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###### Environmental Protection Agency

          - [FRL-9287-6]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# 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) 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 to Salt Lake City, UT for three vertical linear motion mixers to be installed in the City's Water Reclamation Facility anaerobic digesters. 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 project-specific circumstances. Vertical linear motion mixers are a proprietary mixing technology developed by Enersave Fluid Mixers, Inc. (Enersave) of Ontario, Canada. The City's waiver request states that the mixer's drive head is manufactured by Enersave in Canada and the mixer's vertical drive shaft and hydro-disk will be manufactured in the United States (U.S.). There are no U.S. manufacturers of vertical linear motor mixers that meet the project specifications. The Regional Administrator is making this determination based on the review and recommendation of EPA Region 8's Technical & Financial Services Unit. Salt Lake City 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.

# DATES:

*Effective Date:*                         April 1, 2011.                    

# FOR FURTHER INFORMATION CONTACT:

Jody Ostendorf, Recovery Act Coordinator, (303) 312-7814, or Brian Friel, SRF Coordinator, (303) 312-6277, Technical & Financial Services Unit, Water Program, Office of Partnerships & Regulatory Assistance, U.S. EPA Region 8, 1595 Wynkoop St., Denver, CO 80202.

# 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 Salt Lake City for the purchase of three vertical linear motion mixers which have a drive head that is manufactured by Enersave in Canada. This manufactured good will be used as part of Salt Lake City's Water Reclamation Facility's capacity upgrades.

                    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, in this case EPA. A waiver may be provided if EPA determines that (1) Applying these requirements would be inconsistent                           ( print page 18219)                        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 April 28, 2009 EPA HQ Memorandum (“EPA April memo”), “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.” It further defines                     *satisfactory quality*                     as “the quality of iron, steel, or the relevant manufactured good as specified in the project plans and designs.”                

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 cities such as Salt Lake City 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's national contractor prepared a technical assessment report dated February 3, 2011, based on the submitted waiver request. The report stated that the waiver request submittal was complete, that adequate technical information was provided, and that there were no significant weaknesses in the justification provided. The assessment confirmed the waiver applicant's claim that there are no comparable domestic products that can meet the project specifications.

The Technical & Financial Services Unit has reviewed this waiver request and has determined that the supporting documentation provided by Salt Lake City is sufficient to meet the criteria listed under Section 1605(b) of the ARRA and in the EPA April memo: 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 product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet Salt Lake City's performance specifications and requirements, a waiver from the Buy American requirement is justified.

EPA has determined that the City's waiver request may be treated as timely even though the request was made after the construction contract was signed. Consistent with the direction of the OMB Guidance at 2 CFR 176.120, EPA has evaluated the City's request to determine if the request constitutes a late request. 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, in this case EPA has determined that the City's request, though made after the date that the contract was signed, can be evaluated as timely because the need for the waiver was not reasonably foreseeable. The waiver request was submitted after the contract date due to a change order that was approved on June 14, 2010. The original project only included installing new covers on the digesters; however, once the project started, it was determined that there were major structural deficiencies and the digester tanks needed to be rehabilitated as well, which included installing new mixers. As soon as it was determined that the mixers had non-U.S. components, Salt Lake City started the waiver request process. Accordingly, EPA will evaluate the request as a timely request.

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, Salt Lake City is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of three vertical linear motion mixers using ARRA funds as specified in the City's request of January 25, 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: March 18, 2011.

James Martin,

Regional Administrator, Region 8. 

[FR Doc. 2011-7786 Filed 3-31-11; 8:45 am]

BILLING CODE 6560-50-P