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Buy America Waiver Notification

American Government

Buy America Waiver Notification

Nicole R. Nason
Federal Highway Administration
24 June 2020

[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Pages 38013-38014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13563]



Federal Highway Administration

Buy America Waiver Notification

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice.


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 


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.


    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-
    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 
    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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