2010-28143. Buy America Waiver Notification

AGENCY:

Maritime Administration, DOT.

ACTION:

Notice and Request for Comments.

SUMMARY:

This notice provides information regarding the Maritime Administration's (MarAd) finding that a Buy American waiver, stated in 23 U.S.C. 313, is appropriate for the purchase of foreign Mobile Harbor Cranes in the Federal-aid/American Recovery and Reinvestment Act of 2009 (ARRA) for the Port of Searsport, Port of Stockton, Port of West Sacramento and the Port of Davisville via the Quonset Development Corporation. The waivers for each of these projects involve specific items that are not produced in the United States and deemed necessary for the construction of the project. MarAd has reached out to the steel industry and solicited public comments on the domestic availability of these items. No domestic manufacturers have been located.

DATES:

The effective date of the waiver is November 9, 2010. Comments may be submitted up to 15 days after publication.

FOR FURTHER INFORMATION CONTACT:

Anthony Shuler Jr., Office of Infrastructure Development and Congestion Mitigation, Maritime Administration, MAR-510, 1200 New Jersey Ave., SE., Washington, DC 20590. Telephone: [phone], or via e-mail at [e-mail]. For legal questions, you may contact Murray Bloom, Chief, Division of Maritime Programs, Office of the Chief Counsel, Maritime Administration, MAR-222, 1200 New Jersey Ave., SE., Washington, DC 20590. Telephone: [phone], or via e-mail at [e-mail]. Office hours are from 8:30 a.m. to 5 p.m., 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/​federal-register/​ and at http://www.regulations.gov.

Background

Congress has enacted a Buy American provision which requires manufactured goods permanently incorporated into a project funded with Federal-aid funds to be produced in the United States. The application of Buy American is triggered by the obligation of Federal funds to a project. Once Federal-aid funds are obligated to a project, then all steel and iron incorporated into the project must be produced in the United States. The specific statutory requirement reads as follows:

Notwithstanding any other provision of law, the Secretary of Transportation shall not obligate any funds authorized to be appropriated to carry out the Surface Transportation Assistance Act of 1982 (Pub. L. 97-424) or this title and administered by the Department of Transportation, unless steel, iron, and manufactured products used in such project are produced in the United States.

23 U.S.C. 313(a)

Under 23 U.S.C. 313(b), the Secretary may waive the Buy American requirements for specific products on a Federal-aid construction project when, Buy American is inconsistent with the public interest; such materials and products are not produced in the United States in sufficient and reasonably available quantities and of satisfactory quality; or inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent.

The waiver process is initiated by a requesting organization when it believes that a waiver is Warranted pursuant to any of the three waiver provisions under 23 U.S.C. 313(b). Pursuant to Division A, Section 123 of the Consolidated Appropriations Act, 2010 (Pub. L. 111-117), MarAd is required to provide an informal public notice and comment opportunity for a period of 15 days for all waiver requests. MarAd complied with this informal public notice and comment requirement through the establishment of a dedicated Web site for Buy America waiver requests. The Web site MarAd established for this purpose is located at the following address: http://www.marad.dot.gov. The waiver notification postings solicited public comments on the intent to issue a waiver for a 15-day period, and all comments received within the 15 day comment period were evaluated and potential domestic sources were verified. During the 15-day comment period, MarAd conducted additional nationwide reviews by coordinating the waiver requests with appropriate industry associations and other potential domestic manufacturers. Following this comment period, and after MarAd's evaluation of the comments and coordination with the industry associations and potential manufacturers, MarAd developed findings and justifications for the waiver and publishes this decision in the Federal Register. MarAd's publication of its Buy American decision is required pursuant to the Buy American Act, 2 CFR 176.80(b)(2). The specific statutory requirement reads as follows:

The head of the Federal department or agency shall publish a notice in the Federal Register within two weeks after the determination is made, unless the item has already been determined to be domestically non-available. A list of items that are not domestically available is at 48 CFR 25.104(a). The Federal Register notice or information from the notice may be posted by OMB to Recovery.gov. The notice shall include — (i) The title “Buy American Exception under the American Recovery and Reinvestment Act of 2009”; (ii) The dollar value and brief description of the project; and (iii) A detailed written justification as to why the restriction is being waived.

2 CFR 176.80(b)(2)

Upon publication of this Federal Register notice, the public is afforded an opportunity to submit additional comments on this finding to MarAd's Web site for 15 days following the effective date of the finding.

Authority: 2 CFR 176.80(b)(2), 48 CFR 25.104(a).

Dated: November 2, 2010.

By Order of the Maritime Administrator

Murray Bloom,

Acting Secretary, Maritime Administration.