[Federal Register Volume 74, Number 196 (Tuesday, October 13, 2009)]
[Notices]
[Pages 52499-52500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24608]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration


Electronic Baggage Screening Program

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice of waiver.

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SUMMARY: The Department of Homeland Security (DHS) has granted a 
limited nationwide waiver of the buy American provision contained in 
sec. 1605 of the American Recovery and Reinvestment Act of 2009 
(Recovery Act) Public Law 111-5, 123 Stat. 115, 303 (2009) under the 
authority of sec. 1605(b)(1) (public interest exception) provided that 
at least 95 percent of the costs of each Transportation Security 
Administration (TSA) Electronic Baggage Screening Program (EBSP) 
project will comply with sec. 1605(a).

DATES: This notice is effective October 13, 2009.

ADDRESSES: Office of Acquisitions/Acquisitions Policy Office, TSA-25, 
Transportation Security Administration, 601 South 12th Street, 
Arlington, VA 20598-6025.

FOR FURTHER INFORMATION CONTACT: Ronald B. Gallihugh, Office of 
Acquisitions/Acquisitions Policy Office, TSA-25, Transportation 
Security Administration, 601 South 12th Street, Arlington, VA 20598-
6025; telephone (571) 227-2402; facsimile (571) 227-1372; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On February 17, 2009, the Recovery Act was enacted to assist those 
most impacted by the recession by creating and preserving jobs and 
promoting economic recovery. The funding was specified for multiple 
areas of national interest. TSA received $1 billion to invest in the 
procurement and installation of checked baggage explosives detection 
systems and checkpoint explosives detection equipment to be obligated 
by September 30, 2010. Approximately $500 million in Recovery Act 
funding will be allocated to facility modification projects to be 
administered through TSA's EBSP. This program directly benefits the 
traveling public, air carriers, airport authorities, and our Nation as 
a whole.
    TSA's EBSP supports the DHS goals of protecting our Nation from 
dangerous goods and protecting our Nation's critical transportation 
infrastructure by strengthening screening of checked baggage to reduce 
the probability of a successful terrorist or other criminal attack to 
the air transportation system. Since December 31, 2002, EBSP has been 
responsible for ensuring 100 percent screening of checked baggage in 
the United States. The EBSP's objective is to deter, detect, mitigate, 
and prevent transportation of explosives or other prohibited items in 
checked baggage on commercial aircraft. One significant way EBSP 
accomplishes its objectives is through the construction of Checked 
Baggage Inspection Systems (CBIS). These projects form the backbone of 
TSA's EBSP and represent the highest level of baggage screening 
capability in terms of processing efficiency and security. TSA has 
identified twenty-six airports across the country with ``shovel ready'' 
facility modification projects that include CBIS construction. These 
projects are dependent on Recovery Act funding. Several of these 
projects, however, are on hold and in jeopardy because of concerns over 
compliance with sec. 1605(a).
    Section 1605(a) of the Recovery Act, the buy American provision, 
states that none of the funds appropriated by the Act, including the 
funds that have been dedicated to project awards under EBSP, ``may be 
used for a project 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.'' Subsections 1605(b) and (c) of the Recovery Act 
authorize the head of a Federal department or agency to waive the buy 
American provision by finding that: (1) Applying the provision would be 
inconsistent with the public interest; (2) the relevant goods are not 
produced in the United States in sufficient and reasonably available 
quantities and of a satisfactory quality; or (3) the inclusion of the 
goods produced in the United States will increase the cost of the 
project by more than 25 percent. If the head of the Federal department 
or agency waives the buy American provision, then the head of the 
department or agency is required to publish a detailed justification in 
the Federal Register. Finally, sec. 1605(d) of the Recovery Act states 
that the buy American provision must be applied in a manner consistent 
with the United States' obligations under international agreements.

Public Interest Finding

    The Secretary of Homeland Security has determined that it would be 
inconsistent with the public interest--and particularly with the 
Recovery Act's directives to ensure expeditious spending of 
construction funds consistent with prudent management, as cited above--
to apply the buy American requirement to an entire CBIS project where 
at least 95 percent of the costs of the project will comply with sec. 
1605(a).
    A CBIS is a highly sophisticated electromechanical system for 
screening checked baggage. It consists of hundreds of mechanical and 
electrical items. It includes a mechanical conveyor system or baggage 
handling system (BHS) that transports checked baggage through the 
system. The CBIS also features a security screening matrix area where 
baggage is fed through one or more Explosion Detection Systems (EDS) or 
Explosive Trace Detection (ETD) systems to be analyzed. All of the 
mechanical and electrical items and processes that make up the CBIS are 
controlled by a central programmable logic controller (PLC) or 
programmable controller. The PLC is essentially a computer `brain' used 
for the automation of electro-mechanical processes, such as the control 
of machinery on factory assembly lines. The PLC controls all aspects of 
the CBIS including conveyor belt speeds, baggage tracking and managing 
the BHS merge points or windows.
    CBIS projects are comprised of thousands of manufactured goods, 
such as conveyor, conveyor motor drives, electrical and communications 
controls, programmable logic controllers, electronic tracking devices, 
high speed diverters, vertical sorters, specialty fasteners and 
switches. Not all of these items are domestically available. 
Furthermore, in many instances, the geographic origin of the equipment 
is not readily ascertainable. While arguably the Secretary of Homeland 
Security could have relied on the authority under sec. 1605(b)(2) (non-
availability waiver), the burden placed on TSA and contractors in 
sourcing and evaluating equipment availability would be unduly 
burdensome, impracticable and not in keeping with the Recovery Act's 
overall goal of expeditious spending of recovery funds.

[[Page 52500]]

    In the construction of such a sophisticated system as a CBIS, 
complete adherence to the requirements of section 1605(a) is 
impracticable, if not impossible. In addition, it has become a serious 
obstacle to ensuring that all identified airports will be able to sign 
construction contracts by September 30, 2010. Some airport authorities 
have simply been unable or unwilling to certify that the construction 
contracts it signs are compliant with the buy American provisions. The 
alternative would be for the airports and communities to lose their 
Recovery Act assistance, requiring TSA to reallocate funds, which is 
inconsistent with the public interest and the intent and purpose of the 
Recovery Act.
    DHS has considered the disproportionate cost and delay that would 
ensue if a limited waiver is not issued. The exercise of ascertaining 
whether compliant products exist or can be made to meet these 
requirements is already becoming a demanding and time-consuming task 
far out of proportion to the total percentage of project costs. On 
balance, the public interest in having these projects completed 
outweighs the Buy American requirement; particularly where the value of 
noncompliant goods is relatively small when compared to total project 
cost. CBIS projects significantly benefit aviation security, baggage 
screening efficiency and the flying public in general. Also, these 
projects help stimulate job growth for local construction workers, 
technicians, equipment designers, engineers, and others who will 
operate and maintain the equipment.
    Therefore, the Secretary granted a limited, nationwide public 
interest waiver, having found that it would be inconsistent with the 
public interest--and particularly with the Recovery Act's directives--
to apply the buy American requirement to an entire CBIS project in 
which at least 95 percent of the costs of the project will comply with 
section 1605. The Secretary determined the five percent limit based on 
research and informed professional judgment as to the maximum total 
amount of costs used in most CBIS projects.

Waiver

    Accordingly, the Secretary granted a limited, nationwide waiver of 
the requirements of section 1605(a) of the Recovery Act, Public Law 
111-5, buy American requirements, based on the public interest 
authority of section 1605(b)(1), provided that at least 95 percent of 
the costs of each TSA EBSP project will comply with section 1605. This 
waiver applies to all eligible EBSP projects for which the TSA has 
awarded or will award a project award using Recovery Act funds, and 
where at least 95 percent of the costs of the project will comply with 
sec. 1605.
    TSA will attempt to obtain 100 percent compliance with the buy 
American provision on all airport projects. This limited nationwide 
waiver is available to airports that cannot comply 100 percent with the 
buy American provision because applying the provision would be 
inconsistent with the public interest in accordance with sec. 
1605(b)(1). TSA will ensure that on all projects at least 95 percent of 
the costs will comply with section 1605. Recipients who wish to use 
this waiver should, in consultation with their contractors determine 
the items to be covered by this waiver, must retain relevant 
documentation as to those items in their project files, and must 
summarize in reports to TSA the types and/or categories of items to 
which this waiver is applied, the total cost of the goods covered by 
the waiver, and the calculations by which they determined the total 
cost of materials used in and incorporated into the project.

    Issued in Arlington, Virginia, on October 7, 2009.
Gale D. Rossides,
Acting Administrator.
[FR Doc. E9-24608 Filed 10-9-09; 8:45 am]
BILLING CODE 9110-05-P