[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]
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