Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Borough of Ocean Gate, NJ, 66064-66065 [2011-27607]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 206 (Tuesday, October 25, 2011)]
[Notices]
[Pages 66064-66065]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27607]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9482-3]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Borough of Ocean Gate, NJ

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The EPA is hereby granting a project waiver of the Buy 
American requirements of ARRA Section 1605 under the authority of 
Section 1605(b)(2) [manufactured goods are not produced in the United 
States in sufficient and reasonably available quantities and of a 
satisfactory quality] to the Borough of Ocean Gate, New Jersey 
(Borough), for the purchase of a foreign manufactured 50 kW wind 
turbine generator that meets the Borough's design and performance 
specifications. This is a project specific waiver and only applies to 
the use of the specified product for the ARRA project being proposed. 
Any other ARRA project that may wish to use the same product must apply 
for a separate waiver based on project specific circumstances. Based 
upon information submitted by the Borough and its consulting engineer, 
EPA has concluded that there are currently no domestic manufactured 50 
kW wind turbines available in sufficient and reasonable quantity and of 
a satisfactory quality to meet the Borough's project design and 
performance specifications, and that a waiver is justified. The 
Regional Administrator is making this determination based on the review 
and recommendations of the State Revolving Fund Program Team. The 
Assistant Administrator of the Office of Administration and Resources 
Management has concurred on this decision to make an exception to 
Section 1605(a) of ARRA. This action permits the purchase of a foreign 
manufactured 50 kW wind turbine generator by the Borough, as specified 
in its June 6, 2011 waiver request.

DATES: Effective Date: August 8, 2011.

FOR FURTHER INFORMATION CONTACT: Alicia Su[aacute]rez, Environmental 
Engineer, (212) 637-3851, State Revolving Fund Program Team, Division 
of Environmental Planning and Protection, U.S. EPA, 290 Broadway, New 
York, NY 10007.

SUPPLEMENTARY INFORMATION: 
    In accordance with ARRA Sections 1605(c) and 1605(b) (2), 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 Borough for the purchase of a 50 kW wind turbine 
generator, manufactured by Atlantic Orient Corporation, that meets the 
Borough's design and performance specifications. EPA has evaluated the 
Borough's basis for the procurement of a foreign made wind turbine 
generator. Based upon information submitted by the Borough and its 
consulting engineer, EPA has concluded that there are currently no 
domestic manufactured 50 kW wind turbines available in sufficient and 
reasonable quantity and of a satisfactory quality to meet the Borough's 
project design and performance specifications.
    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 a public works project 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 the EPA. A waiver may be 
provided under Section 1605(b) of ARRA 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.
    EPA has also evaluated the Borough's request to determine if its 
submission is considered late or if it could be considered timely, as 
per the Office of Management and Budget (OMB) regulations 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 regulations, 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, the contract for the construction and erection of a 
50 kW wind turbine was awarded in December 2009. At the time of award 
the contractor was proposing the installation of an Entegrity 50 kW 
wind turbine. The contractor's bid was based on using the Entegrity 
unit. Shortly after the contract was awarded it was discovered that 
Entegrity Wind Systems had filed for bankruptcy and was possibly going 
into receivership. The bankruptcy proceedings carried on for about a 
year. The issue was further complicated because the matter was in the 
Canadian courts. Due to the uncertainty of which turbine would actually 
be installed the Borough and contractor waited until that decision was 
finalized. The contractor was given the start work order in November 
2010. At that time the wind system to be used was confirmed and the 
necessary waiver was developed by the Borough. There is no indication 
that the Borough failed to request a waiver in order to avoid the 
requirements of ARRA, particularly

[[Page 66065]]

since there are no domestically manufactured products available that 
meet the project specifications. The Borough's subsequent research 
indicated that no other domestic manufactured 50 kW wind turbine 
generators that met project specifications were available. Accordingly, 
EPA will evaluate the request as a timely request.
    The Borough is completing a wind power project to supply power to 
its water treatment plant. The project is funded in part by the New 
Jersey Clean Energy Initiative. To qualify for the state's rebate, the 
wind turbine generator cannot produce more power than the plant's power 
consumption for the last year. Based on that requirement, a 50 kW wind 
turbine generator was specified.
    The Borough is requesting a waiver for the purchase of a 50 kW wind 
turbine generator, manufactured by Atlantic Orient Corporation, because 
according to the Borough, there are no domestic manufacturers that 
produce a wind turbine generator that meets the project design and 
performance specifications.
    Based on the technical evaluation of the Borough's waiver request 
and supporting documentation conducted by EPA's national contractor, 
the Borough's claim that no domestic manufacturer can produce a 50 kW 
wind turbine generator that meets the project specifications is 
supported by the available evidence. In addition, the evaluation of the 
supporting documentation indicates that Atlantic Orient Corporation, 
who manufactures its wind turbine generators in Canada, can provide a 
50 kW wind turbine generator that can meet project design and 
performance specifications.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are already ``shovel ready'' by requiring entities, such as the 
Borough, to revise their design standards and specifications and 
potentially choose a more costly, less efficient project. The 
imposition of ARRA Buy American requirements on such projects otherwise 
eligible for State Revolving Fund assistance would result in 
unreasonable delay and potentially the cancellation of this project as 
sited. The delay or cancellation of this construction would directly 
conflict with the fundamental economic purpose of ARRA, which is to 
create or retain jobs.
    The April 28, 2009, EPA Headquarters Memorandum, ``Implementation 
of Buy American provisions of Public Law 111-5, the `American Recovery 
and Reinvestment Act of 2009' '' (Memorandum), defines: reasonably 
available quantity as ``the quantity of iron, steel, or the 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,'' and satisfactory quality as ``the 
quality of iron, steel, or the relevant manufactured good as specified 
in the project plans and designs.''
    The Region 2 State Revolving Fund Program Team has reviewed this 
waiver request and has determined that the supporting documentation 
provided by the Borough establishes both a proper basis to specify the 
particular good required and that the manufactured good is not 
available from a producer in the United States to meet the design 
specifications for the proposed project. The information provided is 
sufficient to meet the criteria listed under Section 1605(b) of ARRA, 
OMB regulations at 2 CFR 176.60-176.170, and in the EPA Headquarters 
April 28, 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 Borough's technical specifications, a 
waiver from the Buy American requirement is justified.
    The Administrator's 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 
Authority is hereby granted a waiver from the Buy American requirements 
of Section 1605(a) of Public Law 111-5 for the purchase of a 50 kW wind 
turbine generator, as specified in its June 6, 2011 waiver 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: August 8, 2011.
Judith A. Enck,
Regional Administrator, Environmental Protection Agency, Region 2.
[FR Doc. 2011-27607 Filed 10-24-11; 8:45 am]
BILLING CODE 6560-50-P