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###### Environmental Protection Agency

          - [FRL-8921-1]

# 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 in sufficient and reasonably available quantities and of a satisfactory quality] to the Auburn, Maine Sewerage District for the purchase of specialized ductile iron spring loaded hinged 24″ diameter sanitary manhole covers and frames (                        *i.e.,*                         “REXUS #62114 24S or equal”). These manhole covers and frames are manufactured outside of the United States by Saint-Gobain, a company based in France, and meet the District's technical specifications, which have been in use for at least the past five years. The Acting Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. The Auburn, Maine Sewerage District 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 specific ductile iron manhole covers and frames for the proposed project being implemented by the Auburn, Maine Sewerage District.                    

# DATES:

*Effective Date:*                         May 13, 2009.                    

# FOR FURTHER INFORMATION CONTACT:

Katie Connors, Environmental Engineer, (617) 918-1658, or David Chin, Environmental Engineer, (617) 918-1764, Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), U.S. EPA, One Congress Street, CMU, Boston, MA 02114.

# 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 the Auburn, Maine Sewerage District for the acquisition of specialized ductile iron spring loaded hinged 24″ diameter sanitary manhole covers and frames (                    *i.e.,*                     “REXUS #62114 24S or equal”) manufactured outside of the United States by Saint-Gobain, a company based in France.                

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 Auburn, Maine Sewerage District has stated that for at least the past five years it has standardized its manhole cover procurement on ductile iron covers and integrated frames. The District has utilized specialized 24″ diameter spring loaded hinged ductile iron sanitary manhole covers and frames (                    *i.e.,*                     “REXUS #62114 24S or equal”) within its collection system. The reasons for the District's standard include:                

                    (1) The product is more durable in a colder climate than comparable cast iron products; and (2) a spring loaded hinged and locking cover is much more secure and safer (                    *e.g.*                     the cover will not flip off when hit by a larger vehicle and will automatically lock in the vertical position to avoid inadvertent closure).                

                    The District's submission clearly articulates entirely functional reasons for its technical specifications, and has                           ( print page 29484)                        provided sufficient documentation that the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantity and of a satisfactory quality to meet its technical specifications.                

                    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”. Based on conversations with the District, the technical design specifications for the manhole cover and frame were provided separately to all of the interested contractors prior to bid to ensure that materials would meet the District's standard specifications.                

The District has provided information to the EPA representing that there are currently no ductile iron manhole frames and covers manufactured in the United States that have the exact same product specifications in place. The District has also provided certification from its supplier representing that there are no other ductile iron manhole covers and frames from a domestic manufacturer to meet the District's exact specifications.

                    Based on additional research (                    *i.e.*                     Internet product literature search and follow-up telephone calls) conducted by the Municipal Assistance Unit and to the best of the Region's knowledge at the time of the review, there do not appear to be other manhole covers and frames available to meet the District's exact technical specifications. There is one domestic manufacturer that has a product that appears to have most of the same attributes (                    *e.g.*                     ductile iron cover and frame, hinged cover, and a locking capability). However, based on information provided to the EPA at the time of the review, it did not have the spring loaded feature for its 24″ diameter manhole cover.                

Furthermore, 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 Auburn, Maine Sewerage District, 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 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 Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the Auburn, Maine Sewerage District is sufficient to meet the criteria listed under Section 1605(b) 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). 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 District's technical specifications, 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 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 Auburn, Maine Sewerage District is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of ductile iron manhole covers and frames using ARRA funds as specified in the District's request of April 6, 2009. 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.

June 8, 2009.

Ira W. Leighton,

Acting Regional Administrator, Region I, New England.

[FR Doc. E9-14600 Filed 6-19-09; 8:45 am]

BILLING CODE 6560-50-P