[Federal Register Volume 74, Number 118 (Monday, June 22, 2009)]
[Notices]
[Pages 29483-29484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14600]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8921-1]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Auburn, ME Sewerage District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

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) [manufactured goods are not produced in the United 
States in sufficient and reasonably available quantities and of a 
satisfactory quality] to the Auburn, Maine Sewerage District for the 
purchase of specialized ductile iron spring loaded hinged 24'' diameter 
sanitary manhole covers and frames (i.e., ``REXUS 62114 24S or 
equal''). These manhole covers and frames are manufactured outside of 
the United States by Saint-Gobain, a company based in France, and meet 
the District's technical specifications, which have been in use for at 
least the past five years. The Acting Regional Administrator is making 
this determination based on the review and recommendations of the 
Municipal Assistance Unit. The Auburn, Maine Sewerage District 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. This action permits the purchase of specific ductile iron manhole 
covers and frames for the proposed project being implemented by the 
Auburn, Maine Sewerage District.

DATES: Effective Date: May 13, 2009.

FOR FURTHER INFORMATION CONTACT: Katie Connors, Environmental Engineer, 
(617) 918-1658, or David Chin, Environmental Engineer, (617) 918-1764, 
Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), 
U.S. EPA, One Congress Street, CMU, Boston, MA 02114.

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 the Auburn, 
Maine Sewerage District for the acquisition of specialized ductile iron 
spring loaded hinged 24'' diameter sanitary manhole covers and frames 
(i.e., ``REXUS 62114 24S or equal'') manufactured outside of 
the United States by Saint-Gobain, a company based in France.
    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 Auburn, Maine Sewerage District has stated that for at least 
the past five years it has standardized its manhole cover procurement 
on ductile iron covers and integrated frames. The District has utilized 
specialized 24'' diameter spring loaded hinged ductile iron sanitary 
manhole covers and frames (i.e., ``REXUS 62114 24S or equal'') 
within its collection system. The reasons for the District's standard 
include:
    (1) The product is more durable in a colder climate than comparable 
cast iron products; and (2) a spring loaded hinged and locking cover is 
much more secure and safer (e.g. the cover will not flip off when hit 
by a larger vehicle and will automatically lock in the vertical 
position to avoid inadvertent closure).
    The District's submission clearly articulates entirely functional 
reasons for its technical specifications, and has

[[Page 29484]]

provided sufficient documentation that the relevant manufactured goods 
are not produced in the United States in sufficient and reasonably 
available quantity and of a satisfactory quality to meet its technical 
specifications.
    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''. Based on conversations with the District, the technical 
design specifications for the manhole cover and frame were provided 
separately to all of the interested contractors prior to bid to ensure 
that materials would meet the District's standard specifications.
    The District has provided information to the EPA representing that 
there are currently no ductile iron manhole frames and covers 
manufactured in the United States that have the exact same product 
specifications in place. The District has also provided certification 
from its supplier representing that there are no other ductile iron 
manhole covers and frames from a domestic manufacturer to meet the 
District's exact specifications.
    Based on additional research (i.e. Internet product literature 
search and follow-up telephone calls) conducted by the Municipal 
Assistance Unit and to the best of the Region's knowledge at the time 
of the review, there do not appear to be other manhole covers and 
frames available to meet the District's exact technical specifications. 
There is one domestic manufacturer that has a product that appears to 
have most of the same attributes (e.g. ductile iron cover and frame, 
hinged cover, and a locking capability). However, based on information 
provided to the EPA at the time of the review, it did not have the 
spring loaded feature for its 24'' diameter manhole cover.
    Furthermore, 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 Auburn, Maine Sewerage District, 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 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 Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the Auburn, Maine Sewerage District is sufficient to meet the 
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 District's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    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 
Auburn, Maine Sewerage District is hereby granted a waiver from the Buy 
American requirements of Section 1605(a) of Public Law 111-5 for the 
purchase of ductile iron manhole covers and frames using ARRA funds as 
specified in the District's request of April 6, 2009. 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.

    June 8, 2009.
Ira W. Leighton,
Acting Regional Administrator, Region I, New England.
[FR Doc. E9-14600 Filed 6-19-09; 8:45 am]
BILLING CODE 6560-50-P