
[Federal Register Volume 76, Number 123 (Monday, June 27, 2011)]
[Notices]
[Pages 37350-37351]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16048]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R07-OW-2011-0540; FRL-9324-5]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the City of Columbia, MO

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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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 City of Columbia, MO (``City'') for the purchase of 
several foreign manufactured components of heating/ventilation/air 
conditioning systems (HVAC Systems) in Columbia, Missouri. This HVAC 
system consists of three (3) heat pumps and the associated packaged air 
handlers and one (1) air conditioning system condensing unit. The 
system is manufactured by Trane Commercial Systems in Monterrey, 
Mexico. 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. Based upon 
critical performance requirements and project specifications for the 
HVAC systems, a list of potential manufacturers and project schedule 
submitted by the City and its consulting engineer, it has been 
determined that there are currently no domestically manufactured HVAC 
systems available to meet the City's project specifications. The 
Regional Administrator is making this determination based on the review 
and recommendations of the Clean Water State Revolving Fund (CWSRF) 
staff. 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 
the Trane Commercial Systems foreign manufactured HVAC systems. The 
City of Columbia, MO has provided sufficient documentation to support 
their waiver request.

DATES: Effective Date: June 27, 2011.

FOR FURTHER INFORMATION CONTACT: Christopher Simmons, Environmental 
Engineer, Water Wetlands and Pesticides Division (WWPD), (913) 551-
7237, U.S. EPA, Region 7, 901 N. Fifth Street, Kansas City, KS 66101.

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 of Columbia, MO (``City'') for the purchase 
of non-domestically manufactured Trane HVAC systems consisting of three 
(3) heat pumps and the associated packaged air handlers and one (1) air 
conditioning system condensing unit, to meet the City's design and 
performance specifications as part of its proposed Wastewater Treatment 
Facility Phase 1 Improvement Project in Columbia, MO.
    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 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.
    The City of Columbia, MO is proposing a Wastewater Treatment 
Facility (WWTF) Phase 1 Improvement Project that includes the use of 
non-domestically manufactured Trane HVAC systems. The new HVAC systems 
to be installed in the WWTF provides adequate indoor air quality by 
conditioning the air in the occupied space, diluting and removing 
contaminants from indoor air while providing proper pressurization. 
Project specifications for a density analyzer require the following to 
meet the design and performance criteria:
    (1) Each component of the HVAC system must be compatible with all 
other parts of the system;
    (2) Where two (2) or more units of the same class of equipment are 
required, they shall be the product of the same manufacturer.
    The Clean Water State Revolving Fund (CWSRF) staff has reviewed 
this waiver request and has determined that the supporting 
documentation provided by the City of Columbia, MO establishes both a 
proper basis to specify a particular manufactured good, and that there 
is no domestic manufactured good currently available. The information 
provided is sufficient to meet the following criteria listed under 
Section 1605(b) of the ARRA and in the 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 Heating/Ventilation/Air Conditioning (HVAC) systems are 
manufactured non-domestically by the Trance Commercial Systems located 
in Monterrey, Mexico. All supporting documentation and independent 
research and communication with manufacturers of HVAC systems conducted 
by EPA's national contractor demonstrate that there are no U.S. 
manufacturers able to meet the project specifications. None of the 
companies contacted by EPA's national contractor manufacture HVAC 
systems, which can meet the specifications, in the United States.
    EPA has also evaluated Columbia, MO's waiver 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

[[Page 37351]]

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.
    In this case, there are no U.S. manufacturers that meet Columbia, 
MO's project specification for the HVAC systems. The waiver request was 
not made prior to the contract being signed because initially the 
manufacturer said their product was manufactured in the U.S. Trane 
Commercial Systems has since moved manufacturing of some products to 
Monterrey, Mexico. In light of the unexpected change in the 
manufacturing location, the City could not have reasonably foreseen the 
need at the time of contract award to submit a waiver request. EPA will 
therefore consider Columbia, MO's waiver request, an unforeseeable late 
request, as though it had been timely made.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
projects that are ``shovel ready'' by requiring potential SRF eligible 
recipients, such as the City of Columbia, MO, to revise their design 
standards and specifications as well as their construction schedule. 
There are no domestic manufacturers that can provide HVAC systems that 
meet the specifications of this WWTF improvement project. To delay this 
construction would directly conflict with a fundamental economic 
purpose of ARRA, which is to create or retain jobs.
    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' '' (``Memorandum''), 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 same Memorandum defines 
``satisfactory quality'' as ``the quality of steel, iron or 
manufactured good specified in the project plans and designs.''
    The March 31, 2009 Delegation of Authority Memorandum provided 
Regional Administrators with the temporary 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 
manufactured 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. This waiver permits use of ARRA 
funds for the purchase of a non-domestic manufactured Trane Commercial 
Systems Heating/Ventilation/Air Conditioning Systems documented in 
City's waiver request submittal dated February 18, 2011. 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: June 14, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-16048 Filed 6-24-11; 8:45 am]
BILLING CODE 6560-50-P


