[Federal Register Volume 76, Number 195 (Friday, October 7, 2011)]
[Notices]
[Pages 62403-62404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26091]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9476-9]


Notice of a Regional Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the City of Airway Heights (the City), Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting 
a waiver from the Buy American requirements of ARRA Section 1605(a) 
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 for the purchase 
of six Carrier split ductless air conditioning (AC) units, manufactured 
in Mexico and South Korea. This is a project specific waiver and only 
applies to the use of the specified products 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 waiver applicant states that AC systems are required 
to provide a constant temperature for the electrical control room as 
part of the City's project to upgrade of the wastewater treatment 
plant. The City's consulting engineer requested the Carrier AC system 
products based on specifications on the project plans for six Carrier 
split ductless AC units. The City has provided sufficient documentation 
to support their request. This action allows the installation of the 
six specified ductless AC units as noted in the City's June 22, 2011, 
request and additional follow up documentation.

DATES: Effective Date: September 21, 2011.

FOR FURTHER INFORMATION CONTACT: Michelle Tucker, CWSRF Coordinator, 
Grants and Strategic Planning Unit, Office of Water & Watersheds (OWW), 
(206) 553-1414, U.S. EPA Region 10 (OWW-137), 1200 Sixth Avenue, Suite 
900, Seattle, WA 98101.

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 City for purchase of six non-domestic manufactured 
Carrier split ductless (AC) units. The City requires the AC systems to 
provide a constant temperature for the electrical control room as part 
of the City's project to upgrade of the wastewater treatment plant. The 
City planned to purchase and install the identified six ductless split 
AC units and one ducted unit from Carrier. The units are needed to keep 
the motor starters, control equipment, power transformers, circuit 
breakers, and other electronic controlling equipment at the wastewater 
treatment plant from overheating. The City's consultant conducted due 
diligence and research with five product suppliers of AC systems in the 
Eastern Washington area. The City's consultant concluded that there are 
no domestically produced ductless AC systems that could meet the 
product specifications.
    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 OMB regulations 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 contact 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 
regulation, 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 the City's 
requirement for ductless split AC units. The waiver request was 
submitted after contract signing; however, it was reasonably 
unforeseeable. ARRA Buy American documentation for the AC units was not 
supplied with the initial submittal in January 2010. Pending re-
submittal of the documentation, the City discovered that the units had 
a plate stamped ``Made in Mexico'' in September 2010. The City checked 
with the Department of Ecology and EPA to determine if the units were 
eligible under the Section 1605(d) trade agreement exception; EPA 
confirmed the units were not eligible for that exception. The City 
spent several months coordinating back and forth with the manufacturer 
and the contractor to explain that they were not covered by any 
international trade agreements and that an alternate means of 
compliance was necessary. The drafting of the project-specific 
availability waiver began in March 2011. The City delayed submitting 
the waiver request to investigate a potential domestic manufacturer 
(Enviromaster International) lead, which ultimately did not work out. 
Since the City was investigating various means of Buy American 
compliance through gathering adequate documentation, coordinating with 
the manufacturer and contractor, and researching potential domestic 
manufacturers, the circumstance of applying for a waiver after the 
start of construction was not foreseen. EPA has evaluated this 
information and will consider the City's waiver request as a timely 
request since it was reasonably unforeseeable.
    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 ``satisfactory quality'' as the 
quality of iron, steel or the relevant manufactured good as specified 
in the project plans and design. The City provided information to the 
EPA representing there are no current domestic manufacturers of the six 
ductless split air conditioning units. EPA's contractor reviewed the 
information provided by the City and determined that City's claim that 
no domestically manufactured air conditioner units exist that meets the 
project specifications for the six split ductless AC units is supported 
by the available information.
    Furthermore, the purpose of the ARRA provisions was to stimulate 
economic recovery by funding current infrastructure construction, not 
to delay projects that are already shovel ready by requiring entities, 
like the City, to revise their design and potentially choose a more 
costly and less effective project. The implementation of ARRA Buy 
American requirements on such projects eligible for CWSRF 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 the most fundamental economic purposes of ARRA, to 
create or retain jobs.

[[Page 62404]]

    The Grants and Strategic Planning Unit has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the City is sufficient to establish a proper basis. 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 in order to meet the City's design specifications.
    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 
assistance 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 manufacturer in the United 
States, the City is hereby granted a waiver from the Buy American 
requirements of Section 1605(a) of Public Law 111-5 for the purchase of 
six Carrier split ductless AC units, manufactured in Mexico and South 
Korea, for a wastewater treatment plant project specified in the City's 
waiver request of June 22, 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: September 21, 2011.
 Dennis J. McLerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2011-26091 Filed 10-6-11; 8:45 am]
BILLING CODE 6560-50-P