SUPPLEMENTARY INFORMATION:

In accordance with section 1605(c) of the Recovery Act and with section 176.80 of Title 2 of the Code of Federal Regulations, the Commission hereby provides notice that on February 17, 2010, the Executive Director granted a limited waiver of section 1605 of the Recovery Act (Buy American provision) with respect to certain water quality treatment and monitoring equipment components that will be used in a project funded under the Recovery Act. The basis for this waiver is a non-availability determination pursuant to section 1605(b)(2) of the Recovery Act.

I. Background

Agreement No. 09FCUT-RA04 June Sucker Facility Improvements—Fisheries Experiment Station between the Commission and the State of Utah, Division of Wildlife Resources (Division) was entered into pursuant to the Recovery Act, for the purpose of funding hatchery improvements for culture of June sucker, an endangered species. The hatchery improvements include expansion of a recirculation system that allows optimal water temperatures for culture of June sucker. The recirculation system requires water treatment and water quality monitoring.

In Section 1605(a) of the Recovery Act, the Buy American provision states that none of the funds appropriated by the Act, “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 a Federal department or agency waives the Buy American provision, then the head is required to publish a ( printed page 10867) detailed justification in the Federal Register. Finally, section 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.

II. Nonavailability Finding

The Commission's Executive Director determined—as applied to certain water quality treatment and monitoring equipment components to be used in a hatchery rearing June sucker, an endangered species—application of the Buy American provision is not possible because the components, specifically rotating drum filter upgrades and a water quality monitoring system expansion, are not available from American manufacturers in sufficient and reasonably available commercial quantities of a satisfactory quality.

Expansion of the recirculation system requires adding a second drum filter for aquaculture water treatment. The existing system uses a drum filter manufactured by PRAqua Supplies Ltd.—Nanaimo, British Columbia, Canada. The Division owns an RFM 4872 drum filter also manufactured by PRAqua Supplies Ltd that will be used for the system expansion. This drum filter requires modification with new drum filter seals, screen panels and a new control panel to be suitable for use in the aquaculture system. This will allow the expanded system to match the existing equipment and drum filter.

The existing recirculation facility is equipped with a variety of automated sensors that allow system operators to monitor water quality, flow and temperature in the fish hatchery. The existing equipment was provided and installed by Point Four Systems Inc. of Coquitlam, BC, Canada.

Recirculation system expansion will also require new components to expand aquaculture water quality monitoring. New components will include additional oxygen sensors, flow meters and related control panel wiring to connect to the existing system. Use of components sharing the same manufacturer will allow efficient operation of equipment that is in place. New monitoring system components that will function with existing components are not available from American manufacturers in sufficient and reasonably available commercial quantities of a satisfactory quality.

III. Waiver

On February 17, 2010 based on the non-availability finding discussed above and pursuant to ARRA section 1605(c), the Commission's Executive Director granted a limited waiver of the Recovery Act's Buy American requirements with respect to Agreement No. 09FCUT-RA04 between the Commission and Division for the aforementioned components of a hatchery recirculation system.