[Federal Register Volume 75, Number 36 (Wednesday, February 24, 2010)]
[Notices]
[Pages 8347-8348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3684]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -9117-3]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to Mecklenburg County, NC, Land Use and Environmental Services Agency

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 
Section1605(b)(2) [manufactured goods are not produced in the United 
States of a satisfactory quality] to the Mecklenburg County Land Use 
and Environmental Services Agency, 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 HD 
Supply in Charlotte, NC, are manufactured in India and Sri Lanka, and 
meet Mecklenburg County's performance specifications and requirements. 
The Acting Regional Administrator is making this determination based on 
the review and recommendations of EPA Region 4. The County 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 Torrence Creek Stream Restoration Project being implemented by the 
Mecklenburg County Land Use and Environmental Services Agency that may 
otherwise be prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: January 28, 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(b)(2) of Public Law 111-5, Buy American 
requirements, to Mecklenburg County Land Use and Environmental Services 
Agency, Mecklenburg County, North Carolina, for the purchase of coconut 
fiber woven mats 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 is produced in the 
United States, or unless a waiver is provided to the recipient by the 
head of the appropriate agency, herein 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.
    This manufactured good will be used as part of the ``Torrence Creek 
Stream Restoration Project,'' a stream stabilization project in North 
Carolina. The County 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 3+ year 
in-stream life expectancy followed by 100% biodegradation, and visually 
unobtrusive properties. The County 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

[[Page 8348]]

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 section 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 Mecklenburg County's performance specifications and 
requirements for this project.
    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 Mecklenburg 
County Land Use and Environmental Services Agency, 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 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 December 22, 2009, 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 information and supporting documentation provided by 
Mecklenburg 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 product 
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 this project, and that this manufactured 
good was not available from a producer in the United States, 
Mecklenburg County Land Use and Environmental Services Agency, 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 Mecklenburg County Land and 
Environmental Services Agency request of December 16, 2009. 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: January 28, 2010.
J. Scott Gordon,
Acting Regional Administrator, Region 4.
[FR Doc. 2010-3684 Filed 2-23-10; 8:45 am]
BILLING CODE 6560-50-P