issued Executive Order (E.O.)
13788 requiring every executive branch agency to monitor, enforce, and
comply with existing ``Buy American Laws'' and minimize the use of
waivers. In addition, E.O. 13788 also set forth a policy ``to maximize,
consistent with law, . . . the use of goods, products, and materials
produced in the United States.'' Consistent with E.O. 13788, before
issuing a waiver, FHWA requested that MaineDOT seek to maximize the use
of domestic content on the mobile harbor crane.
Following this request, MaineDOT spent several months working with
FHWA and MARAD to develop a request for proposal (RFP) for the mobile
harbor crane seeking to identify domestic manufacturers or, if full
compliance was not possible, foreign manufacturers that could maximize
use of domestic content by using greater quantities of U.S. steel. The
RFP was issued by MaineDOT on January 10, 2020, and is available under
RFP #201910181, at https://www.maine.gov/dafs/bbm/procurementservices/vendors/rfps. In that RFP, MaineDOT included two notable provisions to
increase its use of domestic content. First, the RFP required bidders
to describe domestic content in their bid and weighted that information
in its best value evaluation. Second, the RFP stated that a bid would
not be considered responsive, and therefore could not be selected,
unless the bidder certified compliance with Buy America or maximized
the use of domestic content to justify a Buy America waiver.
Recognizing the need for Buy America compliance, MaineDOT has not
awarded a bid while its waiver request is outstanding.
Following issuance of RFP #201910181, MaineDOT received a single
bid on February 10, 2020, from Liebherr USA, Co., a German
manufacturer, for $5.085 million including zero American steel content.
The bid requested a Buy America waiver. Liebherr explained that it
produces its Liebherr Mobile Harbor Cranes in its existing factory in
Rostock, Germany. Liebherr also explained that establishing a unique
design and order process to incorporate U.S. steel content into the
crane was technically possible, but would increase delivery time by 18
months and the cost of the crane by at least 35 percent to around $7
million (or more). Although it does not produce mobile harbor cranes in
the U.S., Liebherr explained that it does have other manufacturing
facilities in the U.S. For example, it explained that it invested $45
million into expanding a factory and warehouse in Newport News,
Virginia. Liebherr maintains that, between facilities in Virginia and
Miami, Florida, it has invested over $65 million into U.S. facilities
and has over 1,100 U.S. employees. Considering that MaineDOT originally
estimated that a new mobile harbor crane would cost $4.5 million,
asking Liebherr to develop a unique design and order process to
incorporate U.S. steel content appears financially infeasible.
As described above, although MaineDOT did not identify compliant
products, it provided information to FHWA supporting its waiver
request, including:
Information describing the domestic content
characteristics of the manufactured product needed, including the
sources and assembly locations of that product;
information supporting the technical necessity of this
specific product for operations of the IMT at the Port of Portland; and
information documenting efforts to maximize domestic
content even if full compliance was not possible, including
collaboration with FHWA to develop an RFP designed to maximize domestic
content.
Public Comments on Waiver Request: In accordance with the
Consolidated Appropriations Act of 2016 (Pub. L. 114-113) and the
Continuing Appropriations Act of 2017 (Pub. L. 114-223), FHWA published
a notice of intent to issue a waiver on its website, https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=145, on March
13, 2017. The FHWA received no comments in response to the publication.
Finding and Request for Comments: Based on all the information
available to and received by it, FHWA concludes that there are no
domestic manufacturers of the mobile harbor crane. This finding is only
for a single mobile harbor crane for the IMT at the Port of Portland in
the State of Maine.
The MaineDOT and its contractors and subcontractors involved in the
procurement of the mobile harbor crane are reminded of the need to
comply with the Cargo Preference Act in 46 CFR part 38, if applicable.
In accordance with the provisions of section 117 of the SAFETEA-LU
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572),
FHWA is providing this notice as its finding that a waiver of Buy
America requirements is appropriate. The FHWA invites public comment on
this finding for an additional 5 days following the effective date of
the finding. Comments may be submitted to FHWA's website via the link
provided to the waiver page noted above.
(Authority: 23 U.S.C. 313; Pub. L. 110-161, 23 CFR 635.410)
Nicole R. Nason,
Administrator, Federal Highway Administration.
[FR Doc. 2020-13563 Filed 6-23-20; 8:45 am]
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