[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30153-30154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12772]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9310-3]
Notice of a Regional Project Waiver of Section 1605 (Buy
American) of the American Recovery and Reinvestment Act of 2009 (ARRA)
to the Town of Smyrna, DE
SUMMARY: The EPA is hereby granting a 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 Town of Smyrna, DE (``Town''), for the purchase of two
inverter-driven ductless split HVAC systems: one air conditioning
system and one combined heating/air conditioning system (HVAC),
manufactured in Japan and Thailand by Mitsubishi Electronics American,
Inc.--HVAC Division. 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 recipient that wishes to use the same product
must apply for a separate waiver based on project specific
circumstances.
The ARRA funded project is for upgrading two well houses (Well
House No. 1 and Well House No. 2) with ductless split HVAC systems. The
Well House No. 1 upgrade includes an air conditioning system for the
well room and for Well House No. 2 the upgrade includes a heat pump
system for the electrical room. The Town evaluated four different
manufacturers of the specified ductless split air conditioning and heat
pump systems. Based upon information submitted by the Town and its
consulting engineer, EPA has concluded that there are no HVAC systems
manufactured in the United States in sufficient and reasonable quantity
and of a satisfactory quality to meet the technical specifications and
that a waiver of the Buy American provisions is justified. The Regional
Administrator is making this determination based on the review and
recommendations of the EPA Region III, Water Protection Division,
Office of Infrastructure and Assistance.
The Assistant Administrator of the Office of Administration and
Resources Management has concurred on this decision to make an
exception to the requirements of Section 1605(a) of ARRA. This action
permits the purchase of two inverter-driven ductless split HVAC systems
for the proposed project being implemented by the Town of Smyrna.
DATES: May 24, 2011.
FOR FURTHER INFORMATION CONTACT: Robert Chominski, Deputy Associate
Director, (215) 814-2162, or David McAdams, Environmental Engineer,
(215) 814-5764, Office of Infrastructure & Assistance (OIA), Water
Protection Division, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029.
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 Town of Smyrna, Delaware for the purchase of two
inverter-driven ductless split HVAC systems (HVAC) for Well Houses 1
and 2. EPA has evaluated the Town's basis for procuring the two HVAC
systems for these well houses. The ARRA funded project is for upgrading
two well houses (Well House No. 1 and Well House No. 2) with HVAC
systems. The Well House No. 1 upgrade includes an air conditioning
system for the well room and for Well House No. 2 the upgrade includes
a heat pump system for the electrical room. Each system includes an
indoor wall mounted evaporator-fan unit and an outdoor aired cooled
compressor-condenser. The new HVAC split systems will provide benefits
to the Town due to the product's reliability with the electronics
controlling critical infrastructure, cost effectiveness, energy
efficiency, and ease of maintenance. The project specifications require
a scroll inverter type compressor with multi-speed motor and copper
refrigerant tubes having mechanically bonded aluminum fins complying
with ARI 210/240, and with liquid sub-cooler; wall mounted evaporator
fan unit with direct drive centrifugal fan and copper refrigerant tubes
with mechanically bonded aluminum fins complying with ARI 210/240; use
of R-410A refrigerant; and a low ambient kit permitting operation down
to 0[deg]F [applicable to the heat pump only]. The HVAC systems are
specifically designed for this project to support new Motor Control
Centers in the well houses. Currently, there are no HVAC systems in the
two well houses. Based upon information submitted by the Town and its
consulting engineer, EPA has concluded that there are no ductless split
HVAC systems manufactured in the United States in sufficient and
reasonable quantity and of a satisfactory quality to meet the technical
specifications for the Town to pursue the purchase of domestically
manufactured HVAC systems.
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 is 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) 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 than25 percent.
EPA has also evaluated the Town'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 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
[[Page 30154]]
government, then EPA will still consider granting a waiver.
In this case, there are no U.S. manufacturers that meet the Town's
project specifications for the HVAC systems. The waiver request was
submitted after the contract date due to the Town's contractor not
notifying them until February 24, 2011 that a Buy American waiver was
needed since they could not find an American manufacturer of the HVAC
system to meet the project specifications. Therefore, the Town did not
submit a waiver request until March 3, 2011. There is no indication
that the Town failed to request a waiver to avoid the requirements of
the ARRA, particularly since there are no domestically manufactured
products that meet the project specifications. EPA will consider the
Town's waiver request, a foreseeable late request, as though it had
been timely made since there is no gain by the Town 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 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 Town has provided information to the EPA representing
that there are currently no domestic manufacturers of the HVAC systems
that meet the project specification requirements. Based on additional
research by EPA's consulting contractor and to the best of the Region's
knowledge at this time, there does not appear to be any other
manufacturer capable of meeting the Town's specifications.
The purpose of the ARRA is to stimulate economic recovery in part
by funding current infrastructure construction, not to delay projects
that are ``shovel ready'' by requiring utilities, such as the Town, to
revise their standards and specifications, institute a new bidding
process, 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 thus displace the ``shovel ready'' status for
this project. To further delay construction is in direct conflict with
a fundamental economic purpose of the ARRA, which is to create or
retain jobs.The OIA has reviewed this waiver request and, to the best
of our knowledge at the time of review, has determined that the
supporting documentation provided by the Town is sufficient to meet the
criteria listed under Section 1605(b) and in the April 28, 2009,
``Implementation of Buy American provisions of Public Law 111-5, the
`American Recovery and Reinvestment Act of 2009' Memorandum:'' Iron,
steel, and the manufactured goods are not produced in the United States
in sufficient and reasonably available quantities and of a satisfactory
quality. The basis for this project waiver is the authorization
provided in Section 1605(b)(2). Due to the lack of production of this
product in the United States in sufficient and reasonably available
quantities and of a satisfactory quality to meet the Town's technical
specifications, a waiver from the Buy American requirement is
justified.
The March 31, 2009 Delegation of Authority Memorandum provided
Regional Administrators with the authority to issue exceptions to
Section 1605 of ARRA within the geographic boundaries of their
respective regions and with respect to requests by individual grant
recipients. Having established both a proper basis to specify the
particular good required for this project, and that this manufactured
good was not available from a producer in the United States, the Town
of Smyrna is hereby granted a waiver from the Buy American requirements
of Section 1605(a) of Public Law 111-5 for the purchase of two
inverter-driven ductless split HVAC systems using ARRA funds as
specified in the Town of Smyrna's request of March 3, 2011. 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: April 27, 2011.
W.C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency,
Region III.
[FR Doc. 2011-12772 Filed 5-23-11; 8:45 am]
BILLING CODE 6560-50-P