[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Notices]
[Pages 25246-25247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10839]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9146-9]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Albuquerque Bernalillo County Water Utility Authority, 
New Mexico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 6 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 Albuquerque Bernalillo 
County Water Utility Authority (``ABCWUA'') for the purchase of three 
hundred acoustic leak detection sensors/loggers (``loggers'') and one 
fully programmable radio transceiver. The loggers and radio transceiver 
under consideration are manufactured by Gutermann, Inc., and no United 
States manufacturer produces an alternative that meets the ABCWUA's 
technical specifications. This is a project specific waiver and only 
applies to the use of the specified product for the ARRA funded project 
being proposed. Any other ARRA project that may wish to use the same 
product must apply for a separate waiver based on the specific project 
circumstances. The Regional Administrator is making this determination 
based on the review and recommendations of the EPA Region 6, Water 
Quality Protection Division. The ABCWUA has provided sufficient 
documentation to support its request.
    The Assistant Administrator of the EPA's 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 
three hundred loggers and one radio transceiver containing goods not 
manufactured in America, for the proposed project being implemented by 
the ABCWUA.

DATES: Effective Date: April 28, 2010.

FOR FURTHER INFORMATION CONTACT: Nasim Jahan, Buy American Coordinator, 
(214) 665-7522, SRF & Projects Section, Water Quality Protection 
Division, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
1605(b)(2), 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 ABCWUA for the acquisition of three 
hundred loggers and one radio transceiver (Model: Gutermann Zonescan 
820). The ABCWUA has been unable to find an American made logger 
manufacturer to meet its specific requirements of cross correlation 
functionality for pinpointing leaks throughout its water distribution 
system.
    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 public work unless all of the iron, 
steel, and manufactured goods used in the project are produced in the 
United States unless a waiver is provided to the recipient by EPA. A 
waiver may be provided 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.
    The ABCWUA is implementing a comprehensive asset management 
program, and leak detection is critical to better management of its 
water system assets. The ABCWUA desires to quickly and efficiently 
locate leaks in its wastewater distribution system and seeks ARRA 
funding to purchase loggers that can easily be deployed on the water 
distribution system, that are non-invasive, and are designed to detect 
noise generated from vibrations of water escaping from pipes. Efficient 
leak detection provides timely data on the types of leak and potential 
cause. It helps the utility authority in identifying high priority 
assets needing rehabilitation/replacement, which can effectively reduce 
the chances of catastrophic failure.
    Accordingly, the ABCWUA on January 22, 2010 concluded an ARRA 
assistance agreement with the State of New Mexico to a fund a project 
to procure and deploy leak detection equipment for its distribution 
system. The bid documents for the project include the specifications 
for loggers and one radio transceiver having cross correlation 
functionality for exactly pinpointing leaks throughout the water 
distribution system. The ABCWUA had received four bids for this project 
on January 20, 2010, and upon identifying Gutermann as the only bidder 
to provide a data logger that included this cross-correlation 
functionality, submitted a timely waiver request to EPA on February 5, 
2010.
    The ABCWUA is requesting a waiver for the use of three hundred 
loggers and one programmable radio transceiver (Model: Gutermann 
Zonescan 820) on the basis that there are no domestic manufacturers of 
the loggers that will meet the ABCWUA product specifications.
    The ABCWUA authority received four bids for the acoustic leak 
detection equipment project. Among the four bidders, the bid submitted 
by Gutermann was the only leak detection logger that met ABCWUA's 
specifications. Specifically, the logger was required to have the 
feature of cross correlation functionality for pinpointing leaks. 
Gutermann's Zonescan 820 loggers automatically perform leak noise 
correlation for pinpointing the leak location. In addition, automatic 
multi-correlation provides precise positions between all loggers in the 
same project area. As this feature maximizes the efficiency and 
effectiveness of the crucial functions of enabling the ABCWUA to 
conserve and prevent contamination of scarce water supplies that have 
already been treated to comply with National Primary Drinking Water 
Regulations, EPA finds that the ABCWUA's specification of this feature 
is justified.
    Although there are loggers that are manufactured in the United 
States, the

[[Page 25247]]

research conducted by Cadmus, the EPA Office of Water's national 
contractor, was unable to identify any domestically available loggers 
which meet the specifications and quality described in the project 
plans and designs. The contractor contacted four companies that 
manufacture loggers in the U.S. but none of these companies could 
provide loggers that offer integrated cross correlation functionality 
between loggers.
    Additional research conducted by EPA Region 6 appeared to confirm 
that there are no domestic logger manufacturers that would meet the 
ABCWUA's technical specifications.
    EPA's national contractor prepared a technical assessment report 
dated February 10, 2010 based on the waiver request submittal. The 
report determined that the waiver request submittal was complete, that 
adequate technical information was provided, and that there were no 
significant weaknesses in the justification provided. The report 
confirmed the waiver applicant's claim that there are no American-made 
loggers available for use in the water distribution system. Therefore, 
EPA Region 6 concludes that the loggers meet the ``specifications in 
project plans and design.''
    The April 28, 2009 EPA HQ Memorandum, Implementation of Buy 
American provisions of P.L. 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 ABCWUA has incorporated specific technical design 
requirements for installation of loggers in its water distribution 
system. Therefore, it meets the requirements of the ``satisfactory 
quality'' criterion for requesting a waiver from the Buy American 
provisions of Public Law 111-5.
    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 ABCWUA, 
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 Region 6 Water Quality Protection Division has reviewed this 
waiver request, and to the best of my knowledge at the time of review, 
has determined that the supporting documentation provided by the ABCWUA 
is sufficient to meet the criteria listed under ARRA, Section 1605(b), 
Office of Management and Budget (OMB) regulations at 2 CFR 176.60-
176.170, 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 ARRA, 
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 ABCWUA's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    EPA headquarters' 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 ABCWUA 
is hereby granted a waiver from the Buy American requirements of ARRA, 
Section 1605(a) of Public Law 111-5 for the purchase of three hundred 
loggers and one radio transceiver, using ARRA funds, as specified in 
the ABCWUA's request of February 5, 2010. This supplementary 
information constitutes the detailed written justification required by 
ARRA, Section 1605(c), for waivers ``based on a finding under 
subsection (b).''

    Authority:  Public Law 111-5, section 1605.

    Dated: April 28, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010-10839 Filed 5-6-10; 8:45 am]
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