[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30153-30154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12772]


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ENVIRONMENTAL PROTECTION AGENCY

 [FRL-9310-3]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the Town of Smyrna, DE

SUMMARY: The EPA is hereby granting a 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 Town of Smyrna, DE (``Town''), for the purchase of two 
inverter-driven ductless split HVAC systems: one air conditioning 
system and one combined heating/air conditioning system (HVAC), 
manufactured in Japan and Thailand by Mitsubishi Electronics American, 
Inc.--HVAC Division. This is a project specific waiver and only applies 
to the use of the specified product for the ARRA project being 
proposed. Any other ARRA recipient that wishes to use the same product 
must apply for a separate waiver based on project specific 
circumstances.
    The ARRA funded project is for upgrading two well houses (Well 
House No. 1 and Well House No. 2) with ductless split HVAC systems. The 
Well House No. 1 upgrade includes an air conditioning system for the 
well room and for Well House No. 2 the upgrade includes a heat pump 
system for the electrical room. The Town evaluated four different 
manufacturers of the specified ductless split air conditioning and heat 
pump systems. Based upon information submitted by the Town and its 
consulting engineer, EPA has concluded that there are no HVAC systems 
manufactured in the United States in sufficient and reasonable quantity 
and of a satisfactory quality to meet the technical specifications and 
that a waiver of the Buy American provisions is justified. The Regional 
Administrator is making this determination based on the review and 
recommendations of the EPA Region III, Water Protection Division, 
Office of Infrastructure and Assistance.
    The Assistant Administrator of the Office of Administration and 
Resources Management has concurred on this decision to make an 
exception to the requirements of Section 1605(a) of ARRA. This action 
permits the purchase of two inverter-driven ductless split HVAC systems 
for the proposed project being implemented by the Town of Smyrna.

DATES: May 24, 2011.

FOR FURTHER INFORMATION CONTACT: Robert Chominski, Deputy Associate 
Director, (215) 814-2162, or David McAdams, Environmental Engineer, 
(215) 814-5764, Office of Infrastructure & Assistance (OIA), Water 
Protection Division, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029.

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 Town of Smyrna, Delaware for the purchase of two 
inverter-driven ductless split HVAC systems (HVAC) for Well Houses 1 
and 2. EPA has evaluated the Town's basis for procuring the two HVAC 
systems for these well houses. The ARRA funded project is for upgrading 
two well houses (Well House No. 1 and Well House No. 2) with HVAC 
systems. The Well House No. 1 upgrade includes an air conditioning 
system for the well room and for Well House No. 2 the upgrade includes 
a heat pump system for the electrical room. Each system includes an 
indoor wall mounted evaporator-fan unit and an outdoor aired cooled 
compressor-condenser. The new HVAC split systems will provide benefits 
to the Town due to the product's reliability with the electronics 
controlling critical infrastructure, cost effectiveness, energy 
efficiency, and ease of maintenance. The project specifications require 
a scroll inverter type compressor with multi-speed motor and copper 
refrigerant tubes having mechanically bonded aluminum fins complying 
with ARI 210/240, and with liquid sub-cooler; wall mounted evaporator 
fan unit with direct drive centrifugal fan and copper refrigerant tubes 
with mechanically bonded aluminum fins complying with ARI 210/240; use 
of R-410A refrigerant; and a low ambient kit permitting operation down 
to 0[deg]F [applicable to the heat pump only]. The HVAC systems are 
specifically designed for this project to support new Motor Control 
Centers in the well houses. Currently, there are no HVAC systems in the 
two well houses. Based upon information submitted by the Town and its 
consulting engineer, EPA has concluded that there are no ductless split 
HVAC systems manufactured in the United States in sufficient and 
reasonable quantity and of a satisfactory quality to meet the technical 
specifications for the Town to pursue the purchase of domestically 
manufactured HVAC systems.
    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 a public works project unless all of the 
iron, steel, and manufactured goods used in the project is produced in 
the United States, or unless a waiver is provided to the recipient by 
the head of the appropriate agency, here the EPA. A waiver may be 
provided under Section 1605(b) if EPA determines that (1) Applying 
these requirements would be inconsistent 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 than25 percent.
    EPA has also evaluated the Town'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 2 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 
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

[[Page 30154]]

government, then EPA will still consider granting a waiver.
    In this case, there are no U.S. manufacturers that meet the Town's 
project specifications for the HVAC systems. The waiver request was 
submitted after the contract date due to the Town's contractor not 
notifying them until February 24, 2011 that a Buy American waiver was 
needed since they could not find an American manufacturer of the HVAC 
system to meet the project specifications. Therefore, the Town did not 
submit a waiver request until March 3, 2011. There is no indication 
that the Town failed to request a waiver to avoid the requirements of 
the ARRA, particularly since there are no domestically manufactured 
products that meet the project specifications. EPA will consider the 
Town's waiver request, a foreseeable late request, as though it had 
been timely made since there is no gain by the Town 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 Town has provided information to the EPA representing 
that there are currently no domestic manufacturers of the HVAC systems 
that meet the project specification requirements. Based on additional 
research by EPA's consulting contractor and to the best of the Region's 
knowledge at this time, there does not appear to be any other 
manufacturer capable of meeting the Town's specifications.
    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 Town, 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 OIA has reviewed this waiver request and, to the best 
of our knowledge at the time of review, has determined that the 
supporting documentation provided by the Town 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 to meet the Town'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 Town 
of Smyrna is hereby granted a waiver from the Buy American requirements 
of Section 1605(a) of Public Law 111-5 for the purchase of two 
inverter-driven ductless split HVAC systems using ARRA funds as 
specified in the Town of Smyrna's request of March 3, 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.

    Issued on: Dated: April 27, 2011.
W.C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency, 
Region III.
[FR Doc. 2011-12772 Filed 5-23-11; 8:45 am]
BILLING CODE 6560-50-P