Regional Waiver of Buy American Requirements of the American Recovery and Reinvestment Act:

Federal Register: January 19, 2011 (Volume 76, Number 12)

Notices

Page 3136-3138

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr19ja11-65

ENVIRONMENTAL PROTECTION AGENCY

EPA-R07-OW-2010-1084; FRL-9254-3

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.

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 two

(2) foreign manufactured Toshiba LQ500 Density Analyzers in Columbia,

Missouri. 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

Toshiba LQ500 density analyzer, a list of potential manufacturers, project schedule, and a price comparison worksheet of the different manufacturers submitted by the City and its consulting engineer, it has been determined that there are currently no domestically manufactured density analyzers 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

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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 two foreign manufactured Toshiba LQ500 density analyzers. City of Columbia, MO has provided sufficient documentation to support their waiver request.

DATES: Effective Date: January 6, 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 two non-domestically manufactured Toshiba LQ500 density analyzers, 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) improvement project phase 1 that includes the use of a non-domestically manufactured Toshiba LQ500 density analyzer. The

Toshiba LQ500 density analyzers measure the density of the WWTF's primary sludge as a parameter for sludge waste process control. The

Toshiba LQ500 density analyzer provides improved settling of microbiological populations, provides improved nutrient removal, maintains constant mass solids loading to activated sludge thickeners, and reduces variability of Total Solids (TS) concentrations which results in a considerable improvement of thickener performance. Project specifications for a density analyzer require the following to meet the design and performance criteria:

(1) The density analyzer shall consist of an element and transmitter that utilizes the microwave phase difference method to determine the density of that process fluid;

(2) The element shall consist of an obstruction-less microwave source;

(3) The element shall mount, non-intrusively, in line with the process piping using mounting hardware furnished with the device;

(4) The element components shall be rated for explosion proof service; and

(5) The transmitter shall be microprocessor based, generate an isolated 4-20 mA dc output proportional to the process density, and be provided in a NEMA 4 rated, wall mounted enclosure.

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 LQ500 density/consistency analyzer is manufactured non- domestically by the Toshiba Corporation. The supporting documentation and independent research and communication with manufacturers of in- line, non-intrusive sludge density analytical process analyzers 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 their density analytical instruments 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 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.

In this case, there are no U.S. manufacturers that meet Columbia,

MO's project specification for the density analyzer. The waiver request was not made prior to the contract being signed because initially the manufacturer said their product was substantially transformed in the

U.S.; however, Columbia, MO did not accept this documentation. There is no indication that Columbia, MO 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 Columbia, MO's waiver request, a foreseeable late request, as though it had been timely made since there is no gain by Columbia, MO and no loss by the government due to the late request.

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 density analyzers 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

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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 Toshiba LQ500

Density Analyzers documented in City's waiver request submittal dated

August 11, 2010. 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 6, 2011.

Karl Brooks,

Regional Administrator, Region 7.

FR Doc. 2011-1018 Filed 1-18-11; 8:45 am

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