[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