[Federal Register Volume 76, Number 62 (Thursday, March 31, 2011)]
[Notices]
[Pages 17857-17858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7606]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -9288-6]


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 Amarillo, 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 Amarillo, 
Texas (``City'') for the purchase of a 5 horsepower (HP) non-clog 
submersible pump, with NSF compliant wetted parts and appurtenances. As 
the pump will be submersed in the drinking water wet well, the project 
specification requires that all wetted components of the pump be 
manufactured with NSF 61 compliant materials. The 5 HP non-clog 
submersible pump, with NSF compliant wetted parts and appurtenances is 
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 
a 5 HP non-clog submersible pump, with NSF compliant wetted parts and 
appurtenances not manufactured in America, for the proposed project 
being implemented by the City.

DATES: Effective Date: March 8, 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 a 5 HP non-
clog submersible pump, with NSF compliant wetted parts and 
appurtenances. The City has been unable to find an American made 
submersible pump with NSF 61 compliant wetted components to meet its 
specific requirements.
    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 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 5 HP non-clog submersible pump is part of a high service pump 
and transfer station at the City's Osage Treatment Plant, which pumps 
water out of the wet well of the City's water treatment plant. Because 
the pump will be submerged in potable drinking water, the project 
specifications require the pump's components that are in contact with 
the water in the wet well be constructed of materials that are NSF 61 
Standard compliant. In addition, the project specifications require the 
following materials to be used for given pump parts.
    (1) Cast iron: The pump case, motor housing, and impeller.
    (2) Stainless steel: Pump shaft (wetted portion), guide rails, 
lifting chains, fasteners, and metal seal parts.
    (3) Viton (a fluoropolymer): O-rings.
    (4) Silicon-carbide: Seals.
    The City clarified that NSF 61 compliance standards supersede 
certain components of the project specifications. In particular, the 
pump case, motor housing, and impeller are required to be constructed 
of stainless steel, and the seals are required to be fabricated of 
Viton or EPDM polymer. The City also indicated that the pump is not 
required to be NSF 61 Standard certified, but is required to have 
wetted components constructed of materials such as stainless steel that 
would not leach hazardous materials into the drinking water. The 
specifications also identified four acceptable manufacturers: Flygt, 
Fairbanks Morse, Wilo EMU, and Hydromatic. The City contacted all four 
manufacturers and confirmed that they could not provide a pump 
manufactured in the U.S. that meets the project specifications.
    Based on additional research conducted by EPA Region 6, there does 
not appear to be any domestic 5 HP non-clog submersible pump, with NSF 
compliant wetted parts 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. The 
report confirmed the waiver applicant's claim that there is no 
American-made 5 HP non-clog submersible pump, with NSF compliant wetted 
parts and appurtenances.
    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 Guidance at CFR Sec.  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 the City's 
project specification for this 5 HP non-clog submersible pump, with NSF 
compliant wetted parts and appurtenances. The waiver request is

[[Page 17858]]

submitted after the contract date because the specification in the 
contract documents for this submersible pump named four U.S. 
manufacturers as potential bidders. It was unknown at the time that 
these four U.S. manufacturers could not completely meet the Buy 
American provision because the specification required the pump be 
completely constructed of NSF approved materials. This situation 
resulted from the lack of reasonably foreseeable circumstances, since 
the pump manufacturers originally assumed they could meet the 
specification before the bid of this project. 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 pump in its potable drinking water 
system. Therefore, it meets the requirements of the ``satisfactory 
quality'' criterion for requesting a waiver from the Buy American 
provisions of Public Law 111-5.
    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 good required for this project, and that this manufactured 
good was 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 a 5 HP non-clog 
submersible pump, with NSF compliant wetted parts 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: March 8, 2011.
Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2011-7606 Filed 3-30-11; 8:45 am]
BILLING CODE 6560-50-P