[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Notices]
[Pages 25242-25243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10908]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9145-5]


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 Faribault, MN (Faribault)

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) [manufactured goods are not produced in the United 
States of a satisfactory quality] to Faribault for the purchase of 
high-speed, high-efficiency magnetic bearing turbo-compressors to be 
used in the city's sludge treatment process. 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. These turbo-compressors, which are 
supplied by ABS USA of Meriden, Connecticut, are manufactured in 
Finland, and meet Faribault's performance specifications and 
requirements. The Acting Regional Administrator is making this 
determination based on the review and recommendations of EPA Region 5's 
Water Division. Faribault 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. This action permits the 
purchase of high-speed, high-efficiency magnetic bearing turbo-
compressors for Faribault's activated sludge project that may otherwise 
be prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: January 13, 2010.

FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager 
(312) 886-0189, or Puja Lakhani, Regional Counsel, (312) 353-3190, U.S. 
EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.

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 Faribault for the acquisition of high-speed, high-efficiency 
magnetic bearing turbo-compressors that are manufactured in Finland.
    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, here EPA. A waiver may be provided 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.
    These manufactured goods will provide aeration for Faribault's 
activated sludge treatment process. The city selected the magnetic 
bearing technology because of its ability to avoid overheating and its 
track record of providing long-standing reliable service--key 
advantages over the competing airfoil bearing technology. Also, the 
project specifications required a 322 horsepower capacity turbo-
compressor. Faribault's submissions clearly articulated functional 
reasons that justified their technical specifications and requirements.
    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 applicant met the procedures specified for the availability 
inquiry as appropriate to the circumstances by conducting an extensive 
investigation into all possible sources for high-speed,

[[Page 25243]]

high-efficiency turbo-compressors. Five companies were found to 
manufacture these machines, but only two (ABS and one other company) 
used magnetic bearings. This other company was presented in Faribault's 
submission as a U.S. firm that had bid on the project, but had never 
manufactured a turbo-compressor the size of the 322-hp models required 
for the project. Because of this, Faribault believed that there was no 
domestic product of satisfactory quality available.
    EPA's national contractor prepared a technical assessment report 
dated August 14, 2009, based on the submitted waiver request. The 
report determined that the waiver request submittal was complete, that 
adequate technical information was provided, and that there were no 
significant weaknesses in the justification provided. In the report's 
examination of this submittal, it originally appeared that the U.S. 
firm might be able to meet the bid specifications for the 
turbocompressor, i.e., could potentially be ``available.'' This report 
did indicate some uncertainty as to the characteristics and quality of 
the turbocompressor that could be made available by the U.S. firm. 
After substantial further inquiry, EPA determined that while a turbo-
compressor of characteristics and quality responsive to Faribault's 
specifications might be available from this U.S. firm, such a turbo-
compressor was not in fact made in the U.S. by this firm, but was 
manufactured abroad. This conclusion confirmed the waiver applicant's 
claim that there are no comparable domestic products that can meet the 
specific power and performance needs of the project Therefore, based on 
the information provided to EPA and to the best of our knowledge at 
this time, the high-speed, high-efficiency magnetic bearing turbo-
compressors necessary for this project are not manufactured in the 
United States, and no other U.S. manufactured product can meet 
Faribault's project performance specifications and requirements.
    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 communities such as Faribault 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.
    The State and Tribal Programs Branch has reviewed this waiver 
request and has determined that the supporting documentation provided 
by Faribault is sufficient to meet the criteria listed under Section 
1605(b) of the ARRA and in the April 28, 2009, ``Implementation of Buy 
American provisions of Public Law 111-5, the `American Recovery and 
Reinvestment Act of 2009' Memorandum'': 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 Faribault's project 
performance specifications and requirements, a waiver from the Buy 
American requirement is justified.
    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, Faribault 
is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of high-speed, 
high efficiency magnetic bearing turbo-compressors using ARRA funds as 
specified in the community's request of August 3, 2009. This 
supplementary information constitutes the detailed written 
justification required by Section 1605(c) for waivers ``based on a 
finding under subsection (b).''

    Authority: Pub. L. 111-5, section 1605.

    Dated: January 13, 2010.
Walter W. Kovalick,
Acting Regional Administrator, Region 3.
[FR Doc. 2010-10908 Filed 5-6-10; 8:45 am]
BILLING CODE 6560-50-P