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 Bridgeport (the City) Washington, 32179-32181 [2010-13529]
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Federal Register / Vol. 75, No. 108 / Monday, June 7, 2010 / Notices
quantitative analyses that have been
conducted as part of the review of the
National Ambient Air Quality Standards
(NAAQS) for carbon monoxide (CO).
DATES: The REA will be available on or
about May 28, 2010.
ADDRESSES: The document will be
available primarily via the Internet at
the following Web site: https://
www.epa.gov/ttn/naaqs/standards/co/
s_co_index.html.
FOR FURTHER INFORMATION CONTACT: For
questions related to this document,
please contact Dr. Deirdre Murphy,
Office of Air Quality Planning and
Standards (Mail code C504–06), U.S.
Environmental Protection Agency,
Research Triangle Park, NC 27711; email: murphy.deirdre@epa.gov;
telephone: 919–541–0729; fax: 919–
541–0237.
SUPPLEMENTARY INFORMATION: Under
section 108(a) of the Clean Air Act
(CAA), the Administrator identifies and
lists certain pollutants which ‘‘cause or
contribute to air pollution which may
reasonably be anticipated to endanger
public health or welfare.’’ The EPA then
issues air quality criteria for these listed
pollutants, which are commonly
referred to as ‘‘criteria pollutants.’’ The
air quality criteria are to ‘‘accurately
reflect the latest scientific knowledge
useful in indicating the kind and extent
of all identifiable effects on public
health or welfare which may be
expected from the presence of [a]
pollutant in the ambient air, in varying
quantities.’’ Under section 109 of the
CAA, EPA establishes primary (healthbased) and secondary (welfare-based)
NAAQS for pollutants for which air
quality criteria are issued. Section
109(d) of the CAA requires periodic
review and, if appropriate, revision of
existing air quality criteria. The revised
air quality criteria reflect advances in
scientific knowledge on the effects of
the pollutant on public health or
welfare. The EPA is also required to
periodically review and revise the
NAAQS, if appropriate, based on the
revised criteria.
Presently, EPA is reviewing the
NAAQS for CO. The EPA’s overall plan
and schedule for this review is
presented in the Plan for Review of the
National Ambient Air Quality
Standards for Carbon Monoxide.1 A
draft of this integrated review plan was
released for public review and comment
in March 2008 and was the subject of a
consultation with the Clean Air
Scientific Advisory Committee (CASAC)
on April 8, 2008 (73 FR 12998).
Comments received from that
consultation and from the public were
considered in finalizing the plan for the
review.
As part of EPA’s review of the
primary (health-based) CO NAAQS, the
Agency has conducted qualitative and
quantitative assessments characterizing
the health risks associated with
exposure to ambient CO. The EPA’s
plans for conducting these assessments,
including the proposed scope and
methods of the analyses, were presented
in a planning document titled, Carbon
Monoxide National Ambient Air Quality
Standards: Scope and Methods Plan for
Health Risk and Exposure Assessment
(Scope and Methods Plan). This
planning document was released for
public comment in April 2009 and was
the subject of a consultation with the
CASAC on May 13, 2009 (74 FR 15265).
First and second external review drafts
of the REA were released for CASAC
review and public comment in October
2009 (74 FR 55843) and February 2010
(75 FR 10252), respectively, and were
the subjects of CASAC review meetings
in November 2009 (74 FR 54042) and
March 2010 (75 FR 9206), respectively.
In preparing the final REA, EPA has
considered comments received from
CASAC and the public on these earlier
draft documents. The REA document
announced today conveys the
approaches taken to assess exposures to
ambient CO and to characterize
associated health risks, as well as
presents key results, observations, and
related uncertainties associated with the
quantitative analyses performed. This
document will be available on or about
May 28, 2010, through the Agency’s
Technology Transfer Network (TTN)
Web site at https://www.epa.gov/ttn/
naaqs/standards/co/s_co_index.html.
This document may be accessed in the
‘‘Documents from Current Review’’
section under ‘‘Risk and Exposure
Assessments.’’
Dated: May 27, 2010.
Jennifer Noonan Edmonds,
Acting Director, Office of Air Quality Planning
and Standards.
[FR Doc. 2010–13620 Filed 6–4–10; 8:45 am]
BILLING CODE 6560–50–P
1 EPA 452R–08–005; August 2008; Available:
https://www.epa.gov/ttn/naaqs/standards/co/s_
co_cr_pd.html.
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32179
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9159–6]
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 Bridgeport (the City)
Washington
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: The Regional Administrator
of EPA Region 10 is hereby granting a
late waiver request from the Buy
America requirements of ARRA section
1605(a) under the authority of section
1605(b)(1) [applying subsection (a)
would be inconsistent with the public
interest] to the City for the purchase and
use of 280 linear feet of large diameter
36″ PVC pipe, manufactured in
Edmonton, Alberta, Canada and which
was used in and incorporated into an
ARRA project prior to December 3,
2009. This is a project specific waiver
and only applies to the use of the
specified product for the ARRA project
discussed in this notice. Any other
ARRA recipient that wishes to use the
same product must apply for a separate
waiver based on project specific
circumstances. The City’s waiver
request included a timeline summary
from October 3, 2009 thru December 30,
2009 describing the attempted Buy
American compliance by the applicant,
consulting engineer, contractor and
pipeline materials supplier. Thus, it
appears that the supplier on behalf of
the City, the ARRA recipient, did an
extensive, seemingly comprehensive,
and ultimately unsuccessful search for a
U.S. manufacturer who could meet the
project specifications.
The Regional Administrator is making
this determination based on the review
and recommendations of the Drinking
Water Unit. The City has provided
sufficient documentation to support
their request.
DATES: Effective Date: May 25, 2010.
FOR FURTHER INFORMATION CONTACT:
Johnny Clark, DWSRF ARRA Program
Management Analyst, Drinking Water
Unit, Office of Water & Watersheds
(OWW), (206) 553–0082, U.S. EPA
Region 10 (OWW–136), 1200 Sixth
Avenue, Suite 900, Seattle, WA 98101.
SUPPLEMENTARY INFORMATION: In
accordance with ARRA Section 1605(c)
and OMB’s regulations at 2 CFR Part
176, Subpart B, the EPA hereby
provides notice that it is granting a late
project waiver request of the
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Federal Register / Vol. 75, No. 108 / Monday, June 7, 2010 / Notices
requirements of Section 1605(a) of
Public Law 111–5, Buy American
requirements, to the City for the
purchase and use of 280 linear feet of
large diameter 36″ PVC pipe,
manufactured in Edmonton, Alberta,
Canada, which was incorporated into an
ARRA project prior to December 3,
2009. The City was unable to find an
American manufacturer to meet the
project specific requirements for what
by industry’s standards is a small
amount of large diameter 36″ PVC pipe.
There are several noteworthy factors
regarding this waiver analysis. First, it
is a late request because the waiver
request came after the goods had been
used in the project. Second, under 2
CFR 176.130(c)(1), the applicable noncompliance provision regarding
unauthorized use of foreign
manufactured goods, EPA is authorized
to process a waiver under 2 CFR
176.120(a) if ‘‘the need for such
determination otherwise was not
reasonably foreseeable.’’ EPA has further
outlined this process in its April 28,
2009 memorandum: Implementation of
Buy American provisions of Public Law
111–5, the ‘‘American Recovery and
Reinvestment Act of 2009’’ (the April 28
memorandum). Third, EPA has
determined that the reason the City did
not seek a waiver when they procured
the foreign pipe was based on a
mistaken interpretation of the
international agreements provision of
section 1605(d). However, at the time of
that mistake, Bridgeport had done all
due diligence in seeking a U.S.-made
alternative and had developed all
necessary information to support an
availability waiver at that time. Fourth,
EPA has determined, with the assistance
of a technical review produced by its
national contractor, that the
documentation the City developed in
the course of due diligence conducted at
the time of that mistake and subsequent
due diligence upon learning of the
mistaken interpretation of section
1605(d) was sufficient to support both a
determination by EPA that the City
implemented the requirements of
Section 1605 in good faith and the grant
of a waiver by EPA. Fifth, EPA has
determined under these circumstances
that the need for such a waiver was not
reasonably foreseeable. Therefore, under
the authority of 2 CFR 176.120 and
176.130(c)(1), and as explained in the
April 28 memorandum, EPA will
process the waiver request as if it was
requested in a timely manner. Sixth,
EPA has determined that it would have
evaluated a waiver request had the
recipient applied for a waiver prior to
using the foreign pipe in the ARRA
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project. EPA has determined that
granting this waiver will serve the
public interest because it avoids
penalizing the City for the use of a nonU.S.-made good for which the City has
sufficiently established that there were
no U.S.-made alternatives. And, this
determination takes into account the
City’s due diligence and good faith
effort to implement the requirements of
section 1605.
The non-compliant pipe was installed
due to the City’s pipeline materials
supplier’s (United Pipe & Supply)
assumption and interpretation that the
Canadian-manufactured pipe was
acceptable under the North American
Free Trade Agreement (NAFTA). The
pipeline materials supplier, on behalf of
the City, completed an unsuccessful
search for a U.S. manufacturer that
could meet the project specifications
and timeline after the pipe was
installed. The City’s waiver request
dated January 4, 2010, describes actions
taken with regards to the attempted Buy
American compliance by the applicant,
consulting engineer, contractor, pipeline
materials supplier, and EPA Region 10.
The memorandum notes that ‘‘While an
honest oversight was made by the
supplier, it is apparent that not only
could their domestic manufacturer not
supply the material, but all other
American companies were and are
unable to do so’’.
A Canadian-manufactured 280 linear
feet of large diameter 36″ PVC pipe was
installed as part of the applicant’s
ARRA project between October 13, 2009
and December 3, 2009. Prior to the
installation, United Pipe & Supply had
intended to use pipe manufactured
domestically and supplied by JM Eagle,
based in Los Angeles, California.
However, the specified pipe was
unavailable and JM Eagle required an
order of 5,000 linear feet of pipe to run
production. Only 280 feet was needed
for the project. JM Eagle was able to
supply sun bleached pipe, but this
option would not meet specifications for
the project. United Pipe & Supply
conducted its own search for domestic
manufacturers. The pipeline material
supplier contacted manufacturer
representatives from five manufacturers:
Vinyl Tech, Crestline, Royal Group, and
IPEX, based in Phoenix, Arizona,
Chehalis, Washington, Woodbridge,
Ontario, and Toronto, Ontario,
respectively. Only IPEX, in addition to
JM Eagle, had the capacity to produce
this specific large-diameter pipe, and
only IPEX had the pipe in stock. The
pipe was purchased from IPEX and
installed prior to December 3, 2009. A
subsequent request for a Buy American
certification uncovered that the specific
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IPEX pipe was manufactured in
Edmonton, Alberta, Canada. At that
time, United Pipe & Supply believed
that although the pipe was
manufactured in Canada, it ‘‘would be
an acceptable option under NAFTA,’’
and that ‘‘the interpretation [that] the
‘obligation’ of the act did not apply
since this project was under the
threshold of the [$]7.443 million
dollars.’’ United Pipe & Supply was later
informed by its attorney that it
misunderstood the interaction between
ARRA and NAFTA. EPA Region 10
asked the applicant to research ‘‘the
domestic availability of this material
and gather documentation.’’ On
December 29, 2009, United Pipe &
Supply contacted IPEX, in addition to
the three domestic suppliers JM Eagle,
Diamond Plastics (Grand Island,
Nebraska), and North American Pipe
(Houston, Texas), to inquire about the
general availability of the pipe.
Diamond Plastics did not have the
requested amount of pipe in stock and
required a minimum order
(approximately 4,000 feet) to run
production. North American Pipe also
did not have any in stock and would not
produce such a limited amount of pipe.
To confirm these findings on domestic
suppliers, United Pipe & Supply
contacted the Uni-Bell PVC Pipe
Association, the North American
association of PVC pipe manufacturers.
A regional representative of the
organization confirmed these findings.
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 is produced in the
United States unless a waiver is
provided to the recipient by EPA. A
waiver may be provided under section
1605(b) 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.
This ARRA-funded project involved
installation of new PVC pipe used as a
contact chamber in an effort to provide
sufficient chlorination to the
distribution system, thereby allowing
the City to continue providing water
disinfection to the consumers. A
primary water supply well for the City
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WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Federal Register / Vol. 75, No. 108 / Monday, June 7, 2010 / Notices
was shown to be hydraulically
connected to the Columbia River and
chlorination was required. Prior to
installation of the Canadianmanufactured PVC pipe and completion
of the proposed project, the distribution
system configuration did not allow for
sufficient chlorine contact time.
Without the appropriate contact time,
the disinfection process could not have
been completed prior to water reaching
the consumers. The project originally
estimated the need for 340 linear feet of
large diameter 36″ pipe to allow for
ample and sufficient chlorine contact
time to provide treatment and
disinfection to the water however, after
additional engineering analysis, it was
noted that only 280 linear feet was
needed for project specifications. EPA
finds these considerations as stated by
the City provide ample functional
justification for their specification.
The April 28 memorandum defines
‘‘public interest’’ as those cases which
possibly involve national implications
of such a waiver. Based on additional
research by EPA’s consulting contractor
(Cadmus), and to the best of the
Region’s knowledge at this time, the
City attempted without success, to meet
the Buy American requirements.
Furthermore, the purpose of the ARRA
provisions is to stimulate economic
recovery by funding current
infrastructure construction, not to delay
projects that are already shovel ready by
requiring entities, like the City, to revise
their design or potentially choose a
more costly and less effective project.
The imposition of ARRA Buy American
requirements on such projects eligible
for DWSRF 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 the most
fundamental economic purposes of
ARRA; to create or retain jobs.
The Drinking Water Unit has
reviewed this waiver request and has
determined that the supporting
documentation provided by the City is
sufficient to meet the following criteria
listed under section 1605(b) and in the
April 28 memorandum: Applying the
Buy American requirements of ARRA
would be inconsistent with the public
interest.
The basis for this project waiver is the
authorization provided in section
1605(b)(1), due to the lack of any U.S.
production of what by industry’s
standards is a small amount (280 linear
feet) of large diameter 36″ PVC pipe, in
order to meet the City’s design schedule
and specifications. The March 31, 2009,
Delegation of Authority Memorandum
provided Regional Administrators with
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32181
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 reviewed all available
documentation, statements, invoices,
and related correspondence, EPA has
established both a proper basis to
specify the particular good required for
this project, and that categorization of
similar waiver requests from Gwinnett
County, GA (granted 12/18/09) and Old
Town, ME (granted 2/12/10) when the
manufactured goods involved there had
already been used in and incorporated
into the ARRA project, that EPA has
evaluated and considered the City’s
waiver request as of January 4, 2010 to
be considered under section 1605(b)(1)
authority for public interest waivers.
The City is hereby granted a waiver
from the Buy American requirements of
section 1605(a) of Public Law 111–5 for
the purchase of 280 linear feet of large
diameter 36″ PVC pipe. This
supplementary information constitutes
the detailed written justification
required by section 1605(c) for waivers
based on a finding under subsection (b).
President) 701 East Byrd Street,
Richmond, Virginia 23261–4528:
1. Carlyle Financial Services Harbor,
L.P., Washington, D.C.; CGFSP
Coinvestment, L.P.; Carlyle Global
Partner Master Coinvestment Cayman,
L.P.; Carlyle Global Financial Services
Partners, L.P.; TCG Financial Services,
L.P.; Carlyle Financial Services, Ltd.; TC
Group Cayman Investment Holdings,
L.P.; TCG Holdings Cayman II, L.P.;
DBD Cayman, Limited; TCG Financial
Services Investment Holdings, L.P.; and
Carlyle Financial Services Holdings,
Ltd., all of Grand Cayman, Cayman
Islands; Daniel A. D’ Aniello; William E.
Conway, Jr.; and David M. Rubenstein,
all of Washington, D.C.; and Carlyle
Investment Management, L.L.C.; TC
Group, L.L.C.; and TCG Holdings,
L.L.C., all of Wilmington, Delaware; to
acquire voting shares of Hampton Roads
Bankshares, Inc., Norfolk, Virginia, and
thereby indirectly acquire voting shares
of Shore Bank, Onley, Virginia.
Authority: Public Law 111–5, section
1605.
BILLING CODE 6210–01–S
Dated: May 25, 2010.
Dennis J. McLerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2010–13529 Filed 6–4–10; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL RESERVE SYSTEM
Change in Bank Control Notices;
Acquisition of Shares of Bank or Bank
Holding Companies
The notificants listed below have
applied under the Change in Bank
Control Act (12 U.S.C. 1817(j)) and
§ 225.41 of the Board’s Regulation Y (12
CFR 225.41) to acquire a bank or bank
holding company. The factors that are
considered in acting on the notices are
set forth in paragraph 7 of the Act (12
U.S.C. 1817(j)(7)).
The notices are available for
immediate inspection at the Federal
Reserve Bank indicated. The notices
also will be available for inspection at
the office of the Board of Governors.
Interested persons may express their
views in writing to the Reserve Bank
indicated for that notice or to the offices
of the Board of Governors. Comments
must be received not later than June 22,
2010.
A. Federal Reserve Bank of
Richmond (A. Linwood Gill, III, Vice
PO 00000
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Board of Governors of the Federal Reserve
System, June 2, 2010.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. 2010–13541 Filed 6–4–10; 8:45 am]
FEDERAL RESERVE SYSTEM
Formations of, Acquisitions by, and
Mergers of Bank Holding Companies
The companies listed in this notice
have applied to the Board for approval,
pursuant to the Bank Holding Company
Act of 1956 (12 U.S.C. 1841 et seq.)
(BHC Act), Regulation Y (12 CFR Part
225), and all other applicable statutes
and regulations to become a bank
holding company and/or to acquire the
assets or the ownership of, control of, or
the power to vote shares of a bank or
bank holding company and all of the
banks and nonbanking companies
owned by the bank holding company,
including the companies listed below.
The applications listed below, as well
as other related filings required by the
Board, are available for immediate
inspection at the Federal Reserve Bank
indicated. The applications also will be
available for inspection at the offices of
the Board of Governors. Interested
persons may express their views in
writing on the standards enumerated in
the BHC Act (12 U.S.C. 1842(c)). If the
proposal also involves the acquisition of
a nonbanking company, the review also
includes whether the acquisition of the
nonbanking company complies with the
standards in section 4 of the BHC Act
(12 U.S.C. 1843). Unless otherwise
noted, nonbanking activities will be
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]]>Agencies
[Federal Register Volume 75, Number 108 (Monday, June 7, 2010)]
[Notices]
[Pages 32179-32181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13529]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9159-6]
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 Bridgeport (the City) Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting
a late waiver request from the Buy America requirements of ARRA section
1605(a) under the authority of section 1605(b)(1) [applying subsection
(a) would be inconsistent with the public interest] to the City for the
purchase and use of 280 linear feet of large diameter 36'' PVC pipe,
manufactured in Edmonton, Alberta, Canada and which was used in and
incorporated into an ARRA project prior to December 3, 2009. This is a
project specific waiver and only applies to the use of the specified
product for the ARRA project discussed in this notice. Any other ARRA
recipient that wishes to use the same product must apply for a separate
waiver based on project specific circumstances. The City's waiver
request included a timeline summary from October 3, 2009 thru December
30, 2009 describing the attempted Buy American compliance by the
applicant, consulting engineer, contractor and pipeline materials
supplier. Thus, it appears that the supplier on behalf of the City, the
ARRA recipient, did an extensive, seemingly comprehensive, and
ultimately unsuccessful search for a U.S. manufacturer who could meet
the project specifications.
The Regional Administrator is making this determination based on
the review and recommendations of the Drinking Water Unit. The City has
provided sufficient documentation to support their request.
DATES: Effective Date: May 25, 2010.
FOR FURTHER INFORMATION CONTACT: Johnny Clark, DWSRF ARRA Program
Management Analyst, Drinking Water Unit, Office of Water & Watersheds
(OWW), (206) 553-0082, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and
OMB's regulations at 2 CFR Part 176, Subpart B, the EPA hereby provides
notice that it is granting a late project waiver request of the
[[Page 32180]]
requirements of Section 1605(a) of Public Law 111-5, Buy American
requirements, to the City for the purchase and use of 280 linear feet
of large diameter 36'' PVC pipe, manufactured in Edmonton, Alberta,
Canada, which was incorporated into an ARRA project prior to December
3, 2009. The City was unable to find an American manufacturer to meet
the project specific requirements for what by industry's standards is a
small amount of large diameter 36'' PVC pipe.
There are several noteworthy factors regarding this waiver
analysis. First, it is a late request because the waiver request came
after the goods had been used in the project. Second, under 2 CFR
176.130(c)(1), the applicable non-compliance provision regarding
unauthorized use of foreign manufactured goods, EPA is authorized to
process a waiver under 2 CFR 176.120(a) if ``the need for such
determination otherwise was not reasonably foreseeable.'' EPA has
further outlined this process in its April 28, 2009 memorandum:
Implementation of Buy American provisions of Public Law 111-5, the
``American Recovery and Reinvestment Act of 2009'' (the April 28
memorandum). Third, EPA has determined that the reason the City did not
seek a waiver when they procured the foreign pipe was based on a
mistaken interpretation of the international agreements provision of
section 1605(d). However, at the time of that mistake, Bridgeport had
done all due diligence in seeking a U.S.-made alternative and had
developed all necessary information to support an availability waiver
at that time. Fourth, EPA has determined, with the assistance of a
technical review produced by its national contractor, that the
documentation the City developed in the course of due diligence
conducted at the time of that mistake and subsequent due diligence upon
learning of the mistaken interpretation of section 1605(d) was
sufficient to support both a determination by EPA that the City
implemented the requirements of Section 1605 in good faith and the
grant of a waiver by EPA. Fifth, EPA has determined under these
circumstances that the need for such a waiver was not reasonably
foreseeable. Therefore, under the authority of 2 CFR 176.120 and
176.130(c)(1), and as explained in the April 28 memorandum, EPA will
process the waiver request as if it was requested in a timely manner.
Sixth, EPA has determined that it would have evaluated a waiver request
had the recipient applied for a waiver prior to using the foreign pipe
in the ARRA project. EPA has determined that granting this waiver will
serve the public interest because it avoids penalizing the City for the
use of a non-U.S.-made good for which the City has sufficiently
established that there were no U.S.-made alternatives. And, this
determination takes into account the City's due diligence and good
faith effort to implement the requirements of section 1605.
The non-compliant pipe was installed due to the City's pipeline
materials supplier's (United Pipe & Supply) assumption and
interpretation that the Canadian-manufactured pipe was acceptable under
the North American Free Trade Agreement (NAFTA). The pipeline materials
supplier, on behalf of the City, completed an unsuccessful search for a
U.S. manufacturer that could meet the project specifications and
timeline after the pipe was installed. The City's waiver request dated
January 4, 2010, describes actions taken with regards to the attempted
Buy American compliance by the applicant, consulting engineer,
contractor, pipeline materials supplier, and EPA Region 10. The
memorandum notes that ``While an honest oversight was made by the
supplier, it is apparent that not only could their domestic
manufacturer not supply the material, but all other American companies
were and are unable to do so''.
A Canadian-manufactured 280 linear feet of large diameter 36'' PVC
pipe was installed as part of the applicant's ARRA project between
October 13, 2009 and December 3, 2009. Prior to the installation,
United Pipe & Supply had intended to use pipe manufactured domestically
and supplied by JM Eagle, based in Los Angeles, California. However,
the specified pipe was unavailable and JM Eagle required an order of
5,000 linear feet of pipe to run production. Only 280 feet was needed
for the project. JM Eagle was able to supply sun bleached pipe, but
this option would not meet specifications for the project. United Pipe
& Supply conducted its own search for domestic manufacturers. The
pipeline material supplier contacted manufacturer representatives from
five manufacturers: Vinyl Tech, Crestline, Royal Group, and IPEX, based
in Phoenix, Arizona, Chehalis, Washington, Woodbridge, Ontario, and
Toronto, Ontario, respectively. Only IPEX, in addition to JM Eagle, had
the capacity to produce this specific large-diameter pipe, and only
IPEX had the pipe in stock. The pipe was purchased from IPEX and
installed prior to December 3, 2009. A subsequent request for a Buy
American certification uncovered that the specific IPEX pipe was
manufactured in Edmonton, Alberta, Canada. At that time, United Pipe &
Supply believed that although the pipe was manufactured in Canada, it
``would be an acceptable option under NAFTA,'' and that ``the
interpretation [that] the `obligation' of the act did not apply since
this project was under the threshold of the [$]7.443 million dollars.''
United Pipe & Supply was later informed by its attorney that it
misunderstood the interaction between ARRA and NAFTA. EPA Region 10
asked the applicant to research ``the domestic availability of this
material and gather documentation.'' On December 29, 2009, United Pipe
& Supply contacted IPEX, in addition to the three domestic suppliers JM
Eagle, Diamond Plastics (Grand Island, Nebraska), and North American
Pipe (Houston, Texas), to inquire about the general availability of the
pipe. Diamond Plastics did not have the requested amount of pipe in
stock and required a minimum order (approximately 4,000 feet) to run
production. North American Pipe also did not have any in stock and
would not produce such a limited amount of pipe. To confirm these
findings on domestic suppliers, United Pipe & Supply contacted the Uni-
Bell PVC Pipe Association, the North American association of PVC pipe
manufacturers. A regional representative of the organization confirmed
these findings.
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 is produced in the
United States unless a waiver is provided to the recipient by EPA. A
waiver may be provided under section 1605(b) 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.
This ARRA-funded project involved installation of new PVC pipe used
as a contact chamber in an effort to provide sufficient chlorination to
the distribution system, thereby allowing the City to continue
providing water disinfection to the consumers. A primary water supply
well for the City
[[Page 32181]]
was shown to be hydraulically connected to the Columbia River and
chlorination was required. Prior to installation of the Canadian-
manufactured PVC pipe and completion of the proposed project, the
distribution system configuration did not allow for sufficient chlorine
contact time. Without the appropriate contact time, the disinfection
process could not have been completed prior to water reaching the
consumers. The project originally estimated the need for 340 linear
feet of large diameter 36'' pipe to allow for ample and sufficient
chlorine contact time to provide treatment and disinfection to the
water however, after additional engineering analysis, it was noted that
only 280 linear feet was needed for project specifications. EPA finds
these considerations as stated by the City provide ample functional
justification for their specification.
The April 28 memorandum defines ``public interest'' as those cases
which possibly involve national implications of such a waiver. Based on
additional research by EPA's consulting contractor (Cadmus), and to the
best of the Region's knowledge at this time, the City attempted without
success, to meet the Buy American requirements. Furthermore, the
purpose of the ARRA provisions is to stimulate economic recovery by
funding current infrastructure construction, not to delay projects that
are already shovel ready by requiring entities, like the City, to
revise their design or potentially choose a more costly and less
effective project. The imposition of ARRA Buy American requirements on
such projects eligible for DWSRF 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
the most fundamental economic purposes of ARRA; to create or retain
jobs.
The Drinking Water Unit has reviewed this waiver request and has
determined that the supporting documentation provided by the City is
sufficient to meet the following criteria listed under section 1605(b)
and in the April 28 memorandum: Applying the Buy American requirements
of ARRA would be inconsistent with the public interest.
The basis for this project waiver is the authorization provided in
section 1605(b)(1), due to the lack of any U.S. production of what by
industry's standards is a small amount (280 linear feet) of large
diameter 36'' PVC pipe, in order to meet the City's design schedule and
specifications. 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 reviewed all available documentation, statements,
invoices, and related correspondence, EPA has established both a proper
basis to specify the particular good required for this project, and
that categorization of similar waiver requests from Gwinnett County, GA
(granted 12/18/09) and Old Town, ME (granted 2/12/10) when the
manufactured goods involved there had already been used in and
incorporated into the ARRA project, that EPA has evaluated and
considered the City's waiver request as of January 4, 2010 to be
considered under section 1605(b)(1) authority for public interest
waivers. The City is hereby granted a waiver from the Buy American
requirements of section 1605(a) of Public Law 111-5 for the purchase of
280 linear feet of large diameter 36'' PVC pipe. 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.
Dated: May 25, 2010.
Dennis J. McLerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2010-13529 Filed 6-4-10; 8:45 am]
BILLING CODE 6560-50-P
