EPA has released an updated version of the nationwide de minimus waiver of Section 1605 (the Buy American provision) of the American Recovery and Reinvestment Act of 2009. EPA originally issued this waiver on June 2, 2009. The waiver was given for “de minimis incidental components” which are minor, or small-scale components that “cumulatively comprise no more than a total of 5 percent of the total cost of the materials used in and incorporated” into eligible water infrastructure projects funded by the ARRA. According to EPA, every water infrastructure project involves the use of “thousands of miscellaneous, generally low-cost components that are essential for, but incidental to, the construction and are incorporated into the physical structure of the project, such as nuts, bolts, other fasteners, tubing, gaskets, etc.” EPA said it “is not in the public interest” to impose ARRA’s Buy American requirements, as outlined in Section 1605 of the stimulus law, on these de minimis components.
This updated version, released August 11, 2009, revises the terms under which that waiver may be applied; specifically it repeals the need to identify both the country of origin and possible alternatives for these incidental components. EPA reasoned that for many of these components, “the country of manufacture and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business.” The new terms of this waiver are effective as of July 24, 2009.
EPA regional offices also continue to issue project-specific waivers. The latest waiver was a regional waiver of the Buy American provisions for the Hooksett, N.H. Sewer Commission. They were granted a waiver for the purchase of foreign manufactured polyethylene Biofilm chip media. According to the waiver, “HSC’s proposed upgrade of its wastewater treatment facility upgrade will utilize an Integrated Fixed Film Activated Sludge (IFAS) process, in which the AnoxKaldnesTM Biochip-M IFAS media manufactured in Germany by Kruger, Inc. will meet the HSC’s design specifications.”
Individual projects must apply for a separate waivers based on project-specific circumstances even if waivers have already been granted for specific materials or equipment. EPA has left the door open for addtional national waivers and according to EPA officials no waiver requests have been rejected to date.
For more information on EPA Buy American requirements, including EPA webcasts, please click here.
For additional information, please contact Perry L. Fowler at fowlerp@agc.org or (703)837-5321.