[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38163-38164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16386]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9426-7]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Metropolitan Council Environmental Services of St. Paul, 
MN (MCES)

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) [manufactured goods are not produced in the United 
States of a satisfactory quality] to MCES of St. Paul, Minnesota, for 
the purchase of four combination air release/vacuum valves (ARVs) to 
prevent failure or blockage of the South St. Paul Forcemain (pressure 
pipe) located in St. Paul, Minnesota. This is a project-specific waiver 
and it 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. These ARVs, which are manufactured in Israel, 
meet MCES's performance specifications and requirements. The Regional 
Administrator is making this determination based on the review and 
recommendations of EPA Region 5's Water Division. MCES 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 four combination ARVs for the 
South St. Paul Forcemain project that may otherwise be prohibited under 
Section 1605(a) of the ARRA.

DATES: Effective Date: June 29, 2011.

FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager 
(312) 886-0189, or Joseph Williams, Office of Regional Counsel, (312) 
886-6631, U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.

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 MCES of St. Paul, Minnesota, for the South St. Paul Forcemain 
project, for the acquisition of four combination ARVs that are 
manufactured in Israel.
    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, here EPA. A waiver may be provided 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 than 25 percent.
    These manufactured goods will prevent failure or blockage of the 
South St. Paul Forcemain pressure pipe. MCES started using these 
particular ARVs seven years ago and they have become their standard air 
release vacuum valve. They were selected as their standard because of 
their light weight, ease of installation and maintenance, simplicity of 
operation, excellent performance, and low cost. MCES's submissions 
clearly articulated functional reasons that justified their technical 
specifications and requirements.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of Public Law

[[Page 38164]]

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 applicant met the 
requirements specified for the availability inquiry as appropriate to 
the circumstances by conducting an extensive investigation into all 
possible sources for combination ARVs. Based on the investigation, 
several companies were found to manufacture the required ARVs, but none 
were able to meet all of the criteria in the project specifications, 
namely a conical body shape, a spring-loaded joint between the stem and 
the upper float, and a 316 SAE stainless steel body. Therefore, MCES 
contends that there is no domestic product of satisfactory quality 
available.
    EPA's national contractor prepared a technical assessment report 
based on the submitted waiver request. The report determined that the 
waiver request submittal was complete, that adequate technical 
information was provided, and that there were no significant weaknesses 
in the justification provided. Therefore, based on the information 
provided to EPA and to the best of our knowledge at this time, the four 
combination ARVs necessary for this project are not manufactured in the 
United States, and no other U.S. manufactured product can meet MCES's 
project performance specifications and requirements.
    EPA has also evaluated MCES's request to determine if its 
submission is considered late or if it could be considered timely, 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 
government, then EPA will still consider granting a waiver.
    In this case, there are no U.S. manufacturers that meet MCES's 
project specifications for the purchase of four combination ARVs to 
prevent failure or blockage of the South St. Paul Forcemain (pressure 
pipe). The waiver request was submitted after the contract was signed 
due to the large size of the project. With the nature of large projects 
having numerous items in the specifications, it is difficult and time 
consuming to know the origin of every single item, until shop drawings 
are submitted or it comes time to purchase an item. Therefore, MCES was 
not aware that there are no domestic equivalents for the ARVs in 
question until after the contract was signed. There is no indication 
that MCES 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 MCES's waiver request, a foreseeable late request, as though 
it had been timely made since there is no gain by MCES and no loss by 
the government due to the late request.
    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 loan recipients such as MCES 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 has reviewed this waiver request and has determined that the 
supporting documentation provided by MCES is sufficient to meet the 
criteria listed under Section 1605(b) of the ARRA 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) of the ARRA. Due to the 
lack of production of this item in the United States in sufficient and 
reasonably available quantities and of a satisfactory quality in order 
to meet MCES's project performance specifications and requirements, 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 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, MCES is 
hereby granted a waiver from the Buy American requirements of Section 
1605(a) of Public Law 111-5 for the purchase of four combination ARVs 
using ARRA funds as specified in the community's request. 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: May 9, 2011.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2011-16386 Filed 6-28-11; 8:45 am]
BILLING CODE 6560-50-P