[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Notices]
[Pages 5516-5518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2438]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9627-3]


Notice of a Project Waiver of the American Recovery and 
Reinvestment Act of 2009 (ARRA) to the Cuyahoga County Board of Health 
for the Bear Creek Restoration Project in Warrensville Heights, OH, and 
the Laurel Creek Restoration Project in Twinsburg, OH

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 Cuyahoga County Board of Health (County) 
for the Bear Creek Restoration Project in Warrensville Heights, Ohio, 
and the Laurel Creek Restoration Project in Twinsburg, Ohio, for 
coconut fiber (coir) woven mats to be installed as part of their stream 
bank stabilization/restoration projects. This is a project-specific 
waiver and only applies to the use of the specified product for the 
ARRA funded projects being proposed. Any other ARRA project that may 
wish to use the same product must apply for a separate waiver based on 
project specific circumstances. The coir woven mats under consideration 
are manufactured in India and Sri Lanka and meet the projects' 
technical specifications and requirements. The

[[Page 5517]]

Regional Administrator is making this determination based on the review 
and recommendations of EPA Region 5's Water Division. The County has 
provided sufficient documentation to support each individual request. 
The Assistant Administrator of the Office of Administration and 
Resources Management has concurred on this decision to make an 
exception to Section 1605 of the ARRA. This action permits the purchase 
of coir woven mats for the proposed projects that may otherwise be 
prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: February 3, 2012.

FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager, 
(312) 886-0189, or Meonii Bristol, SRF Program Manager, (312) 353-4716, 
EPA Water Division, State and Tribal Branch, 77 West Jackson Boulevard, 
Chicago, IL 60604.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, EPA hereby provides notice that it is granting a project 
waiver to the Cuyahoga County Board of Health for the Bear Creek 
Restoration Project in Warrensville Heights, Ohio, and the Laurel Creek 
Restoration Project in Twinsburg, Ohio, for the acquisition of coir 
woven mats manufactured outside of the United States.
    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 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; (3) inclusion of iron, steel, and the cost of the overall 
project by more than 25 percent.
    These manufactured goods will be used for streambank stabilization 
and erosion control. Only coir woven mats meet the specific needs of 
each project because they are completely biodegradable, have a high 
resistance to shear stresses and flows, and are visually unobtrusive. 
The County contends that coconut fibers are more durable than straw and 
other materials used in alternative mat products, and they do not 
require the incorporation of polypropylene and/or other synthetic 
products that are not 100% biodegradable.
    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 reasonably available quantity as 
``the quantity of iron, steel, or relevant manufactured good is 
available at the time needed and place needed, and in the proper form 
or specification as specified in the project plans and design.'' The 
OMB ARRA Buy American Guidance cites the Federal Acquisition Regulation 
(FAR) as an appropriate reference for availability waiver inquiries. 
Specifically, the OMB Guidance at Section 176.80(a)(1) states (at 77 FR 
18452) that ``The determinations of nonavailability of the articles 
includes `` `Fibers of the following types: * * * coir,' '' thereby 
establishing a presumption of lack of U.S. availability. The FAR 
procedures at 48 CFR 25.103(b)(1) specified as required in the OMB 
Guidance state that: (1)(i) A nonavailability determination had been 
made for the articles listed in 25.104. This determination does not 
necessarily mean that there is no domestic source for the listed items, 
but that domestic sources can only meet 50 percent or less of total 
U.S. government and nongovernment demand; (ii) Before acquisition of an 
article on the list, the procuring agency is responsible to conduct 
market research appropriate to the circumstances, including seeking of 
domestic sources. The applicant met the procedures specified for the 
availability inquiry as appropriate to the circumstances by conducting 
online research and contacting suppliers, and all sources indicated 
that coir woven mats are only manufactured outside of the United 
States.
    EPA's national contractor prepared a technical assessment report 
based on the submitted waiver request. The report determined that the 
waiver request submittal was complete, that adequate technical 
information was provided, and that there were no significant weaknesses 
in the justification provided. Therefore, based on the information 
provided to EPA and to the best of our knowledge at this time, the coir 
woven mats necessary for these projects are not manufactured in the 
United States, and no other domestically manufactured products can meet 
the County's project performance specifications and requirements.
    EPA has also evaluated the 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 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 the 
County's project specifications for the purchase of coir woven mats. 
The loans for both projects were signed on January 28, 2010, making 
them two of the last projects to receive ARRA money in Ohio. Both loans 
were design/build, meaning that much design work had to be done before 
construction could be undertaken. Further delaying construction 
activities was the need to negotiate and sign easement and land-use 
convenants with neighboring landowners. Therefore, the County was not 
aware that there were no domestic equivalents for the coir woven mats 
in question until early 2011. There is no indication that the 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 the County's waiver request a foreseeable late request, as 
though it had been timely made since there is no gain by the County and 
no loss by the government due to the late request.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are ``shovel ready'' by requiring agencies, such as the County, to 
revise their standards and specifications. The imposition of ARRA Buy 
American requirements on such projects otherwise eligible for ARRA 
State Revolving Fund assistance would result in unreasonable delay and 
thus displace the ``shovel ready'' status for this project. To further

[[Page 5518]]

delay project implementation is in direct conflict with a fundamental 
economic purpose of the ARRA, which is to create or retain jobs.
    EPA has reviewed this waiver request and has determined that the 
information and supporting documentation provided by the County is 
sufficient to meet the criteria listed under Section 1605(b) of the 
ARRA 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) of 
the ARRA. Due to the lack of production of this item in the United 
States in sufficient and reasonably available quantities and of a 
satisfactory quality in order to meet the County's performance 
specifications and requirements, a waiver from the Buy American 
requirement is justified.
    The March 31, 2009, Delegation of Authority Memorandum provided 
Regional Administrators with the authority to issue exceptions to 
Section 1605 of the 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 these projects, and that this manufactured 
good was not available from a producer in the United States, the County 
is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of coir woven mats 
using ARRA funds as specified in the community's request. 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 15, 2011.
Susan Hedman,
Regional Administrator.
[FR Doc. 2012-2438 Filed 2-2-12; 8:45 am]
BILLING CODE 6560-50-P