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, 3136-3138 [2011-1018]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3136-3138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1018]


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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.

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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 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

[[Page 3137]]

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

[[Page 3138]]

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]
BILLING CODE 6560-50-P