Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Lake County Special Districts, 2684-2686 [2011-752]
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Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Notices
standard air relief structure, all valves
that do not meet this standard would
need to be replaced.
Use of alternative valves that do not
meet the IEUA’s specifications would
thus require a substantial redesign of,
delay in, and higher costs for the
project. Because of the IEUA’s current,
extensive installations of ARI valves, the
use of alternative, incompatible valves
would impose continuing high costs
into the future to change spare parts and
staff training in operations and
maintenance, as well as in inferior
performance of the alternative valves.
Procurement of alternative valves would
be inconsistent with basic principles of
sustainable infrastructure and effective
asset management that EPA has
consistently promoted. For all these
reasons, EPA finds that the IEUA’s
specifications for these ARV valves were
justified.
EPA also conducted research to find
potential domestic manufacturers who
can supply ARV valves that meet
IEUA’s technical specifications. Five
domestic manufacturers of ARV valves
were identified by the applicant. EPA’s
national contractor contacted the
domestic manufacturers and inquired as
to whether their products could meet
the IEUA’s specifications. All five
manufacturers indicated that they could
provide similar products, but could not
meet all of the IEUA’s specifications,
particularly with regard to
manufacturing materials and product
design.
Based on these findings, EPA
concludes the IEUA’s claim that there
are no known American manufacturers
of ARV valves meeting the IEUA’s
specifications is supported by the
available information.
The April 28, 2009 EPA
Memorandum for implementation of the
ARRA Buy American provisions of P.L.
111–5, states the quantity of iron, steel,
or relevant manufactured good is
‘‘reasonably available’’ if it is available at
the time and place needed, and in the
proper form or specification as specified
in the project plans and design. The
IEUA’s waiver request articulates a
reasonable and appropriate basis for
choosing the type of technology it chose
for this project in environmental
objectives and performance
specifications. Further, it provides
sufficient documentation to conclude
the relevant manufactured goods are not
produced in the United States of a
satisfactory quality to meet its technical
specifications. The IEUA has
incorporated specific technical design
specifications for the proposed project
based on their needs and provided
information to the EPA indicating there
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17:03 Jan 13, 2011
Jkt 223001
are currently no ARV valves
manufactured in the United States that
have equivalent product specifications.
The IEUA has also provided
certification indicating there are no
systems of comparable quality available
from a domestic manufacturer to meet
its specifications. Based on additional
inquiry by EPA’s national contractor,
there do not appear to be other ARV
valves available to meet the IEUA’s
specifications.
EPA has also evaluated IEUA’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, 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 EPA could still apply
discretion in these late cases as per the
OMB Guidance, which says ‘‘the award
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 EPA will still
consider granting a waiver.
In this case, there are no U.S.
manufacturers that meet IEUA’s project
specification for these ARV valves. The
waiver request was submitted after the
contract date due to a realignment of a
portion of the project which was
discovered in April, 2010. This
realignment led to a project redesign
which wasn’t completed until May 26,
2010, thus leading to the waiver request
on July 15, 2010. Although it was
known that ARV valves would be
needed for this project, it was unknown
how many would be needed and the
associated cost until after the
realignment. There is no indication that
IEUA failed to request a waiver in order
to avoid the requirements of the ARRA,
particularly since there are no
domestically manufactured products
available that meet the project
specifications. EPA will consider
IEUA’s waiver request, a foreseeable late
request, as though it had been timely
made since there is no gain by IEUA and
no loss to the government due to the late
request.
Furthermore, the purpose of the
ARRA is to stimulate economic recovery
by funding current infrastructure
PO 00000
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Sfmt 4703
construction, not to delay shovel ready
projects by requiring entities, like the
IEUA, to revise their design and
potentially choose a more costly and
less efficient project. The imposition of
ARRA Buy American requirements on
such projects eligible for CWSRF
assistance would result in unreasonable
delay and thus displace the ‘‘shovel
ready’’ status for this project. Further
delay of this project would contravene
the most fundamental economic
purposes of the ARRA: To create or
preserve jobs in the United States.
The EPA Region 9 Water Division,
Office of Regional Counsel, EPA’s Buy
American consultant, and EPA’s Office
of Administration and Resource
Management have reviewed this waiver
request and have determined the
supporting documentation provided by
the IEUA is sufficient to meet the
criteria listed under ARRA Section
1605(b) (2) and the EPA April 28, 2009,
memorandum for implementation of
ARRA Buy American provisions of
Public Law 111–5.
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 IEUA is hereby granted a waiver
from the Buy American requirements of
Sections 1605(a) of Public Law 111–5,
for the purchase of the A.R.I. valves,
specified in the IEUA’s request of July
21, 2010. This supplementary
information constitutes the detailed
written justification required by Section
1605(c) for waivers based on a finding
under Section 1605(b)(2).
Authority: Public Law 111–5, Section
1605.
Dated: November 30, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific
Southwest, Region 9.
[FR Doc. 2011–754 Filed 1–13–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9252–8]
Notice of a Project Waiver of Section
1605 (Buy American Requirement) of
the American Recovery and
Reinvestment Act of 2009 (ARRA) to
the Lake County Special Districts
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The EPA is hereby granting a
project waiver of the Buy American
SUMMARY:
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Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Notices
requirements of ARRA Section 1605(a)
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 Lake County Special Districts
(Lake County), California for the
Kelseyville Wastewater Treatment Plant
project. Lake County indicates that the
design for the Kelseyville project
(Project #4593–110 funded by the
California Clean Water State Revolving
Fund (CWSRF) ARRA Loan #08–821)
requires check valves capable of
performing under high pressure at a
wastewater effluent pump station. Lake
County is receiving this waiver to
purchase Noreva V625 non-slam check
valves for this purpose. This waiver
applies only to this project. Other ARRA
projects that wish to use the same
product must apply for a separate
waiver based on their project-specific
circumstances. The Assistant
Administrator of the Office of
Administration and Resources
Management has concurred with this
decision to make an exception under
section 1605(b)(2) of ARRA.
DATES: Effective Date: November 30,
2010.
FOR FURTHER INFORMATION CONTACT:
Abimbola Odusoga, Environmental
Engineer, U.S. EPA Region 9, Water
Division (WTR–4), (415) 972–3437.
SUPPLEMENTARY INFORMATION: In
accordance with ARRA Sections 1605(c)
and 1605(b)(2), EPA hereby provides
notice it is granting a project waiver of
the requirements of Section 1605(a) of
Public Law 111–5, Buy American
requirements, to Lake County for the
acquisition of V625 non-slam check
valves by foreign manufacturer, Noreva.
Section 1605(a) of the ARRA requires
that none of the funds appropriated or
otherwise made available by the ARRA
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. Pursuant to Section
1605(b), the head of each federal agency
is authorized to issue a waiver from the
requirements of Section 1605(a) for a
specific project (project waiver)
provided the agency determines: (1)
Applying these requirements would be
inconsistent with the 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
VerDate Mar<15>2010
17:03 Jan 13, 2011
Jkt 223001
United States will increase the cost of
the overall project by more than 25
percent.
The EPA Administrator signed a
memorandum, dated March 31, 2009,
delegating authority to Regional
Administrators to issue project waivers
within the geographic boundaries of
their respective regions and with respect
to requests by individual recipients of
ARRA financial assistance.
The Kelseyville wastewater treatment
project will enhance the reliability of
the wastewater treatment process to
better serve the Kelseyville community,
which has been classified as a
disadvantaged community. According to
the applicant, the valves will be
installed on a 15,000 foot, 6-inch
effluent line under high pressure (515
feet of static head). Check valve failure
could result in thousands of gallons of
backflow at high velocities causing
flooding in the pump station,
overflowing and spilling of effluent. As
the project site is located in a remote
location, an operator will not be present
at all times, thus increasing the need for
high quality, reliable check valves.
According to Lake County, they require
a product without external adjustments
or devices such as levers, weights,
springs, shock absorbers, or speed
controls. The absence of these features
reduces concerns of accidental operator
error or vandalism in the remote
location.
The applicant included the following
specifications in its contract documents:
• Type V625 non-slam check valves;
• Axial-flow, quick-closing, non-slam
design, spring-loaded annular or
circular and hardened metal-to-metal
seat;
• ANSI Class 300, wafer body to fit
between ANSI B16.5 flanges, rated
working pressure 720 psig at 100
degrees F;
• Cast CF8M stainless steel body and
disc, type 316 stainless steel trim;
• Maximum pressure loss of 1 psi at
900 gpm; and
• Valves to be used in combination
with a hydropneumatic surge tank.
Upon review, two manufacturers
appeared to have products that met
most of the project specification
requirements. One of these
manufacturers was contacted by Lake
County and provided a written
statement indicating that the use of the
hydropneumatic surge tank would
preclude the use of their valves in this
installation. The second manufacturer
was contacted by the review team. The
second manufacturer failed to meet the
project specification requirements for
the following reasons:
PO 00000
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2685
• The specification lists a maximum
pressure loss of 1 psi at 900 gpm,
whereas the head loss on the domestic
valves is 3 psi; and
• The specification lists a hardened
metal-to-metal seat. The domestic
products were unable to fulfill this
requirement.
Based on these findings, EPA concurs
with Lake County’s claim that no known
domestic manufacturers of V625 nonslam check valves are available to
satisfy Lake County’s specifications.
The April 28, 2009, EPA
memorandum for implementation of the
ARRA Buy American provisions of
Public Law 111–5 states the quantity of
iron, steel, or relevant manufactured
good is ‘‘reasonably available’’ if it is
available at the time and place needed,
and in the proper form or specification
as specified in the project plans and
design. Lake County’s waiver request
articulates a reasonable and appropriate
basis for selecting the type of technology
it chose for this project in
environmental objectives and
performance specifications. Further, it
provides sufficient documentation to
conclude the relevant manufactured
goods are not produced in the United
States of a satisfactory quality to meet
its technical specifications. Lake County
has incorporated specific technical
design specifications for the proposed
project based on their needs and has
provided information to the EPA
indicating there are currently no V625
non-slam check valves manufactured in
the United States that have equivalent
product specifications. Based on inquiry
by EPA’s national contractor, there do
not appear to be other V625 non-slam
check valves available to meet Lake
County’s specifications.
EPA has also evaluated Lake County’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, 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 EPA could still apply
discretion in these late cases as per the
OMB Guidance, which says ‘‘the award
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
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2686
Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Notices
the ARRA recipient or loss on behalf of
the government, then EPA will still
consider granting a waiver.
In this case, there are no U.S.
manufacturers that meet Lake County’s
project specification for these check
valves capable of performing under high
pressure. Due to a delay in the
construction of this project, Lake
County was not made aware that there
are no domestic equivalents for the
valves in question until well after the
contract was signed. There is no
indication that Lake County failed to
request a waiver in order to avoid the
requirements of the ARRA, particularly
since there are no domestically
manufactured products available that
meet the project specifications. EPA will
consider Lake County’s waiver request,
a foreseeable late request, as though it
had been timely made since there is no
gain by Lake County and no loss by the
government due to the late request.
Furthermore, the purpose of the
ARRA is to stimulate economic recovery
by funding current infrastructure
construction, not to delay shovel ready
projects by requiring entities, like Lake
County, to revise their design and
potentially choose a more costly and
less efficient project. The imposition of
ARRA Buy American requirements on
such projects eligible for CWSRF
assistance would result in unreasonable
delay and thus displace the ‘‘shovel
ready’’ status for this project. Further
delay of this project would contravene
the most fundamental economic
purposes of the ARRA: To create or
preserve jobs in the United States.
EPA Region 9’s Water Division and
Office of Regional Counsel, EPA’s Buy
American consultant, and EPA’s Office
of Administration and Resource
Management have reviewed this waiver
request and have determined the
supporting documentation provided by
Lake County is sufficient to meet the
criteria listed under ARRA Section
1605(b)(2) and the EPA April 28, 2009,
memorandum for implementation of
ARRA Buy American provisions of
Public Law 111–5.
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,
Lake County is hereby granted a waiver
from the Buy American requirements of
Sections 1605(a) of Public Law 111–5,
for the purchase of Noreva V625 nonslam check valves, specified in Lake
County’s request of June 8, 2010. This
supplementary information constitutes
the detailed written justification
required by Section 1605(c) for waivers
VerDate Mar<15>2010
17:03 Jan 13, 2011
Jkt 223001
based on a finding under Section
1605(b)(2).
Authority: Public Law 111–5, Section
1605.
Dated: November 30, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific
Southwest, Region 9.
[FR Doc. 2011–752 Filed 1–13–11; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
[DA 10–2320]
Video Programming and Emergency
Access Advisory Committee;
Announcement of Establishment and
Members; and Announcement of Date
of First Meeting
Federal Communications
Commission.
ACTION: Notice.
AGENCY:
This document announces the
establishment and appointment of
members of the Video Programming and
Emergency Access Advisory Committee
(‘‘Committee’’ or ‘‘VPEAAC’’) of the
Federal Communications Commission
(‘‘Commission’’). This document also
announces the change of the
Committee’s popular name to the Video
Programming Accessibility Advisory
Committee (‘‘VPAAC’’). The Commission
further announces the date of the
Committee’s first meeting.
DATES: The Committee was established
on December 7, 2010. The first meeting
of the Committee will take place on
Thursday, January 13, 2011, 9 a.m. to 5
p.m., at Commission Headquarters.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Pam
Gregory, Consumer and Governmental
Affairs Bureau, 202–418–2498 (voice),
202–418–1169 (TTY), or
Pam.Gregory@fcc.gov (e-mail); or Alison
Neplokh, Media Bureau, 202–418–1083,
Alison.Neplokh@fcc.gov (e-mail).
SUPPLEMENTARY INFORMATION: On
December 7, 2010, in document DA–
2320, Chairman Julius Genachowski
announced the establishment and
appointment of members of the
VPEAAC, following a nominations
period that closed on November 1, 2010.
This Committee is established in
accordance with the Twenty-First
Century Communications and Video
Accessibility Act of 2010, Public Law
111–260 (‘‘Communications and Video
Accessibility Act’’ or ‘‘CVAA’’). To avoid
SUMMARY:
PO 00000
Frm 00042
Fmt 4703
Sfmt 4703
confusion with the Emergency Access
Advisory Committee (a second
committee created under the CVAA),
the Video Programming and Emergency
Access Advisory Committee will
commonly be referred to as the Video
Programming Accessibility Advisory
Committee (VPAAC). All meetings of
the VPAAC shall be open to the public.
Its purpose is to develop
recommendations on closed captioning
of Internet programming previously
captioned on television; the
compatibility between video
programming delivered using Internet
protocol and devices capable of
receiving and displaying such
programming in order to facilitate
access to captioning, video description
and emergency information; video
description and accessible emergency
information on television programming
delivered using Internet protocol or
digital broadcast television; accessible
user interfaces on video programming
devices; and accessible programming
guides and menus. Within six (6)
months of its first meeting, the VPAAC
shall submit recommendations
concerning the provision of closed
captions for Internet-delivered video
programming and the ability of video
devices to pass through closed captions
contained on Internet-based video
programming. By April 8, 2012, the
VPAAC shall submit recommendations
on the remaining issues listed above. At
the VPAAC’s first meeting, the
Committee will be divided into four
working groups, each of which will be
assigned specific tasks related to the
Committee’s purposes.
The Chairman of the Commission is
appointing forty-five (45) members of
the VPAAC. Of this number, ten (10)
represent interests of persons with
disabilities; six (6) represent interests of
closed captioning and video description
providers; eleven (11) represent device
manufacturers; four (4) represent
Internet and software companies; two
(2) represent broadcasters; and twelve
(12) represent video programming
distributors and providers. The
VPAAC’s membership meets the
CVAA’s goals of assembling a
Committee that has the technical
knowledge and engineering experience
needed to meet the tasks assigned. All
appointments are effective immediately
and shall terminate December 7, 2012,
or when the Committee is terminated,
whichever is earlier.
The membership of the VPAAC,
designated by organization or affiliation,
as appropriate, is as follows:
• Adobe, Inc.—Andrew Kirkpatrick
• Alliance for Telecommunications
Industry Solutions—Phyllis Anderson
E:\FR\FM\14JAN1.SGM
14JAN1
]]>Agencies
[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Notices]
[Pages 2684-2686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-752]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9252-8]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the Lake County Special Districts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The EPA is hereby granting a project waiver of the Buy
American
[[Page 2685]]
requirements of ARRA Section 1605(a) 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 Lake County Special Districts (Lake County), California
for the Kelseyville Wastewater Treatment Plant project. Lake County
indicates that the design for the Kelseyville project (Project
4593-110 funded by the California Clean Water State Revolving
Fund (CWSRF) ARRA Loan 08-821) requires check valves capable
of performing under high pressure at a wastewater effluent pump
station. Lake County is receiving this waiver to purchase Noreva V625
non-slam check valves for this purpose. This waiver applies only to
this project. Other ARRA projects that wish to use the same product
must apply for a separate waiver based on their project-specific
circumstances. The Assistant Administrator of the Office of
Administration and Resources Management has concurred with this
decision to make an exception under section 1605(b)(2) of ARRA.
DATES: Effective Date: November 30, 2010.
FOR FURTHER INFORMATION CONTACT: Abimbola Odusoga, Environmental
Engineer, U.S. EPA Region 9, Water Division (WTR-4), (415) 972-3437.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and
1605(b)(2), EPA hereby provides notice it is granting a project waiver
of the requirements of Section 1605(a) of Public Law 111-5, Buy
American requirements, to Lake County for the acquisition of V625 non-
slam check valves by foreign manufacturer, Noreva. Section 1605(a) of
the ARRA requires that none of the funds appropriated or otherwise made
available by the ARRA 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. Pursuant to Section 1605(b), the head of
each federal agency is authorized to issue a waiver from the
requirements of Section 1605(a) for a specific project (project waiver)
provided the agency determines: (1) Applying these requirements would
be inconsistent with the 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 EPA Administrator signed a memorandum, dated March 31, 2009,
delegating authority to Regional Administrators to issue project
waivers within the geographic boundaries of their respective regions
and with respect to requests by individual recipients of ARRA financial
assistance.
The Kelseyville wastewater treatment project will enhance the
reliability of the wastewater treatment process to better serve the
Kelseyville community, which has been classified as a disadvantaged
community. According to the applicant, the valves will be installed on
a 15,000 foot, 6-inch effluent line under high pressure (515 feet of
static head). Check valve failure could result in thousands of gallons
of backflow at high velocities causing flooding in the pump station,
overflowing and spilling of effluent. As the project site is located in
a remote location, an operator will not be present at all times, thus
increasing the need for high quality, reliable check valves. According
to Lake County, they require a product without external adjustments or
devices such as levers, weights, springs, shock absorbers, or speed
controls. The absence of these features reduces concerns of accidental
operator error or vandalism in the remote location.
The applicant included the following specifications in its contract
documents:
Type V625 non-slam check valves;
Axial-flow, quick-closing, non-slam design, spring-loaded
annular or circular and hardened metal-to-metal seat;
ANSI Class 300, wafer body to fit between ANSI B16.5
flanges, rated working pressure 720 psig at 100 degrees F;
Cast CF8M stainless steel body and disc, type 316
stainless steel trim;
Maximum pressure loss of 1 psi at 900 gpm; and
Valves to be used in combination with a hydropneumatic
surge tank.
Upon review, two manufacturers appeared to have products that met
most of the project specification requirements. One of these
manufacturers was contacted by Lake County and provided a written
statement indicating that the use of the hydropneumatic surge tank
would preclude the use of their valves in this installation. The second
manufacturer was contacted by the review team. The second manufacturer
failed to meet the project specification requirements for the following
reasons:
The specification lists a maximum pressure loss of 1 psi
at 900 gpm, whereas the head loss on the domestic valves is 3 psi; and
The specification lists a hardened metal-to-metal seat.
The domestic products were unable to fulfill this requirement.
Based on these findings, EPA concurs with Lake County's claim that
no known domestic manufacturers of V625 non-slam check valves are
available to satisfy Lake County's specifications.
The April 28, 2009, EPA memorandum for implementation of the ARRA
Buy American provisions of Public Law 111-5 states the quantity of
iron, steel, or relevant manufactured good is ``reasonably available''
if it is available at the time and place needed, and in the proper form
or specification as specified in the project plans and design. Lake
County's waiver request articulates a reasonable and appropriate basis
for selecting the type of technology it chose for this project in
environmental objectives and performance specifications. Further, it
provides sufficient documentation to conclude the relevant manufactured
goods are not produced in the United States of a satisfactory quality
to meet its technical specifications. Lake County has incorporated
specific technical design specifications for the proposed project based
on their needs and has provided information to the EPA indicating there
are currently no V625 non-slam check valves manufactured in the United
States that have equivalent product specifications. Based on inquiry by
EPA's national contractor, there do not appear to be other V625 non-
slam check valves available to meet Lake County's specifications.
EPA has also evaluated Lake County'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, 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
EPA could still apply discretion in these late cases as per the OMB
Guidance, which says ``the award 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
[[Page 2686]]
the ARRA recipient or loss on behalf of the government, then EPA will
still consider granting a waiver.
In this case, there are no U.S. manufacturers that meet Lake
County's project specification for these check valves capable of
performing under high pressure. Due to a delay in the construction of
this project, Lake County was not made aware that there are no domestic
equivalents for the valves in question until well after the contract
was signed. There is no indication that Lake County failed to request a
waiver in order to avoid the requirements of the ARRA, particularly
since there are no domestically manufactured products available that
meet the project specifications. EPA will consider Lake County's waiver
request, a foreseeable late request, as though it had been timely made
since there is no gain by Lake County and no loss by the government due
to the late request.
Furthermore, the purpose of the ARRA is to stimulate economic
recovery by funding current infrastructure construction, not to delay
shovel ready projects by requiring entities, like Lake County, to
revise their design and potentially choose a more costly and less
efficient project. The imposition of ARRA Buy American requirements on
such projects eligible for CWSRF assistance would result in
unreasonable delay and thus displace the ``shovel ready'' status for
this project. Further delay of this project would contravene the most
fundamental economic purposes of the ARRA: To create or preserve jobs
in the United States.
EPA Region 9's Water Division and Office of Regional Counsel, EPA's
Buy American consultant, and EPA's Office of Administration and
Resource Management have reviewed this waiver request and have
determined the supporting documentation provided by Lake County is
sufficient to meet the criteria listed under ARRA Section 1605(b)(2)
and the EPA April 28, 2009, memorandum for implementation of ARRA Buy
American provisions of Public Law 111-5.
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, Lake County is hereby
granted a waiver from the Buy American requirements of Sections 1605(a)
of Public Law 111-5, for the purchase of Noreva V625 non-slam check
valves, specified in Lake County's request of June 8, 2010. This
supplementary information constitutes the detailed written
justification required by Section 1605(c) for waivers based on a
finding under Section 1605(b)(2).
Authority: Public Law 111-5, Section 1605.
Dated: November 30, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific Southwest, Region 9.
[FR Doc. 2011-752 Filed 1-13-11; 8:45 am]
BILLING CODE 6560-50-P
