[Federal Register Volume 76, Number 25 (Monday, February 7, 2011)]
[Notices]
[Pages 6614-6616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2606]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9262-4]
Notice of a Regional Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the City of Seattle (the City), WA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting
a waiver of the Buy American requirements of ARRA Section 1605(a) under
the authority of Section 1605(b)(2) [manufactured goods are not
produced in the United States in sufficient and reasonably available
quantities and of a satisfactory quality] to the City of Seattle (the
City) for the purchase of semi-rigid protection boards (15,600 sheets
each measuring 39\1/2\'' x 80'') manufactured in Surrey, British
Columbia, for a hot applied membrane waterproofing system for a
drinking water reservoir cover. This is a project specific waiver and
only applies to the use of the specified products for the ARRA project
being proposed. Any other ARRA recipient that wishes to use the same
product must apply for a
[[Page 6615]]
separate waiver based on project specific circumstances. The waiver
applicant states that the project requires semi-rigid protection boards
because the Maple Leaf Reservoir is being covered by a concrete roof as
part of the City's reservoir burying program. The City's Parks
Department will be constructing a park on the roof of the reservoir. A
waterproofing system will provide a watertight seal on the reservoir
roof concrete deck. Semi-rigid rubberized asphaltic fiberglass
reinforced protection board will be incorporated as part of the roof
waterproofing system to provide a barrier over the waterproofing
membrane to protect the membrane against damage from the backfill
associated with the construction of the park, and from the pedestrian
and vehicular activity associated with the use and maintenance of the
park.
The Regional Administrator is making this determination based on
the review and recommendations of the Drinking Water Unit. The City has
provided sufficient documentation to support their request.
DATES: Effective Date: January 31, 2011.
FOR FURTHER INFORMATION CONTACT: Johnny Clark, DWSRF ARRA Program
Management Analyst, Drinking Water Unit, Office of Water & Watersheds
(OWW), (206) 553-0082, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), the
EPA hereby provides notice that it is granting a project waiver of the
requirements of Section 1605(a) of Public Law 111-5, Buy American
requirements, to the City for the semi-rigid protection boards (15,600
sheets each measuring 39\1/2\'' x 80'') manufactured in Surrey, British
Columbia, for a hot applied membrane waterproofing system for a
drinking water reservoir cover. The applicant indicates that semi-rigid
protection board is required on the roof of the drinking water supply
reservoir to obtain a twenty (20) year warranty from the waterproofing
manufacturer. Semi-rigid protection board is currently being used at
three (3) other reservoirs operated by the City. Based upon project
specifications, there are no known U.S. manufactures that manufacture
comparable products. The ARRA funded project involves water system
improvements at the Maple Leaf Reservoir. Enhanced moisture protection
is being incorporated into the reinforced hot-applied waterproofing
system to allow for pedestrian use and vehicular activity. As part of
the reservoir burying program, the City's Parks Department will be
constructing a park on the roof of the reservoir. The City currently
has three other reservoirs which also have the semi-rigid protection
board installed. The City's project specification calls for the
reinforced hot applied waterproofing system. In order to provide
equivalent waterproofing protection similar to the three other
reservoirs within the City, the City changed the project specifications
in order to ensure consistency of their reservoir burying program
requirements and to ensure the semi-rigid protection board's twenty
(20) year warranty. An inquiry by EPA's national contractor (Cadmus)
confirmed there are no known domestic manufacturers of comparable semi-
rigid protection board that meet all aspects of the project
specification, which is supported by the available information.
Information received from the manufacturer on behalf of the City
indicated that an attempt to locate a domestic manufacturer was done so
unsuccessfully. The manufacturer added this product to their inventory
and product line some years ago. According to the manufacturer, their
two domestic suppliers of protection materials had indicated that they
were unable to manufacture a similar/like product and nor did either
supplier have knowledge of a similar/like product manufactured in the
U.S. Based on available information, it is unlikely that other semi-
rigid protection boards would function within the requirement of the
project specifications.
EPA has also evaluated the City's request to determine if its
submission is considered late or if it could be considered as if it was
timely filed, as per the OMB Guidance at CFR 176.120. EPA will
generally regard waiver requests with respect to components that were
specified in the bid solicitation or in a general/primary construction
contact as ``late'' if submitted after the contract date. However, EPA
could also determine that a request be evaluated as timely, though made
after the date that the contract was signed, if the need for a waiver
was not reasonably foreseeable. If the need for a waiver is reasonably
foreseeable, then EPA could still apply discretion in these late cases
as per the OMB Guidance, which says ``the award official may deny the
request.'' For those waiver requests that do not have a reasonably
unforeseeable basis for lateness, but for which the waiver basis is
valid and there is no apparent gain by the ARRA recipient or loss on
behalf of the government, then EPA will still consider granting a
waiver.
In this case, there are no U.S. manufacturers that meet the City's
project specifications for the semi-rigid protection boards. The waiver
request was submitted after the contract date due to a design change.
The original project specifications for the protection course were
developed with a standard design, 80- to 90-mil-(2.0- to 2.3-mm)
thickness, fiberglass reinforced asphalt or modified bituminous sheet.
The design change and clarification of May 12, 2010 resulted in an
upgrade to the existing protective course requirements, in order to
provide extra reinforcement and increased puncture resistance, similar
to the three other reservoir covers previously installed within the
City. The design change was necessary due to the project's size and
complexity. The design change also increases performance of the
protection board and the potential life expectancy of the project
resulting in a twenty year warranty program. The design change required
the upgrade of the protection course to a semi-rigid protection board
composed of a rubberized asphalt core, reinforced with a non-woven
fiberglass mat and sandwiched between two protective polypropylene
layers, with a minimum nominal thickness of 4.5 mm. The material
supplier and contractor's assumption that the protection board would be
acceptable under the North American Free Trade Agreement (NAFTA) or the
U.S. and Canada Trade Agreement signed effective February 16, 2010, was
made so in error. Therefore, the City did not submit a waiver request
until November 10, 2010. The City's Materials Lab consulted with EPA
personnel and correctly identified that a waiver would be required for
the protection board. There is no indication that the City failed to
request a waiver in order to avoid the requirements of the ARRA,
particularly since there are no domestically manufactured products that
meet the project specification. EPA will consider the City's waiver
request, a foreseeable late request, as though it had been timely made
since there is no gain by the City and no loss by the government due to
the late request.
The April 28, 2009 EPA HQ Memorandum, Implementation of Buy
American provisions of Public Law 111-5, the ``American Recovery and
Reinvestment Act of 2009'', defines ``satisfactory quality'' as the
quality of iron, steel or the relevant manufactured good as specified
in the project plans and design. The City has provided information to
the EPA representing that there are currently no domestic manufacturers
of the semi-rigid protection boards that meet the project
[[Page 6616]]
specification requirements. Based on additional research by EPA's
consulting contractor (Cadmus) and to the best of the Region's
knowledge at this time, there does not appear to be any other
manufacturers capable of meeting the City's specifications.
Furthermore, the purpose of the ARRA provisions was to stimulate
economic recovery by funding current infrastructure construction, not
to delay projects that are already shovel ready by requiring entities,
like the City, to revise their design and potentially choose a more
costly and less effective project. The imposition of ARRA Buy American
requirements on such projects eligible for DWSRF assistance would
result in unreasonable delay and thus displace the ``shovel ready''
status for this project. To further delay construction is in direct
conflict with the most fundamental economic purposes of ARRA; to create
or retain jobs.
The Drinking Water Unit has reviewed this waiver request and has
determined that the supporting documentation provided by the City is
sufficient to meet the following criteria listed under Section 1605(b)
and in the April 28, 2009, Implementation of Buy American provisions of
Public Law 111-5, the ``American Recovery and Reinvestment Act of
2009'' Memorandum: Iron, steel, and the manufactured goods are not
produced in the United States in sufficient and reasonably available
quantities and of a satisfactory quality.
The basis for this project waiver is the authorization provided in
Section 1605(b)(2), due to the lack of production of this product in
the United States in sufficient and reasonably available quantities and
of a satisfactory quality in order to meet the City's design
specifications.
The March 31, 2009 Delegation of Authority Memorandum provided
Regional Administrators with the authority to issue exceptions to
Section 1605 of ARRA within the geographic boundaries of their
respective regions and with respect to requests by individual grant
recipients.
Having established both a proper basis to specify the particular
good required for this project, and that this manufactured good was not
available from a producer in the United States, the City is hereby
granted a waiver from the Buy American requirements of Section 1605(a)
of Public Law 111-5 for the purchase semi-rigid protection boards for a
hot applied membrane waterproofing system (15,600 sheets each measuring
39\1/2\'' x 80'') for a reservoir cover, manufactured in Surrey,
British Columbia, specified in the City's waiver request of November
10, 2010. This supplementary information constitutes the detailed
written justification required by Section 1605(c) for waivers based on
a finding under subsection (b).
Authority: Public Law 111-5, section 1605.
Issued on: Dated: January 31, 2011.
Dennis J. Mclerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2011-2606 Filed 2-4-11; 8:45 am]
BILLING CODE 6560-50-P