[Federal Register Volume 75, Number 213 (Thursday, November 4, 2010)]
[Notices]
[Pages 67966-67967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27879]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9220-4]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Town of Taos, NM

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 Town of Taos 
(``Taos'') for the purchase of 40 lb/yd American Society of Civil 
Engineers (ASCE) crane railing, which is part of the overhead bridge 
crane, proposed for the expansion of its existing Wastewater Treatment 
Plant (WWTP). The 40 lb/yd ASCE crane railing is manufactured by 
companies located in foreign countries and no United States 
manufacturer produces an alternative that meets Taos' 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. Taos 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 
40 lb/yd ASCE crane railing not manufactured in America, for the 
proposed project being implemented by Taos.

DATES: Effective Date: October 18, 2010.

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), 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 Taos for the acquisition of 40 lb/yd ASCE crane 
railing that will be part of the overhead bridge crane for the WWTP.
    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.
    Taos' waiver request is to allow the purchase of a 40lb/yd ASCE 
crane railing that will be part of the overhead bridge crane for the 
WWTP in Taos, New Mexico. Taos has provided information to the EPA 
demonstrating that there is no 40 lb/yd ASCE crane railing manufactured 
in the United States in sufficient and reasonable quantity and of a 
satisfactory quality to meet the required technical specification. The 
United States stopped producing 40lb/yd rail at the turn of 20th 
Century due to increases in weight demand on railroads. The ASCE 
designed a load limit for railroad tracks that severely limited the 
quantity of rail less than 80 lb/yd being produced. Taos has also 
indicated that Steel of West Virginia is a steel mill that produces 
rails for the mining industry and this manufacturer's product does not 
meet ASCE standards and therefore cannot be used in this project.
    Based on additional research conducted by EPA Region 6, there does 
not appear to be any domestic crane rail manufacturer that would meet 
Taos' 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 40 lb/yd crane railing available for the overhead bridge 
crane for use in the proposed WWTP.
    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 contract 
date, may be treated as timely. This request is submitted after the 
contract date because the crane rail, according to the project 
specifications, must be designed by a qualified supplier. The supplier 
provided this information through contractor submittals. The need for a 
waiver was not determined until after the supplier of the overhead 
bridge crane confirmed that there was no domestically made 40 lb/yd 
crane railing available to meet the project specifications. 
Accordingly, EPA will evaluate the request as a timely 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.'' Taos has

[[Page 67967]]

incorporated specific technical design requirements for installation of 
crane rail at its WWTP. 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 Taos, 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 Taos 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 Taos' 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, Taos is 
hereby granted a waiver from the Buy American requirements of ARRA, 
Section 1605(a) of Public Law 111-5 for the purchase of ``40 lb/yd 
crane railing'' using ARRA funds, as specified in Taos' 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: October 18, 2010.
Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2010-27879 Filed 11-3-10; 8:45 am]
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