[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38162-38163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16389]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9426-8]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Wayne County Department of Public Services in Wayne 
County, MI (Wayne County)

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 Wayne County for the purchase of 
Link-Pipe PVC products in various pipe diameters for sewer pipe repair 
in seventeen locations throughout the Rouge Valley Sewage Disposal 
System in Wayne County, Michigan. This is a project-specific waiver and 
only applies to the use of the specified products 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 Link-Pipe PVC products, which are manufactured in 
Canada, meet Wayne County'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. Wayne County 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 Link-Pipe PVC products in various pipe diameters for sewer 
pipe repair 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 Puja Lakhani, Office of Regional Counsel, (312) 353-
3190, 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 Wayne County, Michigan, for the acquisition of Link-Pipe PVC 
in various pipe diameters that are manufactured in Canada.
    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.
    The Link-Pipe PVC products will allow for efficient and effective 
sewer pipe repair at seventeen locations throughout the Rouge Valley 
Sewage Disposal System. Wayne County selected Link-Pipe products to 
allow for trenchless spot repair of sanitary sewer interceptor lines. 
The snap-out PVC repair sleeves are designed to quickly and easily 
repair damaged/leaking sanitary sewers without excavation--a 
requirement for the project since many of the sewer interceptor repair 
sites are located in remote wetlands and forested areas where access is 
restricted. Wayne County's submissions clearly articulated the 
functional reasons that justified their technical specifications and 
requirements.
    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 applicant met the requirements specified for the availability 
inquiry as appropriate to the circumstances by conducting an extensive 
investigation into all possible sources for products to repair sewer 
pipe 42 to 78 inches in diameter. Based on the investigation, several 
companies were found to manufacture sewer repair products, but none 
were able to meet all of the criteria in the project specifications, 
namely snap-out repair sleeves consisting of rigid polyvinylchloride 
pipe material conforming to material standards known as Normal Impact 
Type 1 PVC 12454-B, snap-out parts connected by non-corrodible metal 
hinges, and sleeves to repair sewer pipe between 42 to 78 inches in 
diameter. Therefore, Wayne County 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 
Link-Pipe PVC snap-out sewer repair sleeves necessary for this project 
are not manufactured in the United States, and no other U.S. 
manufactured product can meet Wayne County's project performance 
specifications and requirements.
    EPA has also evaluated Wayne County'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 Wayne 
County's project specifications for PVC repair sleeves that fit sewer 
pipe 42 to

[[Page 38163]]

78 inches in diameter. The waiver request was submitted after the 
contract was signed due to the large size of the project, which led to 
Wayne County not being made aware that there are no domestic 
equivalents for the PVC repair sleeves in question until after the 
contract was signed. There is no indication that Wayne County 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 Wayne 
County's waiver request, a foreseeable late request, as though it had 
been timely made since there is no gain by Wayne County 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 Wayne 
County 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 Wayne County 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 Wayne County'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, Wayne 
County is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of Link-Pipe PVC 
products in various pipe diameters 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: P.L. 111-5, section 1605.

    Dated: February 3, 2011.
 Susan Hedman,
 Regional Administrator, Region 5.
[FR Doc. 2011-16389 Filed 6-28-11; 8:45 am]
BILLING CODE 6560-50-P