[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Notices]
[Pages 6560-6562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2904]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9628-4]


Notice of a Project Waiver of the Buy American Requirement of the 
American Recovery and Reinvestment Act of 2009 (ARRA) to the City of 
Austin, TX

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 Austin (``the 
City'') for the purchase of ten (10) vertical linear motion mixers for 
the Clean Water State Revolving Fund (CWSRF) Hornsby Bend Biosolids 
Management Plant (BMP) Digester Improvement and Sustainability Project. 
The required vertical linear motion mixers 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

[[Page 6561]]

on this decision to make an exception to Section 1605 of ARRA. This 
action permits the purchase of the selected vertical linear motion 
mixers not manufactured in America, for the proposed project being 
implemented by the City.

DATES: Effective Date: January 12, 2012.

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 
vertical linear motion mixers. The City has been unable to find 
American made vertical linear motion mixers to meet its specific 
wastewater 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 noted that out of the ten (10) vertical linear motion 
mixers, two 10 horse power (hp) mixers are required for the flow 
equalization tanks, four 20 hp mixers for the thickened sludge tanks, 
and four 15 hp mixers for the anaerobic digesters. The City specified 
the linear mixers because of their cam-scotch-yoke mechanism and 
superior energy efficiency. The linear mixers are a proprietary 
technology and are only manufactured by Enersave, a Canadian 
manufacturer. The City has provided information to the EPA 
demonstrating that there are no Vertical linear motion mixers 
manufactured in the United States in sufficient and reasonable quantity 
and of a satisfactory quality to meet the required technical 
specification.
    Based on additional research conducted by EPA Region 6 there do not 
appear to be any American-made vertical linear motion mixers 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 vertical linear motion mixers 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 of a delay in the process of the LMTM Mixer 
technology being purchased by the City's supplier, Ovivo USA, LLC 
(``Ovivo''), f/k/a Eimco Water Technologies, from Enersave (the 
inventor), in order to obtain control of all technical drawings and 
manufacture the mixers in the United States. The vertical linear motion 
mixers have recently been patented by Enersave and Ovivo has purchased 
only the rights to use the technology in the municipal market in North 
America. Ovivo has been working with Enersave to allow the complete 
transfer of information to take place; however, the duration has taken 
longer than anticipated as the provided information has been found 
incomplete requiring detailed support and fabrication from the 
inventor. All linear motion mixers have been fabricated by the inventor 
(Enersave) to date, due to the detailed technical drawings not being in 
the control of Ovivo. The initial schedule of events planned to allow 
Ovivo to do the fabrication for the Hornsby Bend mixers in the United 
States, however, the delay in getting the necessary information 
prevented this from occurring. When Ovivo found that the schedule would 
not allow fabrication to occur in the United States the waiver was 
requested. In light of the unexpected delay in the purchase of the 
LMTM Mixer technology, EPA believes that the need for a 
waiver was not reasonably forseeable and thus will treat the City's 
waiver request as if timely submitted.
    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 vertical linear motion mixers 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

[[Page 6562]]

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 10 
vertical linear motion mixers, 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: Public Law 111-5, section 1605.

    Issued on: Dated: January 12, 2012.
 Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2012-2904 Filed 2-7-12; 8:45 am]
BILLING CODE 6560-50-P