[Federal Register Volume 76, Number 26 (Tuesday, February 8, 2011)]
[Notices]
[Pages 6786-6787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2773]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9263-5]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to Hernando County Utilities Department, (HCUD), Hernando County, FL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a project waiver of the Buy 
American requirements of ARRA Section 1605 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 Hernando County Utilities Department, 
(HCUD), Hernando County, Florida for the purchase of four Chinese 
manufactured wafer swing check valves. The wafer swing check valves 
will be used for the filter feed pumps as part of the Glen Water 
Reclamation Facility Expansion. The pumps are low-head axial flow pumps 
which discharge into an open channel and require this specific wafer 
check valve which has a low head loss and does not require a full pipe 
downstream to operate properly. The valves are manufactured by 3D 
Valve, a Chinese company with a U.S. branch operated for sales and 
distribution only. The County stated that there are no apparent 
domestic manufactured wafer swing check valves with an outside lever 
and weight in the 12 inch and 16 inch sizes and design as required for 
this project. This is a project specific waiver and only applies to the 
use of the specified product 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. Based on the 
review of the information provided, EPA has concluded that a waiver of 
the Buy American provisions is justified. The Regional Administrator is 
making this determination based on the review and recommendation of the 
EPA Region 4, Water Protection Division, Grants and Infrastructure 
Branch. The Assistant Administrator of the Office of Administration and 
Resources Management has concurred on this decision to make an 
exception to Section 1605 of ARRA. This action permits the County to 
purchase wafer swing check valves manufactured by 3D Valve, for the 
proposed project being implemented by Hernando County Florida.

DATES: Effective Date: December 20, 2010.

FOR FURTHER INFORMATION CONTACT: Cynthia Y. Edwards, Project Officer, 
Grants and SRF Section, Water Protection Division (WPD), (404) 562-
9340, USEPA Region 4, 61 Forsyth St., SW., Atlanta, GA 30303.

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 Sections 1605(a) of Public Law 111-5, Buy American 
requirements, to Hernando County Utilities Department, Hernando County, 
Florida, for the purchase of wafer swing check valves, manufactured by 
3D Valve of China.
    Section 1605 of the ARRA requires that none of the appropriated 
funds 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, or unless a waiver is provided to the recipient by the 
head of the appropriate agency, here the EPA. A waiver may be provided 
if EPA determines that (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 County has requested a waiver from the Buy American Provision 
for the purchase of four wafer style swing check valves with outside 
lever and weight in the 12 inch and 16 inch sizes as part of the Glen 
Water Reclamation Facility Expansion project. The wafer swing check 
valves will prevent backflow into the filter feed pumps at the Glen 
Water Reclamation Facility in Florida. EPA has determined that the 
County's waiver request may be treated as timely even though the 
request was made after the construction contract was signed. Consistent 
with the direction of the OMB Guidance at 2 CFR 176.120, EPA has 
evaluated the County's request to determine if the request constitutes 
a late request. 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, in this case EPA has determined that the 
County's request, though made after the date that the contract was 
signed, can be evaluated as timely because the need for a waiver was 
not reasonably foreseeable.
    The original project specifications incorrectly included the 
standard check valves for the project, which have a high head loss and 
are designed for full pipe systems with some back pressure. The correct 
design specification is for the wafer check valves, which are low-head 
axial flow pumps discharging into an open channel. The engineering firm 
discovered the error during the submittal review process. When 
submitted to the supplier, the contractor was informed that only two 
manufacturers, both non-U.S., could provide the valves specified and 
therefore, did not meet the Buy American requirements.
    The requirements for the check valves (Type 770-steel Wafer Single-
disc Check Valves, Class 125 and Class 150) include (1) conformance to 
a pressure rating of Class 150 per ASME b16.5, and to the ANSI Flange 
class of 125/150; (2) diameters of 12 inch and 16 inch; (3) equipped 
with spring mechanism for non-slam closure without backflow which 
allows the mechanism to close without depending on gravity or backflow 
to close; (4) carbon steel body, stainless steel disc, disc arm, and 
shaft; (5) single-disc configuration.
    EPA provided the County with the names of U.S. manufacturers that 
could potentially provide the specified product. Hernando County 
researched and communicated with these valve manufacturers, Cla-Val and 
Titon Flow Control, and neither manufacturer is able to meet the 
project specifications.

[[Page 6787]]

The County's submission clearly has provided sufficient documentation 
that the relevant manufactured goods are not produced in the United 
States in sufficient and reasonably available quantity and of a 
satisfactory quality to meet its technical specifications.
    The April 28, 2009 EPA Headquarters 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 steel, iron or manufactured goods specified in the project 
plans and designs.''
    EPA's national contractor prepared a technical assessment report 
dated July 14, 2010 based on the submitted waiver request. The report 
determined that the waiver request submittal was complete, that 
adequate technical information was provided, but did not agree with the 
County that there were no available U.S. manufacturers that produced 
the wafer check valves. Subsequently, on September 30, 2010, the EPA 
contractor prepared an amended technical assessment report based on 
supplemental information provided by Hernando County and determined a 
waiver was supported by the available evidence. 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 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 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 Region 4 Grants and Infrastructure Branch has reviewed this 
waiver request and has determined that the supporting documentation 
provided by the County is sufficient to meet the criteria listed under 
ARRA Section 1605(b), OMB's regulation at 2 CFR 176.100 and the 
aforementioned EPA Headquarters Memorandum of April 28, 2009. ARRA 
Section 1605(b)(2) permits a waiver if ``iron, steel, and manufactured 
goods are not produced in the United States in sufficient and 
reasonably available quantities and of a satisfactory quality.'' This 
waiver request meets this criterion and is justified.
    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 grant 
recipients.
    Having established both a proper basis to specify the particular 
good required for this project and that application of the Buy American 
requirements would be inconsistent with the public interest, the County 
is hereby granted a waiver from the Buy American requirements. 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, Hernando County Utilities 
Department is granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of four wafer 
swing check valves as specified in the County's request of July 02, 
2010, with supplemental information provided on September 7, 2010. This 
supplementary information constitutes the detailed written 
justification required by Section 1605(c) for waivers ``based on a 
finding under subsection 9b.'' requirements of Section 1605(a) of 
Public Law 111-5.

    Authority:  Pub. L. 111-5, section 1605.

    Dated: December 20, 2010.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-2773 Filed 2-7-11; 8:45 am]
BILLING CODE 6560-50-P