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 Seattle (the City), WA, 6614-6616 [2011-2606]
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6614
Federal Register / Vol. 76, No. 25 / Monday, February 7, 2011 / Notices
Online service, please e-mail
FERCOnlineSupport@ferc.gov or call
(866) 208–3676 (toll free). For TTY, call
(202) 502–8659.
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. ER11–2765–000]
Elk Wind Energy, LLC; Supplemental
Notice That Initial Market-Based Rate
Filing Includes Request for Blanket
Section 204 Authorization
emcdonald on DSK2BSOYB1PROD with NOTICES
This is a supplemental notice in the
above-referenced proceeding of Elk
Wind Energy, LLC’s application for
market-based rate authority, with an
accompanying rate tariff, noting that
such application includes a request for
blanket authorization, under 18 CFR
Part 34, of future issuances of securities
and assumptions of liability.
Any person desiring to intervene or to
protest should file with the Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426,
in accordance with Rules 211 and 214
of the Commission’s Rules of Practice
and Procedure (18 CFR 385.211 and
385.214). Anyone filing a motion to
intervene or protest must serve a copy
of that document on the Applicant.
Notice is hereby given that the
deadline for filing protests with regard
to the applicant’s request for blanket
authorization, under 18 CFR part 34, of
future issuances of securities and
assumptions of liability, is February 22,
2011.
The Commission encourages
electronic submission of protests and
interventions in lieu of paper, using the
FERC Online links at https://
www.ferc.gov. To facilitate electronic
service, persons with Internet access
who will eFile a document and/or be
listed as a contact for an intervenor
must create and validate an
eRegistration account using the
eRegistration link. Select the eFiling
link to log on and submit the
intervention or protests.
Persons unable to file electronically
should submit an original and 14 copies
of the intervention or protest to the
Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC
20426.
The filings in the above-referenced
proceeding are accessible in the
Commission’s eLibrary system by
clicking on the appropriate link in the
above list. They are also available for
review in the Commission’s Public
Reference Room in Washington, DC.
There is an eSubscription link on the
Web site that enables subscribers to
receive e-mail notification when a
document is added to a subscribed
docket(s). For assistance with any FERC
17:16 Feb 04, 2011
[FR Doc. 2011–2632 Filed 2–4–11; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
January 31, 2011.
VerDate Mar<15>2010
Nathaniel J. Davis, Sr.,
Deputy Secretary.
Jkt 223001
Federal Energy Regulatory
Commission
[Docket No. RM98–1–000]
Records Governing Off-the-Record
Communications; Public Notice
January 31, 2011.
This constitutes notice, in accordance
with 18 CFR 385.2201(b), of the receipt
of prohibited and exempt off-the-record
communications.
Order No. 607 (64 FR 51222,
September 22, 1999) requires
Commission decisional employees, who
make or receive a prohibited or exempt
off-the-record communication relevant
to the merits of a contested proceeding,
to deliver to the Secretary of the
Commission, a copy of the
communication, if written, or a
summary of the substance of any oral
communication.
Prohibited communications are
included in a public, non-decisional file
associated with, but not a part of, the
decisional record of the proceeding.
Unless the Commission determines that
the prohibited communication and any
responses thereto should become a part
of the decisional record, the prohibited
off-the-record communication will not
be considered by the Commission in
reaching its decision. Parties to a
proceeding may seek the opportunity to
respond to any facts or contentions
made in a prohibited off-the-record
communication, and may request that
the Commission place the prohibited
communication and responses thereto
in the decisional record. The
Commission will grant such a request
only when it determines that fairness so
requires. Any person identified below as
having made a prohibited off-the-record
communication shall serve the
document on all parties listed on the
official service list for the applicable
proceeding in accordance with Rule
2010, 18 CFR 385.2010.
Exempt off-the-record
communications are included in the
decisional record of the proceeding,
unless the communication was with a
cooperating agency as described by 40
PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
CFR 1501.6, made under 18 CFR
385.2201(e)(1)(v).
The following is a list of off-therecord communications recently
received by the Secretary of the
Commission. The communications
listed are grouped by docket numbers in
ascending order. These filings are
available for review at the Commission
in the Public Reference Room or may be
viewed on the Commission’s Web site at
https://www.ferc.gov using the eLibrary
link. Enter the docket number,
excluding the last three digits, in the
docket number field to access the
document. For assistance, please contact
FERC, Online Support at
FERCOnlineSupport@ferc.gov or toll
free at (866) 208–3676, or for TTY,
contact (202) 502–8659.
Exempt:
Docket No.
File date
Presenter or
requester
1. P–2713–000
1–20–11
John Baummer 1
1 Telephone
record.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011–2631 Filed 2–4–11; 8:45 am]
BILLING CODE 6717–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9262–4]
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 Seattle (the City), WA
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The Regional Administrator
of EPA Region 10 is hereby granting a
waiver of the Buy American
requirements of ARRA Section 1605(a)
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 City of Seattle (the City) for the
purchase of semi-rigid protection boards
(15,600 sheets each measuring 391⁄2″ ×
80″) manufactured in Surrey, British
Columbia, for a hot applied membrane
waterproofing system for a drinking
water reservoir cover. This is a project
specific waiver and only applies to the
use of the specified products for the
ARRA project being proposed. Any
other ARRA recipient that wishes to use
the same product must apply for a
SUMMARY:
E:\FR\FM\07FEN1.SGM
07FEN1
emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 76, No. 25 / Monday, February 7, 2011 / Notices
separate waiver based on project
specific circumstances. The waiver
applicant states that the project requires
semi-rigid protection boards because the
Maple Leaf Reservoir is being covered
by a concrete roof as part of the City’s
reservoir burying program. The City’s
Parks Department will be constructing a
park on the roof of the reservoir. A
waterproofing system will provide a
watertight seal on the reservoir roof
concrete deck. Semi-rigid rubberized
asphaltic fiberglass reinforced
protection board will be incorporated as
part of the roof waterproofing system to
provide a barrier over the waterproofing
membrane to protect the membrane
against damage from the backfill
associated with the construction of the
park, and from the pedestrian and
vehicular activity associated with the
use and maintenance of the park.
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: January 31, 2011.
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),
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 for the semirigid protection boards (15,600 sheets
each measuring 391⁄2″ × 80″)
manufactured in Surrey, British
Columbia, for a hot applied membrane
waterproofing system for a drinking
water reservoir cover. The applicant
indicates that semi-rigid protection
board is required on the roof of the
drinking water supply reservoir to
obtain a twenty (20) year warranty from
the waterproofing manufacturer. Semirigid protection board is currently being
used at three (3) other reservoirs
operated by the City. Based upon project
specifications, there are no known U.S.
manufactures that manufacture
comparable products. The ARRA
funded project involves water system
improvements at the Maple Leaf
Reservoir. Enhanced moisture
protection is being incorporated into the
reinforced hot-applied waterproofing
system to allow for pedestrian use and
vehicular activity. As part of the
reservoir burying program, the City’s
VerDate Mar<15>2010
17:16 Feb 04, 2011
Jkt 223001
Parks Department will be constructing a
park on the roof of the reservoir. The
City currently has three other reservoirs
which also have the semi-rigid
protection board installed. The City’s
project specification calls for the
reinforced hot applied waterproofing
system. In order to provide equivalent
waterproofing protection similar to the
three other reservoirs within the City,
the City changed the project
specifications in order to ensure
consistency of their reservoir burying
program requirements and to ensure the
semi-rigid protection board’s twenty
(20) year warranty. An inquiry by EPA’s
national contractor (Cadmus) confirmed
there are no known domestic
manufacturers of comparable semi-rigid
protection board that meet all aspects of
the project specification, which is
supported by the available information.
Information received from the
manufacturer on behalf of the City
indicated that an attempt to locate a
domestic manufacturer was done so
unsuccessfully. The manufacturer
added this product to their inventory
and product line some years ago.
According to the manufacturer, their
two domestic suppliers of protection
materials had indicated that they were
unable to manufacture a similar/like
product and nor did either supplier
have knowledge of a similar/like
product manufactured in the U.S. Based
on available information, it is unlikely
that other semi-rigid protection boards
would function within the requirement
of the project specifications.
EPA has also evaluated the City’s
request to determine if its submission is
considered late or if it could be
considered as if it was timely filed, as
per the OMB Guidance at CFR 176.120.
EPA will generally regard waiver
requests with respect to components
that were specified in the bid
solicitation or in a general/primary
construction contact as ‘‘late’’ if
submitted after the contract date.
However, EPA could also determine that
a request be evaluated as timely, though
made after the date that the contract was
signed, if the need for a waiver was not
reasonably foreseeable. If the need for a
waiver is reasonably foreseeable, then
EPA could still apply discretion in these
late cases as per the OMB Guidance,
which says ‘‘the award official may deny
the request.’’ For those waiver requests
that do not have a reasonably
unforeseeable basis for lateness, but for
which the waiver basis is valid and
there is no apparent gain by the ARRA
recipient or loss on behalf of the
government, then EPA will still
consider granting a waiver.
PO 00000
Frm 00020
Fmt 4703
Sfmt 4703
6615
In this case, there are no U.S.
manufacturers that meet the City’s
project specifications for the semi-rigid
protection boards. The waiver request
was submitted after the contract date
due to a design change. The original
project specifications for the protection
course were developed with a standard
design, 80- to 90-mil-(2.0- to 2.3-mm)
thickness, fiberglass reinforced asphalt
or modified bituminous sheet. The
design change and clarification of May
12, 2010 resulted in an upgrade to the
existing protective course requirements,
in order to provide extra reinforcement
and increased puncture resistance,
similar to the three other reservoir
covers previously installed within the
City. The design change was necessary
due to the project’s size and complexity.
The design change also increases
performance of the protection board and
the potential life expectancy of the
project resulting in a twenty year
warranty program. The design change
required the upgrade of the protection
course to a semi-rigid protection board
composed of a rubberized asphalt core,
reinforced with a non-woven fiberglass
mat and sandwiched between two
protective polypropylene layers, with a
minimum nominal thickness of 4.5 mm.
The material supplier and contractor’s
assumption that the protection board
would be acceptable under the North
American Free Trade Agreement
(NAFTA) or the U.S. and Canada Trade
Agreement signed effective February 16,
2010, was made so in error. Therefore,
the City did not submit a waiver request
until November 10, 2010. The City’s
Materials Lab consulted with EPA
personnel and correctly identified that a
waiver would be required for the
protection board. There is no indication
that the City failed to request a waiver
in order to avoid the requirements of the
ARRA, particularly since there are no
domestically manufactured products
that meet the project specification. EPA
will consider the City’s waiver request,
a foreseeable late request, as though it
had been timely made since there is no
gain by the City and no loss by the
government due to the late 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
‘‘satisfactory quality’’ as the quality of
iron, steel or the relevant manufactured
good as specified in the project plans
and design. The City has provided
information to the EPA representing that
there are currently no domestic
manufacturers of the semi-rigid
protection boards that meet the project
E:\FR\FM\07FEN1.SGM
07FEN1
emcdonald on DSK2BSOYB1PROD with NOTICES
6616
Federal Register / Vol. 76, No. 25 / Monday, February 7, 2011 / Notices
specification requirements. Based on
additional research by EPA’s consulting
contractor (Cadmus) and to the best of
the Region’s knowledge at this time,
there does not appear to be any other
manufacturers capable of meeting the
City’s specifications.
Furthermore, the purpose of the
ARRA provisions was 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 and 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, 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 City’s design
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 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 City is hereby granted a waiver from
the Buy American requirements of
Section 1605(a) of Public Law 111–5 for
the purchase semi-rigid protection
boards for a hot applied membrane
waterproofing system (15,600 sheets
each measuring 391⁄2″ × 80″) for a
reservoir cover, manufactured in Surrey,
British Columbia, specified in the City’s
VerDate Mar<15>2010
17:16 Feb 04, 2011
Jkt 223001
waiver request of November 10, 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.
Dated: February 3, 2011.
Dale L. Aultman,
Secretary, Farm Credit Administration Board.
[FR Doc. 2011–2749 Filed 2–3–11; 4:15 pm]
BILLING CODE 6705–01–P
FEDERAL MARITIME COMMISSION
Issued on: Dated: January 31, 2011.
Dennis J. Mclerran,
Regional Administrator, EPA, Region 10.
Notice of Inquiry; Solicitation of Views
on the Impact of Slow Steaming
[FR Doc. 2011–2606 Filed 2–4–11; 8:45 am]
AGENCY:
BILLING CODE 6560–50–P
ACTION:
Federal Maritime Commission.
Notice of Inquiry.
The Federal Maritime
Commission (‘‘FMC’’ or ‘‘Commission’’)
is issuing this Notice of Inquiry (‘‘NOI’’)
to solicit public comment on the impact
of slow steaming on U.S. ocean liner
commerce. Generally, the Commission
seeks public comment as to how the
practice of slow steaming has (1)
Impacted ocean liner carrier operations
and shippers’ international supply
chains; (2) affected the cost and/or price
of ocean liner service; and (3) mitigated
greenhouse gas emissions.
DATES: Responses are due on or before
April 5, 2011.
ADDRESSES: Submit comments to: Karen
V. Gregory, Secretary, Federal Maritime
Commission, 800 North Capitol Street,
NW., Room 1046, Washington, DC
20573–0001.
Or e-mail non-confidential comments
to: secretary@fmc.gov (e-mail comments
as attachments preferably in Microsoft
Word or PDF).
FOR FURTHER INFORMATION CONTACT:
Austin L. Schmitt, Director, Bureau of
Trade Analysis, Federal Maritime
Commission, 800 North Capitol Street,
NW., Washington, DC 20573–0001,
Telephone: (202) 523–5796, E-mail:
aschmitt@fmc.gov.
SUPPLEMENTARY INFORMATION: Submit
Comments: Non-confidential filings may
be submitted in hard copy or by e-mail
as an attachment (preferably in
Microsoft Word or PDF) addressed to
secretary@fmc.gov on or before April 5,
2011. Include in the subject line: ‘‘FMC
Slow Steaming—Response to NOI’’.
Responses to this inquiry that seek
confidential treatment must be
submitted in hard copy by U.S. mail or
courier. Confidential filings must be
accompanied by a transmittal letter that
identifies the filing as ‘‘confidential’’ and
describes the nature and extent of the
confidential treatment requested, e.g.,
commercially sensitive data. When
submitting documents in response to
the NOI that contain confidential
information, the confidential copy of the
filing must consist of the complete filing
and be marked by the filer as
SUMMARY:
FARM CREDIT ADMINISTRATION
Farm Credit Administration Board;
Sunshine Act Meeting
Farm Credit Administration.
Notice is hereby given,
pursuant to the Government in the
Sunshine Act (5 U.S.C. 552b(e)(3)), of
the regular meeting of the Farm Credit
Administration Board (Board).
DATE AND TIME: The regular meeting of
the Board will be held at the offices of
the Farm Credit Administration in
McLean, Virginia, on February 10, 2011,
from 9 a.m. until such time as the Board
concludes its business.
FOR FURTHER INFORMATION CONTACT: Dale
L. Aultman, Secretary to the Farm
Credit Administration Board, (703) 883–
4009, TTY (703) 883–4056.
ADDRESSES: Farm Credit
Administration, 1501 Farm Credit Drive,
McLean, Virginia 22102–5090.
SUPPLEMENTARY INFORMATION: This
meeting of the Board will be open to the
public (limited space available). In order
to increase the accessibility to Board
meetings, persons requiring assistance
should make arrangements in advance.
The matters to be considered at the
meeting are:
AGENCY:
SUMMARY:
Open Session
A. Approval of Minutes
• January 13, 2011
B. New Business
• Spring 2011 Abstract of the Unified
Agenda of Federal Regulatory and
Deregulatory Actions and Spring 2011
Regulatory Performance Plan
• Request of Farm Credit Services of
America, et al., to Form a Limited
Liability Partnership to Facilitate
Agricultural Equipment Financing
Activities
C. Reports
• Office of Management Services
Quarterly Report
PO 00000
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07FEN1
]]>Agencies
[Federal Register Volume 76, Number 25 (Monday, February 7, 2011)]
[Notices]
[Pages 6614-6616]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2606]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9262-4]
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 Seattle (the City), WA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting
a waiver of the Buy American requirements of ARRA Section 1605(a) 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 City of Seattle (the
City) for the purchase of semi-rigid protection boards (15,600 sheets
each measuring 39\1/2\'' x 80'') manufactured in Surrey, British
Columbia, for a hot applied membrane waterproofing system for a
drinking water reservoir cover. This is a project specific waiver and
only applies to the use of the specified products for the ARRA project
being proposed. Any other ARRA recipient that wishes to use the same
product must apply for a
[[Page 6615]]
separate waiver based on project specific circumstances. The waiver
applicant states that the project requires semi-rigid protection boards
because the Maple Leaf Reservoir is being covered by a concrete roof as
part of the City's reservoir burying program. The City's Parks
Department will be constructing a park on the roof of the reservoir. A
waterproofing system will provide a watertight seal on the reservoir
roof concrete deck. Semi-rigid rubberized asphaltic fiberglass
reinforced protection board will be incorporated as part of the roof
waterproofing system to provide a barrier over the waterproofing
membrane to protect the membrane against damage from the backfill
associated with the construction of the park, and from the pedestrian
and vehicular activity associated with the use and maintenance of the
park.
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: January 31, 2011.
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), 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 for the semi-rigid protection boards (15,600
sheets each measuring 39\1/2\'' x 80'') manufactured in Surrey, British
Columbia, for a hot applied membrane waterproofing system for a
drinking water reservoir cover. The applicant indicates that semi-rigid
protection board is required on the roof of the drinking water supply
reservoir to obtain a twenty (20) year warranty from the waterproofing
manufacturer. Semi-rigid protection board is currently being used at
three (3) other reservoirs operated by the City. Based upon project
specifications, there are no known U.S. manufactures that manufacture
comparable products. The ARRA funded project involves water system
improvements at the Maple Leaf Reservoir. Enhanced moisture protection
is being incorporated into the reinforced hot-applied waterproofing
system to allow for pedestrian use and vehicular activity. As part of
the reservoir burying program, the City's Parks Department will be
constructing a park on the roof of the reservoir. The City currently
has three other reservoirs which also have the semi-rigid protection
board installed. The City's project specification calls for the
reinforced hot applied waterproofing system. In order to provide
equivalent waterproofing protection similar to the three other
reservoirs within the City, the City changed the project specifications
in order to ensure consistency of their reservoir burying program
requirements and to ensure the semi-rigid protection board's twenty
(20) year warranty. An inquiry by EPA's national contractor (Cadmus)
confirmed there are no known domestic manufacturers of comparable semi-
rigid protection board that meet all aspects of the project
specification, which is supported by the available information.
Information received from the manufacturer on behalf of the City
indicated that an attempt to locate a domestic manufacturer was done so
unsuccessfully. The manufacturer added this product to their inventory
and product line some years ago. According to the manufacturer, their
two domestic suppliers of protection materials had indicated that they
were unable to manufacture a similar/like product and nor did either
supplier have knowledge of a similar/like product manufactured in the
U.S. Based on available information, it is unlikely that other semi-
rigid protection boards would function within the requirement of the
project specifications.
EPA has also evaluated the City's request to determine if its
submission is considered late or if it could be considered as if it was
timely filed, as per the OMB Guidance at CFR 176.120. EPA will
generally regard waiver requests with respect to components that were
specified in the bid solicitation or in a general/primary construction
contact as ``late'' if submitted after the contract date. However, EPA
could also determine that a request be evaluated as timely, though made
after the date that the contract was signed, if the need for a waiver
was not reasonably foreseeable. If the need for a waiver is reasonably
foreseeable, then EPA could still apply discretion in these late cases
as per the OMB Guidance, which says ``the award official may deny the
request.'' For those waiver requests that do not have a reasonably
unforeseeable basis for lateness, but for which the waiver basis is
valid and there is no apparent gain by the ARRA recipient or loss on
behalf of the government, then EPA will still consider granting a
waiver.
In this case, there are no U.S. manufacturers that meet the City's
project specifications for the semi-rigid protection boards. The waiver
request was submitted after the contract date due to a design change.
The original project specifications for the protection course were
developed with a standard design, 80- to 90-mil-(2.0- to 2.3-mm)
thickness, fiberglass reinforced asphalt or modified bituminous sheet.
The design change and clarification of May 12, 2010 resulted in an
upgrade to the existing protective course requirements, in order to
provide extra reinforcement and increased puncture resistance, similar
to the three other reservoir covers previously installed within the
City. The design change was necessary due to the project's size and
complexity. The design change also increases performance of the
protection board and the potential life expectancy of the project
resulting in a twenty year warranty program. The design change required
the upgrade of the protection course to a semi-rigid protection board
composed of a rubberized asphalt core, reinforced with a non-woven
fiberglass mat and sandwiched between two protective polypropylene
layers, with a minimum nominal thickness of 4.5 mm. The material
supplier and contractor's assumption that the protection board would be
acceptable under the North American Free Trade Agreement (NAFTA) or the
U.S. and Canada Trade Agreement signed effective February 16, 2010, was
made so in error. Therefore, the City did not submit a waiver request
until November 10, 2010. The City's Materials Lab consulted with EPA
personnel and correctly identified that a waiver would be required for
the protection board. There is no indication that the City failed to
request a waiver in order to avoid the requirements of the ARRA,
particularly since there are no domestically manufactured products that
meet the project specification. EPA will consider the City's waiver
request, a foreseeable late request, as though it had been timely made
since there is no gain by the City and no loss by the government due to
the late 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 ``satisfactory quality'' as the
quality of iron, steel or the relevant manufactured good as specified
in the project plans and design. The City has provided information to
the EPA representing that there are currently no domestic manufacturers
of the semi-rigid protection boards that meet the project
[[Page 6616]]
specification requirements. Based on additional research by EPA's
consulting contractor (Cadmus) and to the best of the Region's
knowledge at this time, there does not appear to be any other
manufacturers capable of meeting the City's specifications.
Furthermore, the purpose of the ARRA provisions was 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 and 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, 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 City's design
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 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 City is hereby
granted a waiver from the Buy American requirements of Section 1605(a)
of Public Law 111-5 for the purchase semi-rigid protection boards for a
hot applied membrane waterproofing system (15,600 sheets each measuring
39\1/2\'' x 80'') for a reservoir cover, manufactured in Surrey,
British Columbia, specified in the City's waiver request of November
10, 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.
Issued on: Dated: January 31, 2011.
Dennis J. Mclerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2011-2606 Filed 2-4-11; 8:45 am]
BILLING CODE 6560-50-P
