Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Metropolitan Council Environmental Services of St. Paul, MN (MCES), 38164-38166 [2011-16383]
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mstockstill on DSK4VPTVN1PROD with NOTICES
38164
Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Notices
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 requirements specified for the
availability inquiry as appropriate to the
circumstances by conducting an
extensive investigation into all possible
sources for combination ARVs. Based on
the investigation, several companies
were found to manufacture the required
ARVs, but none were able to meet all of
the criteria in the project specifications,
namely a conical body shape, a springloaded joint between the stem and the
upper float, and a 316 SAE stainless
steel body. Therefore, MCES contends
that there is no domestic product of
satisfactory quality available.
EPA’s national contractor prepared a
technical assessment report 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. Therefore, based
on the information provided to EPA and
to the best of our knowledge at this
time, the four combination ARVs
necessary for this project are not
manufactured in the United States, and
no other U.S. manufactured product can
meet MCES’s project performance
specifications and requirements.
EPA has also evaluated MCES’s
request to determine if its submission is
considered late or if it could be
considered timely, as per the OMB
Guidance at 2 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 contract 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.
VerDate Mar<15>2010
17:48 Jun 28, 2011
Jkt 223001
In this case, there are no U.S.
manufacturers that meet MCES’s project
specifications for the purchase of four
combination ARVs to prevent failure or
blockage of the South St. Paul
Forcemain (pressure pipe). The waiver
request was submitted after the contract
was signed due to the large size of the
project. With the nature of large projects
having numerous items in the
specifications, it is difficult and time
consuming to know the origin of every
single item, until shop drawings are
submitted or it comes time to purchase
an item. Therefore, MCES was not aware
that there are no domestic equivalents
for the ARVs in question until after the
contract was signed. There is no
indication that MCES failed to request a
waiver in order to avoid the
requirements of the ARRA, particularly
since there are no domestically
manufactured products available that
meet the project specifications. EPA will
consider MCES’s waiver request, a
foreseeable late request, as though it had
been timely made since there is no gain
by MCES and no loss by the government
due to the late request.
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 loan
recipients such as MCES 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.
EPA has reviewed this waiver request
and has determined that the supporting
documentation provided by MCES 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 item in the United States in
sufficient and reasonably available
quantities and of a satisfactory quality
in order to meet MCES’s project
performance specifications and
PO 00000
Frm 00057
Fmt 4703
Sfmt 4703
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, MCES is hereby
granted a waiver from the Buy American
requirements of Section 1605(a) of
Public Law 111–5 for the purchase of
four combination ARVs using ARRA
funds as specified in the community’s
request. 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 9, 2011.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2011–16386 Filed 6–28–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9426–2]
Notice of a Project Waiver of Section
1605 (Buy American Requirement) of
the American Recovery and
Reinvestment Act of 2009 (ARRA) to
the Metropolitan Council
Environmental Services of St. Paul, MN
(MCES)
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
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 the Metropolitan
Council Environmental Services (MCES)
of St. Paul, Minnesota, for the purchase
of one Parkson StrainPress SC–4
pressurized in-line sludge screen to
process gravity thickened primary
sludge at its Blue Lake Wastewater
Treatment Plant located in Shakopee,
Minnesota. This is a project-specific
waiver and it only applies to the use of
the specified product for the ARRA
funded project being proposed. Any
SUMMARY:
E:\FR\FM\29JNN1.SGM
29JNN1
mstockstill on DSK4VPTVN1PROD with NOTICES
Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Notices
other ARRA project that may wish to
use the same product must apply for a
separate waiver based on projectspecific circumstances. This sludge
screen, which is supplied by Parkson
Corporation of Vernon Hills, Illinois, is
manufactured in Germany, and meets
MCES’s performance specifications and
requirements. The Regional
Administrator is making this
determination based on the review and
recommendations of EPA Region 5’s
Water Division. MCES 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 one StrainPress
SC–4 pressurized in-line sludge screen
for the Blue Lake Wastewater Treatment
Plant Solids Improvements project that
may otherwise be prohibited under
Section 1605(a) of the ARRA.
DATES: Effective Date: June 29, 2011.
FOR FURTHER INFORMATION CONTACT:
Andrew Lausted, SRF Program Manager,
(312) 886–0189, or Puja Lakhani, Office
of 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 MCES of St. Paul,
Minnesota, for the acquisition of a
Parkson StrainPress SC–4 pressurized
in-line sludge screen that is
manufactured in Germany.
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.
This pressurized in-line sludge screen
will remove undesirable contaminants
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17:48 Jun 28, 2011
Jkt 223001
and debris from the waste primary
sludge prior to the pelletizing process.
MCES selected this particular sludge
screen because it already has two
Parkson screens at the facility, and a
third screen is needed to accommodate
increased wastewater flows and loading.
This screen is an exact match for the
existing screens. Additionally, spare
parts are in stock, and staff are trained
to operate and maintain the screen.
Only the Parkson StrainPress SC–4
screen is small enough to fit into the
designated treatment area at the Blue
Lake facility. MCES’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 requirements
specified for the availability inquiry as
appropriate to the circumstances by
conducting an extensive investigation
into all possible sources for pressurized
in-line sludge screens. Based on the
investigation, three companies were
found to manufacture the required
sludge screens, but none were
manufactured in the United States.
Given the space limitations of the
project and that the two existing
Parkson sludge screens have operated
effectively since 1999 and still have
many years of useful life, MCES believes
that a third screen would perform
equally well in this specific application.
Therefore, MCES contends that there is
no domestic product of satisfactory
quality available consistent with the
specifications of this project.
EPA’s national contractor prepared a
technical assessment report based on
the submitted waiver request. The
report determined that the waiver
request submittal was complete, that
adequate technical information was
provided, and that the utility’s claim
that no U.S. manufacturer could provide
the item was supported by the available
evidence. Therefore, based on the
information provided to EPA and to the
best of our knowledge at this time, the
Parkson StrainPress SC–4 pressurized
in-line sludge screen necessary for this
project is not manufactured in the
United States, and no other U.S.
manufactured product can meet MCES’s
PO 00000
Frm 00058
Fmt 4703
Sfmt 4703
38165
project performance specifications and
requirements.
EPA has also evaluated MCES’s
request to determine if its submission is
considered late or if it could be
considered timely, as per the OMB
Guidance at 2 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 contract 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 a
waiver. 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 MCES’s project
specification for this pressurized in-line
sludge screen. The waiver request was
submitted after the contract was signed
due to the large size of the project, with
approximately 200 sub-contracts, which
led to MCES not being made aware that
there are no domestic equivalents for
the sludge screen until after the contract
was signed. There is no indication that
MCES failed to request a waiver in order
to avoid the requirements of the ARRA,
particularly since there are no
domestically manufactured products
available that meet the project
specifications. EPA will consider
MCES’s waiver request, a foreseeable
late request, as though it had been
timely made since there is no gain by
MCES and no loss by the government
due to the late request.
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 loan
recipients such as MCES 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
E:\FR\FM\29JNN1.SGM
29JNN1
38166
Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Notices
economic purpose of the ARRA, which
is to create or retain jobs.
EPA has reviewed this waiver request
and has determined that the supporting
documentation provided by MCES 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 item in the United States in
sufficient and reasonably available
quantities and of a satisfactory quality
in order to meet MCES’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, MCES is hereby
granted a waiver from the Buy American
requirements of Section 1605(a) of
Public Law 111–5 for the purchase of
one Parkson StrainPress SC–4
pressurized in-line sludge screen using
ARRA funds as specified in the
community’s request. 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 31, 2011.
Susan Hedman,
Regional Administrator, Region 5.
mstockstill on DSK4VPTVN1PROD with NOTICES
[FR Doc. 2011–16383 Filed 6–28–11; 8:45 am]
BILLING CODE 6560–50–P
VerDate Mar<15>2010
17:48 Jun 28, 2011
Jkt 223001
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPP–2011–0464; FRL–8877–4]
Registration Review; Pesticide
Dockets Opened for Review and
Comment and Other Docket Actions
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
EPA has established
registration review dockets for the
pesticides listed in the table in Unit
III.A. With this document, EPA is
opening the public comment period for
these registration reviews. Registration
review is EPA’s periodic review of
pesticide registrations to ensure that
each pesticide continues to satisfy the
statutory standard for registration, that
is, the pesticide can perform its
intended function without unreasonable
adverse effects on human health or the
environment. Registration review
dockets contain information that will
assist the public in understanding the
types of information and issues that the
Agency may consider during the course
of registration reviews. Through this
program, EPA is ensuring that each
pesticide’s registration is based on
current scientific and other knowledge,
including its effects on human health
and the environment. This document
also announces the Agency’s intent not
to open a registration review docket for
cucumber beetle attractant. This
pesticide does not currently have any
actively registered pesticide products
and is not, therefore, subject to review
under the registration review program.
This document also announces the
availability of amended final work plans
for the registration review of the
pesticides isoxaben and bifenthrin;
these work plans have been amended to
incorporate revisions to the data
requirements.
SUMMARY:
Comments must be received on
or before August 29, 2011.
ADDRESSES: Submit your comments
identified by the docket identification
(ID) number for the specific pesticide of
interest provided in the table in Unit
III.A., by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Mail: Office of Pesticide Programs
(OPP) Regulatory Public Docket (7502P),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001.
• Delivery: OPP Regulatory Public
Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One
DATES:
PO 00000
Frm 00059
Fmt 4703
Sfmt 4703
Potomac Yard (South Bldg.), 2777 S.
Crystal Dr., Arlington, VA. Deliveries
are only accepted during the Docket
Facility’s normal hours of operation
(8:30 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays).
Special arrangements should be made
for deliveries of boxed information. The
Docket Facility telephone number is
(703) 305–5805.
Instructions: Direct your comments to
the docket ID numbers listed in the table
in Unit III.A. for the pesticides you are
commenting on. EPA’s policy is that all
comments received will be included in
the docket without change and may be
made available on-line at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through regulations.gov or email. The regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through
regulations.gov, your e-mail address
will be automatically captured and
included as part of the comment that is
placed in the docket and made available
on the Internet. If you submit an
electronic comment, EPA recommends
that you include your name and other
contact information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket
are listed in the docket index available
at https://www.regulations.gov. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either in the
electronic docket at https://
www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in
Rm. S–4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington,
VA. The hours of operation of this
E:\FR\FM\29JNN1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38164-38166]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16383]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9426-2]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the Metropolitan Council Environmental Services of St. Paul,
MN (MCES)
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 the Metropolitan Council
Environmental Services (MCES) of St. Paul, Minnesota, for the purchase
of one Parkson StrainPress SC-4 pressurized in-line sludge screen to
process gravity thickened primary sludge at its Blue Lake Wastewater
Treatment Plant located in Shakopee, Minnesota. This is a project-
specific waiver and it only applies to the use of the specified product
for the ARRA funded project being proposed. Any
[[Page 38165]]
other ARRA project that may wish to use the same product must apply for
a separate waiver based on project-specific circumstances. This sludge
screen, which is supplied by Parkson Corporation of Vernon Hills,
Illinois, is manufactured in Germany, and meets MCES's performance
specifications and requirements. The Regional Administrator is making
this determination based on the review and recommendations of EPA
Region 5's Water Division. MCES 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 one StrainPress SC-4 pressurized in-line sludge screen for
the Blue Lake Wastewater Treatment Plant Solids Improvements project
that may otherwise be prohibited under Section 1605(a) of the ARRA.
DATES: Effective Date: June 29, 2011.
FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager,
(312) 886-0189, or Puja Lakhani, Office of 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 MCES of St.
Paul, Minnesota, for the acquisition of a Parkson StrainPress SC-4
pressurized in-line sludge screen that is manufactured in Germany.
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.
This pressurized in-line sludge screen will remove undesirable
contaminants and debris from the waste primary sludge prior to the
pelletizing process. MCES selected this particular sludge screen
because it already has two Parkson screens at the facility, and a third
screen is needed to accommodate increased wastewater flows and loading.
This screen is an exact match for the existing screens. Additionally,
spare parts are in stock, and staff are trained to operate and maintain
the screen. Only the Parkson StrainPress SC-4 screen is small enough to
fit into the designated treatment area at the Blue Lake facility.
MCES'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 requirements specified for the availability
inquiry as appropriate to the circumstances by conducting an extensive
investigation into all possible sources for pressurized in-line sludge
screens. Based on the investigation, three companies were found to
manufacture the required sludge screens, but none were manufactured in
the United States. Given the space limitations of the project and that
the two existing Parkson sludge screens have operated effectively since
1999 and still have many years of useful life, MCES believes that a
third screen would perform equally well in this specific application.
Therefore, MCES contends that there is no domestic product of
satisfactory quality available consistent with the specifications of
this project.
EPA's national contractor prepared a technical assessment report
based on the submitted waiver request. The report determined that the
waiver request submittal was complete, that adequate technical
information was provided, and that the utility's claim that no U.S.
manufacturer could provide the item was supported by the available
evidence. Therefore, based on the information provided to EPA and to
the best of our knowledge at this time, the Parkson StrainPress SC-4
pressurized in-line sludge screen necessary for this project is not
manufactured in the United States, and no other U.S. manufactured
product can meet MCES's project performance specifications and
requirements.
EPA has also evaluated MCES's request to determine if its
submission is considered late or if it could be considered timely, as
per the OMB Guidance at 2 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 contract 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 a
waiver. 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 MCES's
project specification for this pressurized in-line sludge screen. The
waiver request was submitted after the contract was signed due to the
large size of the project, with approximately 200 sub-contracts, which
led to MCES not being made aware that there are no domestic equivalents
for the sludge screen until after the contract was signed. There is no
indication that MCES failed to request a waiver in order to avoid the
requirements of the ARRA, particularly since there are no domestically
manufactured products available that meet the project specifications.
EPA will consider MCES's waiver request, a foreseeable late request, as
though it had been timely made since there is no gain by MCES and no
loss by the government due to the late request.
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 loan recipients such as MCES 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
[[Page 38166]]
economic purpose of the ARRA, which is to create or retain jobs.
EPA has reviewed this waiver request and has determined that the
supporting documentation provided by MCES 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 item in the United States in sufficient and
reasonably available quantities and of a satisfactory quality in order
to meet MCES'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, MCES is
hereby granted a waiver from the Buy American requirements of Section
1605(a) of Public Law 111-5 for the purchase of one Parkson StrainPress
SC-4 pressurized in-line sludge screen using ARRA funds as specified in
the community's request. 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 31, 2011.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2011-16383 Filed 6-28-11; 8:45 am]
BILLING CODE 6560-50-P
