Buy America - Construction Program Guide - Contract Administration - Construction

Notice of Buy America Waiver Request

Action: Notice, request for comments.

Web posting date: 12/20/2024

Federal Register Notice of Finding Publication Date: To be determined.

Effective Date of Federal Register: To be determined.

Close of public comment period : 15 days following the effective date.

Summary: The Federal Highway Administration (FHWA) is seeking comments on whether to grant a non-availability waiver of its Buy America requirements to permit the use of submersible pumps with non-domestic steel and iron components at various Pump Stations for multiple Federal-aid projects in North Dakota, Texas, and Virginia. The estimated combined cost of the items to be waived is $12,104,515. These items are expected to be procured using apportioned Federal-aid Highway Program funds.

FHWA’s Buy America requirements at 23 U.S.C. 313 and 23 CFR 635.410(b)(1) provide that all steel and iron materials that are permanently incorporated into a project must be domestically manufactured. FHWA applies these steel and iron requirements to all predominantly iron or steel components, regardless of the composition of the product in which the components are included.

Contracting agencies have historically faced difficulties in procuring submersible pumps that are compliant with FHWA’s Buy America requirements due to the presence of foreign iron or steel components in available pumps. For example, on December 5, 2012, in response to waiver requests from the Michigan Department of Transportation and the Illinois Department of Transportation (IDOT) FHWA waived its Buy America requirements to allow for the use of non-domestic submersible pumps, finding that there were no domestic manufacturers. See 77 FR 72432; 77 FR 72433. Then in 2016, in response to a waiver request from the North Dakota DOT (NDDOT), FHWA again waived its Buy America requirements to allow for the use of non-domestic submersible pumps, again finding that there were no domestic manufacturers of the submersible pumps. See 81 FR 57997.

IDOT again sought in 2017 to identify Buy America-compliant manufacturers of submersible pumps, contacting 12 pump manufacturers, with 4 not responding and the remaining 8 stating they either do not manufacture submersible pumps with domestic steel components or that they could not otherwise comply with FHWA’s Buy America requirements. In 2020, IDOT contacted the same 12 manufacturers as well as an additional 3 pump manufacturers. Out of the 15 manufactures contacted, none could provide Buy America-compliant pumps for IDOTs use.

In 2023 and 2024, FHWA received Buy America waiver requests from the North Dakota DOT (NDDOT), Virginia DOT (VDOT), and Texas DOT (TxDOT) for domestic submersible pumps that include non-domestic iron or steel components to be used in 12 different projects after completing a nationwide search for domestic submersible pumps that meet both FHWA’s Buy America requirements and the project specifications for each individual project. Such detailed searches for the pumps are documented in the attached waiver request letter. Based on this market research, NDDOT, VDOT, and TxDOT believe that pumps meeting the specifications for their individual projects are not produced that are compliant with FHWA’s Buy America requirements. Accordingly, pursuant to 23 U.S.C. 313(b)(2) and 23 CFR 635.410(c)(1)(ii), NDDOT, VDOT, and TxDOT requested a waiver of FHWA’s Buy America requirements on the basis of nonavailability, because the submersible pumps needed for each infrastructure project are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality needed for the infrastructure project.

In addition to the market research detailed above, NDDOT, VDOT, and TxDOT also conducted follow-ups with manufacturers identified as possible domestic manufacturers of submersible pumps by the National Institute of Standards and Technology’s Manufacturing Extension Partnership (MEP) during MEP’s supplier scouting of domestic submersible pump manufacturers for the Illinois Department of Transportation (IDOT) in September 2023. This previous supplier scouting effort had identified five potential domestic manufacturers of submersible pumps, although no manufacturer was able to produce a pump meeting IDOT’s specifications and FHWA’s Buy America requirements. The follow-ups with these manufacturers similarly did not result in identifying domestic submersible pumps meeting FHWA’s Buy America requirements and project specifications for the twelve projects noted below.

Additionally, FHWA asked NDDOT, VDOT, and TxDOT to explore domestic procurement of submersible pumps from a manufacturer that submitted a comment to a notice of proposed waiver request to permit IDOT to use non-domestic submersible pumps.¹ This again did not result in the identification of any pumps meeting project specifications that were also compliant with FHWA’s Buy America requirements.

More information on the pumps for which waivers are sought is detailed in the below table and in the attached supporting documentation. The NAICS code for these pumps is 237110 or 33391.

	STATE DOT	No of PUMP	SUBMERSIBLE PUMP SPECIFICATIONS	FEDERAL-AID PROJECT
1	North Dakota	3	(2) 5,000 gallon per minute (gpm), 52 ft. of total dynamic head (tdh). (1) 500 gpm pump at 83 ft of tdh.	Lift station at I-29 and BNSF Railroad overpass structure
2	North Dakota	4	(2) 2,400 gpm @ 31 ft. tdh (2) 6,800 gpm @ 23 ft. tdh	Lift station at I-94 and University Drive S, and 25th Street S.
3	North Dakota	2	(2) 2,200 gpm @ 74.3 ft. tdh	Lift station at NDOT 23 bypass retention basin by cemetery in Watford City, ND
4	North Dakota	2	(2) 5,200 gpm	Lift station at Washington Street (US Highway 81 B) from 5th Avenue South to 1st Avenue North in Grand Forks, ND.
5	North Dakota	2	(2) 600 gpm @ 18.5 ft. tdh	Reconstruction of 1.06 miles of Memorial Highway between 32nd Avenue and 46th Avenue in Mandan, ND.
6	Virginia	17	(7) 1,500 gpm each, @ 170 ft. tdh (10) 5,400 gpm each, @ 60 ft. tdh	Pump Stations at I-64 corridor expansion in coastal Virginia, in each direction, including Tunnel storm drainage.
7	Texas	3	(2) 4,500 gpm (1) Sludge pump	Lift station at IH 45 NB Frontage Road at Cullen Blvd (CSJ 0500-03-644, Harris County, Texas)
8	Texas	3	(2) 6,000 gpm, 45 horsepower (HP) (1) Sludge Pump	Station Location: SH 6 at Burlington Northern Santa Fe (BNSF) Railroad Brazoria County, Texas (CSJ: 0192-02-060)
9	Texas	3	(2) 6,000 gpm, 70 HP (1) Sludge pump	Pump station at UA 90 and Griggs Road (CSJ 0027-09-111, Harris County, Texas)
10	Texas	3	(3) 6,500 gpm, 869 cubic ft. per minute	Pump Station at IH 45 at SH 242 in Montgomery County, TX CSJ: 0110-04-202, -205
11	Texas	5	(4) Stormwater Pumps 10,600 gpm (1) Sludge pump	Pump Station at Beltway 8 (SL 8) at US 90A CSJ: 3256-04-080
12	Texas	12	(8) Submersible pumps (16,000 gpm, 250 HP) (2) Submersible pumps (8,000 gpm, 135 HP) (2) Submersible pumps (1,000 gpm, 25 HP)	Pump Station at I-45 and I-69 CSJ: 0027-13-200

The FHWA proposes that the waiver apply to expenditures on or after the effective date of the final waiver for recipients of FHWA financial assistance under Title 23, U.S.C. and would expire after four years.

The FHWA will consider all comments received in the initial 15-day comment period during our evaluation of the nonavailability waiver requests. Comments received after this period but before notice of our finding is published in the Federal Register will be considered to the extent practicable. Follow-up coordination on the comments received may result in a delay in the publication of our waiver finding in the Federal Register. Comments received during the 5-day comment period after notice of our finding is published in the Federal Register will be reviewed, but the finding will continue to remain valid. Comments received during the comment period after the effective date of the finding may influence the FHWA’s decision to terminate or modify a finding.

Request letters:

Another supporting doc:

Contacts:

NDDOT; Justin Ramsey, PE, Tel (701)-328-4491, jramsey@nd.gov
VADOT: Ryan Banas, Tel (757)-858-6778, ryan.banas@dot.virginia.gov
TxDOT: Grady Mapes, PE, Tel (713)-866-7040, grady.mapes@txdot.gov

¹ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=175.

Comments

Justin Ramsey 01/02/2025
NDDOT appreciates FHWA’s thorough history of the long-standing issue obtaining submersible pumps that comply with FHWA’s Buy America requirements. Given that history, and the number of outstanding waiver requests from these three states, we encourage FHWA to act swiftly on the review of any comments received and the authorization of these waivers. NDDOT stands ready to assist in addressing any and all comments FHWA receives in an effort to move our much-needed roadway enhancements forward in a complete manner, addressing needed infrastructure and safety improvements. Having spent much time and money in researching this issue for these waiver request, NDDOT understands the needs for Texas and Virginia to have their waivers moved in an expeditious manner as well. With that in mind, we anticipate that issues that may arise for a single application will not hamper the progress of any other installations have been included in this group request for comment. Finally, given the history, quantity, and small dollar value of this category of product, NDDOT encourages FHWA to issue a general applicability waiver for submersible pumps under a non-availability concept. Under BABA these types of waivers are reviewed regularly, and that timeline may give United States based manufactures time to comply with the FHWA Buy America requirements for these items.
Andrew Carhart 01/03/2025
The California Department of Transportation (Caltrans) supports the request for FHWA to grant a Buy America Waiver for submersible pumps based on the information provided by multiple state DOTs. Pump stations are important to the transportation infrastructure and are directly connected to public safety during storm events. Delays in approving the waiver can impact the state's ability to provide submersible pumps to pump stations, thus impacting travel and public safety during storm events that lead to flooding. For additional information, please feel free to contact Kosha Shah, MS, P.E., Office Chief of Electrical, Mechanical, Water, and Wastewater Engineering in Caltrans Division of Engineering Services (916-639-5876; kosha.shah@dot.ca.gov). Thank you for the opportunity to comment.
American Road & Transportation Builders Association 01/03/2025
The American Road & Transportation Builders Association (ARTBA) supports the non-availability waiver request for submersible pumps as submitted by the three state departments of transportation to the Federal Highway Administration (FHWA). As documented in the information posted by FHWA, the three agencies from North Dakota, Virginia and Texas have conducted extensive market research and determined that submersible pumps are simply not available in domestically-manufactured form to meet the needs of these projects at this time. The pumps are unique items which will be critical to the safety and efficiency of the projects listed. For these projects to move forward, it is important for the waiver review process to proceed thoughtfully and expeditiously. ARTBA and our members certainly hope that domestic manufacturing of these items will eventually meet transportation infrastructure needs. However, granting of a non-availability waiver will acknowledge short-term market realities and keep the projects - and their related economic benefits - moving forward. Thank you for considering ARTBA's views on this issue.

Justin Ramsey 01/02/2025

NDDOT appreciates FHWA’s thorough history of the long-standing issue obtaining submersible pumps that comply with FHWA’s Buy America requirements. Given that history, and the number of outstanding waiver requests from these three states, we encourage FHWA to act swiftly on the review of any comments received and the authorization of these waivers. NDDOT stands ready to assist in addressing any and all comments FHWA receives in an effort to move our much-needed roadway enhancements forward in a complete manner, addressing needed infrastructure and safety improvements. Having spent much time and money in researching this issue for these waiver request, NDDOT understands the needs for Texas and Virginia to have their waivers moved in an expeditious manner as well. With that in mind, we anticipate that issues that may arise for a single application will not hamper the progress of any other installations have been included in this group request for comment. Finally, given the history, quantity, and small dollar value of this category of product, NDDOT encourages FHWA to issue a general applicability waiver for submersible pumps under a non-availability concept. Under BABA these types of waivers are reviewed regularly, and that timeline may give United States based manufactures time to comply with the FHWA Buy America requirements for these items.

Andrew Carhart 01/03/2025

The California Department of Transportation (Caltrans) supports the request for FHWA to grant a Buy America Waiver for submersible pumps based on the information provided by multiple state DOTs. Pump stations are important to the transportation infrastructure and are directly connected to public safety during storm events. Delays in approving the waiver can impact the state's ability to provide submersible pumps to pump stations, thus impacting travel and public safety during storm events that lead to flooding. For additional information, please feel free to contact Kosha Shah, MS, P.E., Office Chief of Electrical, Mechanical, Water, and Wastewater Engineering in Caltrans Division of Engineering Services (916-639-5876; kosha.shah@dot.ca.gov). Thank you for the opportunity to comment.

American Road & Transportation Builders Association 01/03/2025

The American Road & Transportation Builders Association (ARTBA) supports the non-availability waiver request for submersible pumps as submitted by the three state departments of transportation to the Federal Highway Administration (FHWA). As documented in the information posted by FHWA, the three agencies from North Dakota, Virginia and Texas have conducted extensive market research and determined that submersible pumps are simply not available in domestically-manufactured form to meet the needs of these projects at this time. The pumps are unique items which will be critical to the safety and efficiency of the projects listed. For these projects to move forward, it is important for the waiver review process to proceed thoughtfully and expeditiously. ARTBA and our members certainly hope that domestic manufacturing of these items will eventually meet transportation infrastructure needs. However, granting of a non-availability waiver will acknowledge short-term market realities and keep the projects - and their related economic benefits - moving forward. Thank you for considering ARTBA's views on this issue.

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