[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Notices]
[Pages 63296-63298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26330]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9476-8]


Notice of a Regional Waiver of Section 1605 (Buy American 
requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Nikishka Bay Utilities (the Utility), of Nikiski, AK

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting 
a waiver from the Buy American requirements of ARRA Section 1605(a) 
under the authority of Section

[[Page 63297]]

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 Utility for the purchase of a magnetic flow meter, 
manufactured in Mexico. This is a project specific waiver and only 
applies to the use of the specified products 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. The waiver applicant states that the project requires 
the magnetic flow meter installation on the main distribution line out 
of the water treatment plant. The Utility had an existing turbine meter 
which was currently in use; however, the existing turbine meter failed 
prior to completion of the project necessitating the Utility to acquire 
a new meter as a replacement. The Regional Administrator is making this 
determination based on the review and recommendations of the Drinking 
Water Unit. The Utility has provided sufficient documentation to 
support their request.

DATES: Effective Date: September 29, 2011.

FOR FURTHER INFORMATION CONTACT: Johnny Clark, DWSRF ARRA Program 
Management Analyst, Drinking Water Unit, Office of Water & Watersheds 
(OWW), (206) 553-0082, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue, 
Suite 900, Seattle, WA 98101.

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 Utility for the purchase of a non-domestic 
manufactured magnetic flow meter. The Utility is replacing an existing 
turbine meter that failed prior to completion of the project. The 
construction of this project involves two phases. Phase 1 of this 
project includes upgrades near the pumping and distribution components 
of the Utility. Phase 2 of this project includes the design and 
construction of two 34,000 gallon storage pressure tanks with a metal 
building enclosure. In addition, the Utility will install high 
efficiency well pumps and a booster pump along with the installation of 
associated controls and construction of approximately 887 linear feet 
of 12'' HDPE water main.
    During construction, the Utility had originally designed and 
planned to relocate an existing turbine meter which was currently 
installed on the system's main distribution line. The turbine meter 
relocation would measure total production flow down-stream of the water 
treatment system. During the course of construction, the turbine meter 
failed, necessitating a replacement of the meter. Although replacement 
of the existing meter seemed a likely course of action for the Utility, 
a new assessment determined that a new meter which could measure low 
and high flows would allow the Utility to account for the variations in 
flow rates, thereby making full use of the Utility's water usage 
monitoring capabilities. The existing turbine meter measured constant 
flows between 200 gpm and 400 gpm when the wells were in operation and 
thus low flow monitoring capabilities were not fully assessed and only 
total volume was measured. The Utility recognizes that measuring total 
volume is an important indicator for water usage; however, taking 
advantage of the ability for the Utility to monitor variations between 
low and high flows is also an important factor for consideration. The 
Utility decided that instead of replacing the failed turbine meter with 
an identical unit, a meter which could measure the low and high flow 
rates based on usage was a better option to improve their ability to 
capture data associated with low and high flow rates. In addition, 
while researching and conducting design analysis for the replacement 
meter, it became known to the Utility that fire flow requirements or 
other high flow events required the Utility to identify a meter capable 
of measuring flows over much wider ranges. Because the meter will be 
used in a fire pump application, a low head loss meter is also 
required. These requirements for measuring low and high flow rates and 
the need to identify a meter which met fire flow certification 
requirements resulted in the Utility identifying a system flow meter 
for their design specifications. The main specification requirements 
for the flow meter are as follows;
    1. Four to 1,400 gpm flow range measuring,
    2. No head loss across the meter,
    3. Bi-directional pulse output,
    4. 0.5 second sampling rate,
    5.  55 accuracy,
    6. IP68 rated, and
    7. FM 1046 approved for fire service metering.
    The Utility contacted several manufacturers to identify a flow 
meter which could meet the design specifications outlined for the 
project; however, none could provide one that is domestically 
manufactured.
    The EPA has also evaluated the City's 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, the 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 the EPA could still apply discretion in these late 
cases as per the OMB Guidance, which says ``the awarding 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 the EPA will still consider 
granting a waiver.
    In this case, there are no U.S. manufacturers that meet the 
Utility's requirement for system metering. The waiver request was 
submitted after contract signing because the existing turbine meter 
which was going to be relocated, failed during the relocation; 
therefore, the need for a new meter was reasonably unforeseeable. 
During the design and bid preparation process, the Utility had planned 
to use and relocate the existing turbine meter and therefore no waiver 
was required. After the existing meter failed and the Utility 
recognized that a new meter was required, the Utility did submit the 
appropriate waiver request after evaluating domestic manufactured 
products and found through their research and due diligence that no 
U.S. manufactured flow meters could meet the design requirements for 
the project. The EPA will consider the Utility's waiver request as a 
timely request since it was reasonably unforeseeable.
    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'', defines ``satisfactory quality'' as the 
quality of iron, steel or the relevant manufactured good as specified 
in the project plans and design. The Utility has provided information 
to the EPA representing there are no domestically manufactured magnetic 
flow meters meeting the project specifications. EPA's contractor 
reviewed the information and claims provided by the Utility and 
determined that the project specifications are supported by the 
evidence and that none of the magnetic meters reviewed

[[Page 63298]]

could meet all of the project specifications.
    Furthermore, the purpose of the ARRA provisions was to stimulate 
economic recovery by funding current infrastructure construction, not 
to delay projects that are already shovel ready by requiring entities, 
like the Utility, to revise their design and potentially choose a more 
costly and less effective project. The implementation of ARRA Buy 
American requirements on such projects eligible for DWSRF 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 the most fundamental economic purposes of ARRA, to 
create or retain jobs.
    The Drinking Water Unit has reviewed this waiver request and has 
determined that the supporting documentation provided by the Utility is 
sufficient to meet the following criteria listed under Section 1605(b) 
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 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 Utility's design specifications.
    The 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 
assistance 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 manufacturer in the United 
States, the Utility is hereby granted a waiver from the Buy American 
requirements of Section 1605(a) of Public Law 111-5 for the purchase of 
a magnetic flow meter, manufactured in Mexico, for the distribution 
system improvement project specified in the Utility's waiver request of 
July 27, 2011. This supplementary information constitutes the detailed 
written justification required by Section 1605(c) for waivers based on 
a finding under subsection (b).

    Authority:  Public Law 111-5, section 1605.

    Dated: September 29, 2011.
Dennis J. McLerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2011-26330 Filed 10-11-11; 8:45 am]
BILLING CODE 6560-50-P