[Federal Register Volume 76, Number 195 (Friday, October 7, 2011)]
[Notices]
[Pages 62404-62405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26090]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9477-2]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the City of West Monroe, LA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 6 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 City of West Monroe 
(``the City'') for the purchase of the selected carbon steel pipe 
fittings and appurtenances (elbows, tees and flanges) to be 
incorporated in the Sparta Reuse Project--Waste Water Treatment 
Facility. The required carbon steel pipe fittings and appurtenances are 
manufactured by foreign manufacturers and no United States manufacturer 
produces an alternative that meets the City's technical specifications. 
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 the specific project circumstances. The 
Regional Administrator is making this determination based on the review 
and recommendations of the EPA Region 6, Water Quality Protection 
Division. The City has provided sufficient documentation to support its 
request.
    The Assistant Administrator of the EPA's 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 
the selected carbon steel pipe fittings and appurtenances not 
manufactured in America, for the proposed project being implemented by 
the City.

DATES: Effective Date: September 26, 2011.

FOR FURTHER INFORMATION CONTACT: Nasim Jahan, Buy American Coordinator, 
(214) 665-7522, SRF & Projects Section, Water Quality Protection 
Division, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
1605(b)(2), 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 City for the acquisition of selected 
carbon steel pipe fittings and appurtenances (elbows, tees and 
flanges). The City has been unable to find American made carbon steel 
pipe fittings and appurtenances to meet its specific water 
requirements.
    Section 1605 of 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 City has provided information to the EPA demonstrating that 
there are no carbon steel pipe fittings and appurtenances manufactured 
in the United States in sufficient and reasonable quantity and of a 
satisfactory quality to meet the required technical specification. The 
City indicated that of the ten US companies contacted, seven could not 
meet the requirement to provide the fittings and flanges manufactured 
from carbon steel sourced from steel mills in the United States. The 
remaining three companies contacted did not respond to requests for 
information regarding the sources of metals used in the fabrication of 
their products.
    The project specifications include requirements for the following 
pipe fittings and flanges:

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           Description              Quantity        Material          Code standard         Connection  type
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16-in. STD LR 90o elbow..........          6  Carbon Steel.......  ANSI A234 WPB......  Butt weld.
20-in. STD LR 90o elbow..........          3  Carbon Steel.......  ANSI A234 WPB......  Butt weld.
24-in. STD LR 90o elbow..........         16  Carbon Steel.......  ANSI A234 WPB......  Butt weld.
20-in. STD LR 45o elbow..........          1  Carbon Steel.......  ANSI A234 WPB......  Butt weld.
8-in. STD TEE....................         42  Carbon Steel.......  ANSI A234 WPB......  Butt weld.
24-in. STD Raised Face Blind               2  Carbon Steel.......  150 ANSI    Not applicable.
 Flange.                                                            A105.

[[Page 62405]]

 
24-in. STD Raised Face Weld Neck           3  Carbon Steel.......  150 ANSI    Not applicable.
 Flange.                                                            A105.
24-in. STD Flat Face Weld Neck             1  Carbon Steel.......  150 ANSI    Not applicable.
 Flange.                                                            A105.
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    Based on additional research conducted by EPA Region 6 there do not 
appear to be any American-made carbon steel pipe fittings and 
appurtenances that would meet the City's technical specifications. 
EPA's national contractor prepared a technical assessment report based 
on the waiver request submittal, which confirmed the waiver applicant's 
claim that there are no American-made carbon steel pipe fittings and 
appurtenances available for use in the proposed waste water treatment 
system.
    EPA has also evaluated the City's request to determine if its 
submission is considered late or if it could be considered timely, as 
per the OMB regulation 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, the waiver request was submitted after the contract 
date because the City initiated an evaluation of substantial 
transformation for the pipe fittings and appurtenances; however, after 
having a thorough discussion at the Regional level, the City has made a 
decision that the issuance of the project specific waiver for the 
carbon steel pipe fittings and appurtenances is the best way to ensure 
that the City is in compliance with the Buy American provisions of 
ARRA. There is no indication that the City 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 the City's waiver request, a 
foreseeable late request, as though it had been timely made since there 
is no gain by the City 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 City has incorporated specific technical design 
requirements for installation of carbon steel pipe fittings and 
appurtenances at its wastewater treatment plant.
    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 City, 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 Region 6 Water Quality Protection Division has reviewed this 
waiver request, and has determined that the supporting documentation 
provided by the City is sufficient to meet the criteria listed under 
ARRA, Section 1605(b), Office of Management and Budget (OMB) 
regulations at 2 CFR 176.60--176.170, and in the April 28, 2009, 
memorandum, ``Implementation of Buy American provisions of Public Law 
111-5, the American Recovery and Reinvestment Act of 2009. The basis 
for this project waiver is the authorization provided in ARRA, 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 City's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    EPA headquarters' 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 goods required for this project, and that these manufactured 
goods are not available from a producer in the United States, the City 
is hereby granted a waiver from the Buy American requirements of ARRA, 
Section 1605(a) of Public Law 111-5 for the purchase of the selected 
carbon steel pipe fittings and appurtenances, using ARRA funds, as 
specified in the City's request. This supplementary information 
constitutes the detailed written justification required by ARRA, 
Section 1605(c), for waivers ``based on a finding under subsection 
(b).''

    Authority:  Pub. L. 111-5, section 1605.

    Dated: September 26, 2011.
Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2011-26090 Filed 10-6-11; 8:45 am]
BILLING CODE 6560-50-P