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, 5516-5518 [2012-2438]
Download as PDF
<![CDATA[
5516
Federal Register / Vol. 77, No. 23 / Friday, February 3, 2012 / Notices
were likely to overestimate GWPs
(maybe by an order of magnitude or
more) rather than underestimate them.
Because 40 CFR 98.123(c)(1) allows the
use of engineering calculations only
when estimated emissions fall below
10,000 metric tons CO2e, an
overestimated GWP is considered
acceptable by EPA in the context of 40
CFR 98.123(c)(1). Therefore, the
conclusion of EPA’s review was that the
background information was adequate
and that it justified the use of the
alternative GWPs in the context of 40
CFR 98.123(c)(1)(vi).
The overestimation of the GWPs
submitted by both Honeywell and
DuPont results from the fact that the
commonly-used estimation techniques
employed in the analyses cited by both
companies use simplifying assumptions
that are not fully applicable to
compounds that are short-lived in the
atmosphere—defined here as any
compound with an atmospheric lifetime
less than 1 year. (All of the compounds
for which provisional GWPs were
requested are short-lived based on this
definition.) Essentially, the estimation
techniques assume that the compounds
are well-mixed in the atmosphere, but
short-lived compounds do not last long
enough to become well mixed (i.e.,
spread evenly over all longitudes,
latitudes, and altitudes). Instead, their
concentrations decrease rapidly with
distance from their emission point,
particularly with changing latitude and
altitude.
The assumption that the compounds
are well mixed affects the estimates of
both of the primary components of
GWPs: Atmospheric lifetime and
radiative forcing. In the analyses cited
by the companies, atmospheric lifetimes
are estimated either by assuming that
the short-lived compound is exposed to
the global average concentration of
hydroxyl radicals (OH) or by deriving
the lifetime of the short-lived (i.e., not
well mixed) compound from the known
lifetime of a long-lived (i.e., well mixed)
reference compound based on the
compounds’ respective reaction rates
with OH. Both approaches are likely to
overestimate the lifetime (and therefore
the GWP) of the short-lived compound
because they essentially assume that the
concentration of the short-lived
compound remains constant with
altitude. This overestimates the share of
the short-lived compound that resides
higher in the atmosphere, where lower
OH concentrations, temperatures, and
pressures slow reaction rates and
lengthen lifetimes. Radiative forcing is
also estimated based on the assumption
that the concentration of the short-lived
compound remains constant with
altitude. This assumption is likely to
overestimate the radiative forcing (and
therefore the GWP) of short-lived
compounds because, again, it
overestimates the share of the shortlived compound that resides higher in
the atmosphere. GHGs higher in the
atmosphere (i.e., near the tropopause)
are responsible for more radiative
forcing than the same GHGs lower in the
atmosphere. (As discussed in the
Supporting Analysis, this is related to
the fact that temperatures near the
tropopause are lower than those at the
surface.) Together, these assumptions
may result in overestimates of the GWP
by a factor of ten or more. The rationale
for EPA’s preliminary determination is
discussed in more detail in the
Supporting Analysis, which is available
in the docket.
The provisional GWPs are shown in
Table 1.
TABLE 1—PROVISIONAL GLOBAL WARMING POTENTIALS FOR FLUORINATED GREENHOUSE GASES FOR WHICH EPA HAS
MADE PRELIMINARY DETERMINATIONS THAT ALL APPROVAL CRITERIA HAVE BEEN MET FOR THE PURPOSES OF THE
CALCULATIONS IN 98.123(C)(1) OF SUBPART L
Fluorinated GHG
CAS No.
HFC–1234ze ..............................................................................................................................................
Hexafluoropropylene (HFP) .......................................................................................................................
Perfluoromethyl vinyl ether (PMVE) ..........................................................................................................
Tetrafluoroethylene (TFE) ..........................................................................................................................
Trifluoro propene (TFP) .............................................................................................................................
Vinyl fluoride (VF) ......................................................................................................................................
Vinylidine fluoride (VF2) .............................................................................................................................
EPA will review public comment on
this notice prior to taking final action on
its preliminary determinations. The
final determinations will be placed in
the docket for this action.
Dated: January 27, 2012.
Sarah Dunham,
Director, Office of Atmospheric Programs.
[FR Doc. 2012–2442 Filed 2–2–12; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Notice.
tkelley on DSK3SPTVN1PROD with NOTICES
AGENCY:
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
SUMMARY:
VerDate Mar<15>2010
20:48 Feb 02, 2012
Jkt 226001
PO 00000
Frm 00037
Fmt 4703
Sfmt 4703
29118–24–9
116–15–4
1187–93–5
116–14–3
677–21–4
75–02–5
75–38–7
Provisional GWP
6
0.25
3
0.02
3
0.7
0.9
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 projectspecific 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
E:\FR\FM\03FEN1.SGM
03FEN1
tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 23 / Friday, February 3, 2012 / Notices
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
VerDate Mar<15>2010
20:48 Feb 02, 2012
Jkt 226001
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.
PO 00000
Frm 00038
Fmt 4703
Sfmt 4703
5517
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 landuse 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
E:\FR\FM\03FEN1.SGM
03FEN1
5518
Federal Register / Vol. 77, No. 23 / Friday, February 3, 2012 / Notices
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.
tkelley on DSK3SPTVN1PROD with NOTICES
Dated: September 15, 2011.
Susan Hedman,
Regional Administrator.
[FR Doc. 2012–2438 Filed 2–2–12; 8:45 am]
BILLING CODE 6560–50–P
VerDate Mar<15>2010
20:48 Feb 02, 2012
Jkt 226001
ENVIRONMENTAL PROTECTION
AGENCY
[FRL 9627–1]
Proposed Consent Decree, Clean Air
Act Citizen Suit
Environmental Protection
Agency (EPA)
ACTION: Notice of proposed consent
decree; Request for public comment
AGENCY:
In accordance with section
113(g) of the Clean Air Act, as amended
(‘‘CAA’’ or the ‘‘Act’’), 42 U.S.C.
7413(g), notice is hereby given of a
proposed consent decree to settle a
lawsuit filed by WildEarth Guardians in
the United States District Court for the
District of Colorado: WildEarth
Guardians v. Jackson, Case No. 1:11–
cv–02227–WJM–KLM (D. Colo.).
Plaintiff filed this suit to compel the
Administrator to respond to an
administrative petition requesting that
EPA object to a CAA Title V operating
permit issued by the Colorado
Department of Public Health and
Environment, Air Pollution Division, to
CF&I Steel, d/b/a EVRAZ Rocky
Mountain Steel, to operate its
steelmaking facility in Pueblo, Colorado.
Under the terms of the proposed
consent decree, EPA agrees to respond
to the petition by May 31, 2012, or
within 30 days of the entry date of the
consent decree by the court, whichever
is later.
DATES: Written comments on the
proposed consent decree must be
received by March 5, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID number EPA–
HQ–OGC–2012–0094, online at
www.regulations.gov (EPA’s preferred
method); by email to
oei.docket@epa.gov; by mail to EPA
Docket Center, Environmental
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; or by
hand delivery or courier to EPA Docket
Center, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington,
DC, between 8:30 a.m. and 4:30 p.m.
Monday through Friday, excluding legal
holidays. Comments on a disk or CD–
ROM should be formatted in Word or
ASCII file, avoiding the use of special
characters and any form of encryption,
and may be mailed to the mailing
address above.
FOR FURTHER INFORMATION CONTACT:
Melina Williams, Air and Radiation Law
Office (2344A), Office of General
Counsel, U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone: (202)
SUMMARY:
PO 00000
Frm 00039
Fmt 4703
Sfmt 4703
564–3406; fax number (202) 564–5603;
email address:
williams.melina@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Additional Information About the
Proposed Consent Decree
This proposed consent decree would
resolve a lawsuit alleging that the
Administrator failed to perform a
nondiscretionary duty to grant or deny,
within 60 days of submission, an
administrative petition to object to a
CAA Title V permit issued by the
Colorado Department of Public Health
and Environment, Air Pollution
Division, to CF&I Steel, d/b/a EVRAZ
Rocky Mountain Steel, to operate its
steelmaking facility in Pueblo, Colorado.
Under the terms of the proposed
consent decree, EPA agrees to respond
to the petition by May 31, 2012, or
within 30 days of the entry date of the
consent decree by the court, whichever
is later. In addition, the proposed
consent decree provides that the United
States agrees to pay $2,535.00 as full
settlement of all claims for attorney’s
fees, costs, and expenses incurred in
this lawsuit through the date of lodging
the consent decree. The proposed
consent decree also states that when
EPA’s obligations under Paragraphs 2
and 3, which include the
aforementioned obligations to sign a
response to the administrative petition
by a certain date and to pay attorney
fees and litigation costs, have been
completed the case shall be terminated
and dismissed with prejudice.
For a period of thirty (30) days
following the date of publication of this
notice, the Agency will accept written
comments relating to the proposed
consent decree from persons who were
not named as parties or intervenors to
the litigation in question. EPA or the
Department of Justice may withdraw or
withhold consent to the proposed
consent decree if the comments disclose
facts or considerations that indicate that
such consent is inappropriate,
improper, inadequate, or inconsistent
with the requirements of the Act. Unless
EPA or the Department of Justice
determines that consent to this consent
decree should be withdrawn, the terms
of the consent decree will be affirmed.
II. Additional Information About
Commenting on the Proposed Consent
Decree
A. How can I get a copy of the proposed
consent decree?
The official public docket for this
action (identified by Docket ID No.
EPA–HQ–OGC–2012–0094) contains a
copy of the proposed consent decree.
E:\FR\FM\03FEN1.SGM
03FEN1
]]>Agencies
[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Notices]
[Pages 5516-5518]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2438]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
