[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Notices]
[Pages 18218-18219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7786]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9287-6]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to Salt Lake City, UT
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA is hereby granting a project waiver of the Buy
American requirements of ARRA Section 1605 under the authority of
Section 1605(b)(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 to Salt Lake City,
UT for three vertical linear motion mixers to be installed in the
City's Water Reclamation Facility anaerobic digesters. 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 project-specific circumstances. Vertical linear motion
mixers are a proprietary mixing technology developed by Enersave Fluid
Mixers, Inc. (Enersave) of Ontario, Canada. The City's waiver request
states that the mixer's drive head is manufactured by Enersave in
Canada and the mixer's vertical drive shaft and hydro-disk will be
manufactured in the United States (U.S.). There are no U.S.
manufacturers of vertical linear motor mixers that meet the project
specifications. The Regional Administrator is making this determination
based on the review and recommendation of EPA Region 8's Technical &
Financial Services Unit. Salt Lake City has provided sufficient
documentation to support its request. The Assistant Administrator of
the Office of Administration and Resources Management has concurred on
this decision to make an exception to Section 1605 of ARRA.
DATES: Effective Date: April 1, 2011.
FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Recovery Act
Coordinator, (303) 312-7814, or Brian Friel, SRF Coordinator, (303)
312-6277, Technical & Financial Services Unit, Water Program, Office of
Partnerships & Regulatory Assistance, U.S. EPA Region 8, 1595 Wynkoop
St., Denver, CO 80202.
SUPPLEMENTARY INFORMATION:
In accordance with ARRA Section 1605(c) and pursuant to Section
1605(b)(2) of Public Law 111-5, Buy American requirements, EPA hereby
provides notice that it is granting a project waiver to Salt Lake City
for the purchase of three vertical linear motion mixers which have a
drive head that is manufactured by Enersave in Canada. This
manufactured good will be used as part of Salt Lake City's Water
Reclamation Facility's capacity upgrades.
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, or unless a waiver is provided to the recipient by the
head of the appropriate agency, in this case EPA. A waiver may be
provided if EPA determines that (1) Applying these requirements would
be inconsistent
[[Page 18219]]
with the 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 April 28, 2009 EPA HQ Memorandum (``EPA April memo''),
``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.'' It further defines satisfactory
quality as ``the quality of iron, steel, or the relevant manufactured
good as specified in the project plans and designs.''
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 cities such as Salt Lake City to
revise their standards and specifications and to start the bidding
process again. The imposition of ARRA Buy American requirements on such
projects otherwise eligible for ARRA State Revolving Fund assistance
would result in unreasonable delay and thus displace the ``shovel
ready'' status for this project. To further delay project
implementation is in direct conflict with a fundamental economic
purpose of the ARRA, which is to create or retain jobs.
EPA's national contractor prepared a technical assessment report
dated February 3, 2011, based on the submitted waiver request. The
report stated that the waiver request submittal was complete, that
adequate technical information was provided, and that there were no
significant weaknesses in the justification provided. The assessment
confirmed the waiver applicant's claim that there are no comparable
domestic products that can meet the project specifications.
The Technical & Financial Services Unit has reviewed this waiver
request and has determined that the supporting documentation provided
by Salt Lake City is sufficient to meet the criteria listed under
Section 1605(b) of the ARRA and in the EPA April memo: 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) of the ARRA. 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 Salt Lake City's performance specifications and requirements, a
waiver from the Buy American requirement is justified.
EPA has determined that the City's waiver request may be treated as
timely even though the request was made after the construction contract
was signed. Consistent with the direction of the OMB Guidance at 2 CFR
176.120, EPA has evaluated the City's request to determine if the
request constitutes a late request. 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, in this case EPA has
determined that the City's request, though made after the date that the
contract was signed, can be evaluated as timely because the need for
the waiver was not reasonably foreseeable. The waiver request was
submitted after the contract date due to a change order that was
approved on June 14, 2010. The original project only included
installing new covers on the digesters; however, once the project
started, it was determined that there were major structural
deficiencies and the digester tanks needed to be rehabilitated as well,
which included installing new mixers. As soon as it was determined that
the mixers had non-U.S. components, Salt Lake City started the waiver
request process. Accordingly, EPA will evaluate the request as a timely
request.
The March 31, 2009 Delegation of Authority Memorandum provided
Regional Administrators with the authority to issue exceptions to
Section 1605 of the 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, Salt Lake
City is hereby granted a waiver from the Buy American requirements of
Section 1605(a) of Public Law 111-5 for the purchase of three vertical
linear motion mixers using ARRA funds as specified in the City's
request of January 25, 2011. 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.
Dated: March 18, 2011.
James Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-7786 Filed 3-31-11; 8:45 am]
BILLING CODE 6560-50-P