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[Federal Register Volume 75, Number 239 (Tuesday, December 14, 2010)]
[Notices]
[Pages 77869-77871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31335]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9238-8]

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 Astoria (the City), OR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting 
a waiver request from the Buy American requirements of ARRA Section 
1605 under the authority of Section 1605(b)(1) [inconsistent with the 
public interest] to the City for the utilization and installation of 
one (1) Slide Gate in the influent control structure and two (2) Stop 
Logs/Guides sets in access manholes as part of an overall Combined 
Sewage Overflow (CSO) control project. This is a project specific 
waiver and only applies to the use of the specified product 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 City had the contractual obligation of the 
contractor and written verification from the manufacturer that the 
Slide Gate and Stop Logs/Guides would comply with Buy American 
requirements and be produced in a U.S. facility. However, the 
contractor observed that the Slide Gate and Stop Logs/Guides delivered 
to the site for installation had ``Made in Canada'' labeling. The 
contractor confirmed with the manufacturer that goods were actually 
manufactured in Canada, not in the U.S., and shipped to the project 
site in error. Due to contractual requirements, the contractor and 
manufacturer will absorb the costs of the Slide Gate and Stop Logs/
Guides. Re-ordering the Slide Gate and Stop Logs/Guides and having them 
manufactured in a U.S. facility would delay project completion by at 
least nine to ten weeks. Of significant note, the City has a 
contractual obligation to the Oregon Department of Environmental 
Quality (DEQ) to begin project testing and start up by December 1, 2010 
in order for the completed project to properly control CSOs and provide 
water quality protection during the typical wet weather associated with 
December and January, when CSOs are highest. Based upon information 
submitted by the City, EPA has concluded that requiring the 
installation of the domestic manufactured Slide Gate and Stop Logs/
Guides, which would extend the project schedule by at least nine to ten 
weeks, would be inconsistent with the public interest, and that a 
waiver of the Buy American provisions is justified. The Regional 
Administrator is making this determination based on the review and 
recommendations of the Grants and Strategic Planning Unit. The 
Assistant Administrator of the Office of Administration and Resources 
Management has concurred on this decision to make an exception to the 
requirements of Section 1605(a) of ARRA. This action allows the 
installation of the foreign manufactured Slide Gate and Stop Logs/
Guides, as

[[Page 77870]]

specified in the City's October 28, 2010 request.

DATES: Effective Date: December 3, 2010.

FOR FURTHER INFORMATION CONTACT: Bryan Fiedorczyk, CWSRF ARRA Program 
Management Analyst, Grants and Strategic Planning Unit, Office of Water 
& Watersheds (OWW), (206) 553-0506, 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 of Astoria, Oregon for the installation of 
one (1) Slide Gate in the influent control structure and two (2) Stop 
Logs/Guides sets in access manholes as part of an overall Combined 
Sewage Overflow (CSO) control project. Based on the information 
provided by the City, EPA has determined that it is inconsistent with 
the public interest for the City to further delay the project and 
pursue the purchase of a domestically made Slide Gate and Stop Logs/
Guides.
    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 a public works project unless all of the 
iron, steel, and manufactured goods used in the project is produced in 
the United States, or unless a waiver is provided to the recipient by 
the head of the appropriate agency, in this case, the EPA. A waiver may 
be provided under Section 1605(b) if EPA determines that (1) applying 
these requirements would be inconsistent 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.
    Consistent with the direction of OMB's regulation at 2 CFR 176.120, 
EPA will generally consider a waiver request with respect to components 
that were specified in the bid solicitation or in a general/primary 
construction contract or those made after obligating ARRA funds for a 
project to be a ``late'' request. However, in this case EPA has 
determined that the City's request, though made after the date the 
contract was signed, can be evaluated as timely because the contractor 
informed the City that due to an oversight, the Slide Gate and Stop 
Logs/Guides that were delivered to the construction site had been 
manufactured in a Canadian facility. The need for a waiver was not 
determined until after the contractor observed and verified the 
delivery of the foreign manufactured Slide Gate and Stop Logs/Guides. 
The recipient could not reasonably have foreseen the need for a 
determination until informed of the error. Accordingly, EPA will 
evaluate the request as if it were timely.
    The City is requesting a waiver of the Buy American provision for 
installation of one (1) Slide Gate in the influent control structure 
and two (2) Stop Logs/Guides sets in access manholes, which are 
necessary components of an overall Combined Sewage Overflow (CSO) 
control project. As context, the project cost is estimated at $8.8 
million, of which $4 million is ARRA funded, and the Slide Gate and 
Stop Logs/Guides are estimated to cost $20,000 or less.
    The City's general contractor submitted the Slide Gate and Stop 
Logs/Guides shop drawings for review by the City Engineer; there was no 
indication in the shop drawings that equipment would be manufactured in 
Canada. Additionally, correspondence from the manufacturer for the 
equipment description proposal and purchase order were from a U.S. 
address in New Hampshire. Finally, in the additional quotation and 
delivery conditions, the manufacturer certified that its quotation 
complies with all specifications, which include ARRA Buy American 
requirements. For these reasons, the City had no reason to suspect that 
foreign made goods would be delivered to the project site.
    However, the contractor noticed that the Slide Gate and Stop Logs/
Guides delivered to the site for installation had ``Made in Canada'' 
labeling and verified with the manufacturer that they were actually 
manufactured in Canada, and not in the U.S. Due to contractual 
requirements, the contractor and manufacturer will absorb the costs of 
the Slide Gate and Stop Logs/Guides; thus, the cost of this equipment 
will not be paid by the City. The City, which could not reasonably 
foresee the need for a waiver to the Buy American provision of the 
ARRA, immediately contacted DEQ after they were informed by the 
contractor of the delivery oversight, and submitted a waiver request 
(October 29, 2010) after discussing the necessary course of action with 
DEQ and EPA Region 10.
    Re-ordering the Slide Gate and Stop Logs/Guides and having them 
manufactured in a U.S. facility would delay project completion by at 
least nine to ten weeks. Of significant note, the City has a 
contractual obligation to DEQ to begin project testing and start up by 
December 1, 2010 in order for the completed project to properly control 
CSOs and provide water quality protection during the typical wet 
weather associated with December and January, when CSOs are highest.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
or require the substantial redesign of projects that are ``shovel 
ready'', such as this project in Astoria, Oregon. The implementation of 
the ARRA Buy American requirements in this case would result in an 
unreasonable delay in its completion. Such delay would also directly 
conflict with a fundamental economic purpose of ARRA, which is to 
create or retain jobs. More importantly, the imposition of the Buy 
American requirement would result in additional risk to water quality 
protection.
    The Grants and Strategic Planning Unit has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the City established a proper basis to specify that using the 
domestic manufactured good would be inconsistent with the public 
interest of the City of Astoria, Oregon. The information provided is 
sufficient to meet the following criteria listed under Section 
1605(b)(1) of the ARRA and in the April 28, 2009 Memorandum: Applying 
these requirements would be inconsistent with the public interest.
    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 grant 
recipients.
    Having established both a proper basis to specify the particular 
good required for this project and that using a domestically available 
alternative manufactured good would be inconsistent with the public 
interest, the City of Astoria, Oregon is hereby granted a waiver from 
the Buy American requirements of Section 1605(a) of Public Law 111-5. 
This waiver permits use of ARRA funds for the installation and 
utilization of foreign manufactured Slide Gate and Stop Logs/Guides as 
documented in the City's waiver request submittal dated October 28, 
2010. 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.

[[Page 77871]]

    Issued on: December 3, 2010.
Dennis J. McLerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2010-31335 Filed 12-13-10; 8:45 am]
BILLING CODE 6560-50-P
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