[Federal Register Volume 76, Number 62 (Thursday, March 31, 2011)]
[Notices]
[Pages 17857-17858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7606]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL -9288-6]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the City of Amarillo, TX
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Regional Administrator of EPA Region 6 is hereby granting
a project waiver of the Buy American requirements of ARRA Section 1605
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 Amarillo,
Texas (``City'') for the purchase of a 5 horsepower (HP) non-clog
submersible pump, with NSF compliant wetted parts and appurtenances. As
the pump will be submersed in the drinking water wet well, the project
specification requires that all wetted components of the pump be
manufactured with NSF 61 compliant materials. The 5 HP non-clog
submersible pump, with NSF compliant wetted parts and appurtenances is
manufactured by foreign manufacturers and no United States manufacturer
produces an alternative that meets the City's technical specifications.
This is a project specific waiver and only applies to the use of the
specified product for the ARRA funded project being proposed. Any other
ARRA project that may wish to use the same product must apply for a
separate waiver based on the specific project circumstances. The
Regional Administrator is making this determination based on the review
and recommendations of the EPA Region 6, Water Quality Protection
Division. The City has provided sufficient documentation to support its
request.
The Assistant Administrator of the EPA's Office of Administration
and Resources Management has concurred on this decision to make an
exception to Section 1605 of ARRA. This action permits the purchase of
a 5 HP non-clog submersible pump, with NSF compliant wetted parts and
appurtenances not manufactured in America, for the proposed project
being implemented by the City.
DATES: Effective Date: March 8, 2011.
FOR FURTHER INFORMATION CONTACT: Nasim Jahan, Buy American Coordinator,
(214) 665-7522, SRF & Projects Section, Water Quality Protection
Division, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and
1605(b)(2), 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 acquisition of a 5 HP non-
clog submersible pump, with NSF compliant wetted parts and
appurtenances. The City has been unable to find an American made
submersible pump with NSF 61 compliant wetted components to meet its
specific requirements.
Section 1605 of the ARRA requires that none of the appropriated
funds may be used for the construction, alteration, maintenance, or
repair of a public building or public work unless all of the iron,
steel, and manufactured goods used in the project are produced in the
United States unless a waiver is provided to the recipient by EPA. A
waiver may be provided if EPA determines that (1) Applying these
requirements would be inconsistent with public interest; (2) iron,
steel, and the relevant manufactured goods are not produced in the
United States in sufficient and reasonably available quantities and of
a satisfactory quality; or (3) inclusion of iron, steel, and the
relevant manufactured goods produced in the United States will increase
the cost of the overall project by more than 25 percent.
The 5 HP non-clog submersible pump is part of a high service pump
and transfer station at the City's Osage Treatment Plant, which pumps
water out of the wet well of the City's water treatment plant. Because
the pump will be submerged in potable drinking water, the project
specifications require the pump's components that are in contact with
the water in the wet well be constructed of materials that are NSF 61
Standard compliant. In addition, the project specifications require the
following materials to be used for given pump parts.
(1) Cast iron: The pump case, motor housing, and impeller.
(2) Stainless steel: Pump shaft (wetted portion), guide rails,
lifting chains, fasteners, and metal seal parts.
(3) Viton (a fluoropolymer): O-rings.
(4) Silicon-carbide: Seals.
The City clarified that NSF 61 compliance standards supersede
certain components of the project specifications. In particular, the
pump case, motor housing, and impeller are required to be constructed
of stainless steel, and the seals are required to be fabricated of
Viton or EPDM polymer. The City also indicated that the pump is not
required to be NSF 61 Standard certified, but is required to have
wetted components constructed of materials such as stainless steel that
would not leach hazardous materials into the drinking water. The
specifications also identified four acceptable manufacturers: Flygt,
Fairbanks Morse, Wilo EMU, and Hydromatic. The City contacted all four
manufacturers and confirmed that they could not provide a pump
manufactured in the U.S. that meets the project specifications.
Based on additional research conducted by EPA Region 6, there does
not appear to be any domestic 5 HP non-clog submersible pump, with NSF
compliant wetted parts and appurtenances that would meet the City's
technical specifications. EPA's national contractor prepared a
technical assessment report based on the waiver request submittal. The
report confirmed the waiver applicant's claim that there is no
American-made 5 HP non-clog submersible pump, with NSF compliant wetted
parts and appurtenances.
EPA has also evaluated the City's request to determine if its
submission is considered late or if it could be considered timely, as
per the OMB Guidance at CFR Sec. 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 contract 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 specification for this 5 HP non-clog submersible pump, with NSF
compliant wetted parts and appurtenances. The waiver request is
[[Page 17858]]
submitted after the contract date because the specification in the
contract documents for this submersible pump named four U.S.
manufacturers as potential bidders. It was unknown at the time that
these four U.S. manufacturers could not completely meet the Buy
American provision because the specification required the pump be
completely constructed of NSF approved materials. This situation
resulted from the lack of reasonably foreseeable circumstances, since
the pump manufacturers originally assumed they could meet the
specification before the bid of this project. 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 available that meet the project specifications.
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 reasonably available quantity as
``the quantity of iron, steel, or relevant manufactured good is
available or will be available at the time needed and place needed, and
in the proper form or specification as specified in the project plans
and design.'' The City has incorporated specific technical design
requirements for installation of pump in its potable drinking water
system. Therefore, it meets the requirements of the ``satisfactory
quality'' criterion for requesting a waiver from the Buy American
provisions of Public Law 111-5.
The purpose of the ARRA is to stimulate economic recovery in part
by funding current infrastructure construction, not to delay projects
that are ``shovel ready'' by requiring utilities, such as the City, to
revise their standards and specifications, institute a new bidding
process, and potentially choose a more costly, less efficient project.
The imposition of ARRA Buy American requirements on such projects
otherwise eligible for State Revolving Fund 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
a fundamental economic purpose of the ARRA, which is to create or
retain jobs.
The Region 6 Water Quality Protection Division has reviewed this
waiver request, and has determined that the supporting documentation
provided by the City is sufficient to meet the criteria listed under
ARRA, Section 1605(b), Office of Management and Budget (OMB)
regulations at 2 CFR 176.60-176.170, and in the April 28, 2009,
memorandum, Implementation of Buy American provisions of Public Law
111-5, the ``American Recovery and Reinvestment Act of 2009.'' The
basis for this project waiver is the authorization provided in ARRA,
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 technical
specifications, a waiver from the Buy American requirement is
justified.
EPA headquarters' 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 ARRA,
Section 1605(a) of Public Law 111-5 for the purchase of a 5 HP non-clog
submersible pump, with NSF compliant wetted parts and appurtenances,
using ARRA funds, as specified in the City's request. This
supplementary information constitutes the detailed written
justification required by ARRA, Section 1605(c), for waivers ``based on
a finding under subsection (b).''
Authority: Pub. L. 111-5, section 1605.
Dated: March 8, 2011.
Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2011-7606 Filed 3-30-11; 8:45 am]
BILLING CODE 6560-50-P