[Federal Register Volume 75, Number 224 (Monday, November 22, 2010)]
[Notices]
[Pages 71127-71129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29403]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9228-1]


Notice of a Project Waiver of Section 1605 (Buy American 
Rquirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Utah Division of Water Quality (UDWQ)

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 of a satisfactory quality] to the UDWQ for the purchase of 
coconut fiber (coir) woven mats. This is a project-specific waiver and 
only applies to the use of the specified product for the ARRA-funded 
project 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. These coconut fiber woven mats, which are supplied by 
Geo Dynamics in Ogden, UT, are manufactured in India and Sri Lanka, and 
meet the UDWQ's performance specifications and requirements. The 
Regional Administrator is making this determination based on the review 
and recommendations of EPA Region 8's Technical & Financial Services 
Unit. The UDWQ has provided sufficient documentation to support its 
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 ARRA. This action permits the purchase of 
coconut fiber woven mats for the East Canyon Stream Restoration Project 
being implemented by the UDWQ that may otherwise be prohibited under 
Section 1605(a) of the ARRA.

DATES: Effective Date: October 15, 2010.

FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, Recovery Act 
Coordinator, (303) 312-7814, or Brian Friel, SRF Coordinator, (303) 
312-6277, Technical & Financial Services Unit, Water Program, Office of 
Partnerships & Regulatory Assistance, U.S. EPA Region 8, 1595 Wynkoop 
St., Denver, CO 80202.

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 UDWQ for the acquisition of coconut fiber woven mats 
which are manufactured in India and Sri Lanka.
    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

[[Page 71128]]

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.
    This manufactured good will be used as part of the ``East Canyon 
Stream Restoration Project,'' a stream stabilization project in Utah. 
The UDWQ states that only coconut fiber woven mats meet the specific 
needs of this project, which are durability, mat size and 
biodegradability. They indicate that the key characteristics that set 
coconut fiber woven mats apart from other alternatives are a 4-5 year 
in-stream life expectancy followed by 100% biodegradation, and visually 
unobtrusive properties. UDWQ states 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 or will be 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 Sec.  176.80(a)(1) states 
(at 77 FR 18452) that ``The determinations of nonavailability of the 
articles listed at 48 CFR 25.104(a) and the procedures at 48 CFR 
25.103(b)(1) also apply if any of those articles are manufactured goods 
needed in the project. The FAR's list of nonavailable 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 has 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 on-line 
research and contacting suppliers, and all sources indicated that 
coconut fiber woven mats are only manufactured outside of the U.S. 
Therefore, based on the information provided to EPA and to the best of 
our knowledge at this time, coconut fiber woven mats are not 
manufactured in the United States, and no other U.S. manufactured 
product can meet UDWQ's performance specifications and requirements.
    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 UDWQ to revise 
their standards and specifications and to start the bidding process 
again. 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 delay project 
implementation is in direct conflict with a fundamental economic 
purpose of the ARRA, which is to create or retain jobs.
    EPA's national contractor prepared a technical assessment report 
dated September 8, 2010 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. The report 
confirmed the waiver applicant's claim that there are no comparable 
domestic products that can meet the specific durability, size and 
biodegradation needs of this project.
    The Technical & Financial Services Unit has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the UDWQ 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 product 
in the United States in sufficient and reasonably available quantities 
and of a satisfactory quality in order to meet the UDWQ's performance 
specifications and requirements, a waiver from the Buy American 
requirement is justified.
    EPA has determined that the UDWQ's waiver request can be processed 
as timely even though the request was made after the construction 
contract was signed. Consistent with the direction of the OMB Guidance 
at 2 CFR176.120, EPA has evaluated the UDWQ'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 UDWQ's request, though requested after the 
contract date, may be processed as if it were timely. After the 
contract date, on July 20, 2010, the project manager visited the ARRA-
funded Strawberry River Restoration project, which received a waiver 
for the same coir mat product. The success of that project inspired a 
re-design of the East Canyon Stream Restoration project to incorporate 
the identical coir mat product. At that time, the UDWQ realized that 
they would need a waiver. Accordingly, EPA has evaluated the request as 
a timely request.
    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 this project, and that this manufactured 
good was not available from a producer in the United States, the UDWQ 
is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of coconut fiber 
woven mats using ARRA funds as specified in the UDWQ's request of July 
8, 2009. This supplementary information constitutes the detailed 
written justification required by Section 1605(c) for waivers ``based 
on a finding under subsection (b).''

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


[[Page 71129]]


    Dated: October 28, 2010.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2010-29403 Filed 11-19-10; 8:45 am]
BILLING CODE 6560-50-P