This section of the FEDERAL REGISTER

contains documents other than rules or

proposed rules that are applicable to the

public. Notices of hearings and investigations,

committee meetings, agency decisions and

rulings, delegations of authority, filing of

petitions and applications and agency

statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

48901 

Vol. 74, No. 185 

Friday, September 25, 2009 

DEPARTMENT OF AGRICULTURE 

Rural Utilities Service 

Notice of Buy American Exception 

Under the American Recovery and 

Reinvestment Act of 2009 

AGENCY: Rural Utilities Service, U.S. 

Department of Agriculture. 

ACTION: Notice. 

SUMMARY: The Rural Utilities Service 

(RUS) hereby gives notice of a 

nationwide exception to the Buy 

American requirements of Section 1605 

of the American Recovery and 

Reinvestment Act of 2009 (‘‘ARRA’’) 

under the authority of Section 

1605(b)(1) (public interest waiver) for de 

minimis incidental components of 

eligible water infrastructure projects 

using assistance provided under ARRA. 

This action permits the use of nondomestic iron, steel and manufactured 

goods when they occur in de minimis 

incidental components that may 

otherwise be prohibited under Section 

1605(a). As used in this Notice, ‘‘de 

minimis incidental components’’ means 

those components otherwise prohibited 

under Section 1605(a) that cumulatively 

comprise no more than a total of 5 

percent of the total cost of the materials 

used in a project funded in whole or in 

part with ARRA assistance. 

DATES: Effective Date: September 25, 

2009. 

ADDRESSES: Send any correspondence 

regarding this notice to Jacqueline M. 

Ponti-Lazaruk, Assistant Administrator, 

Water and Environmental Programs, 

Rural Utilities Service, U.S. Department 

of Agriculture, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

1548. 

FOR FURTHER INFORMATION CONTACT: 

Benjamin Shuman, Senior 

Environmental Engineer, Engineering 

and Environmental Staff, (202) 720– 

1784, Rural Utilities Service, U.S. 

Department of Agriculture, 1400 

Independence Avenue, SW., 

Washington, DC 20250–1571. 

SUPPLEMENTARY INFORMATION: In 

accordance with section 1605(c) of 

ARRA and Section 176.80 of the rules 

of the Office of Management and Budget 

(OMB) (2 CFR 176.80), RUS hereby 

provides notice that it is granting a 

nationwide exception to Section 1605 of 

the Recovery Act with respect to de 

minimis incidental components of 

eligible water infrastructure projects 

funded under the ARRA. The basis for 

this waiver is a public interest 

determination pursuant to Section 

1605(b)(1) of ARRA. 

I. Background 

The American Recovery and 

Reinvestment Act of 2009 made 

available $3,672,475,732 to RUS to 

make direct loans and grants for rural 

water, wastewater and waste disposal 

programs authorized by Sections 306 

and 310B and described in Section 

381E(d)(2) of the Consolidated Farm and 

Rural Development Act. Section 1605(a) 

of ARRA, the ‘‘Buy American’’ 

provision, states that ‘‘none of the funds 

appropriated or otherwise made 

available by this Act may be used for a 

project 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.’’ 

Section 1605(b) of ARRA authorizes 

the head of a Federal department or 

agency to waive the Buy American 

provision by one of the following three 

determinations: (1) Applying the Buy 

American provision would be 

inconsistent with the public interest; (2) 

the iron, steel, and relevant 

manufactured goods are not produced in 

the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality; or (3) the inclusion 

of the iron, steel, and manufactured 

goods produced in the United States 

will increase the cost of the project by 

more than 25 percent. If a determination 

is made to waive the requirements of 

Section 1605(a) based on a finding 

under Section 1605(b), then Section 

1605(c) requires the head of the 

department or agency to publish a 

detailed justification in the Federal 

Register as to why the provision is being 

waived. Finally, Section 1605(d) 

requires that the Buy American 

provision must be applied in a manner 

consistent with the United States’ 

obligations under international 

agreements. 

II. Public Interest Finding 

RUS has determined that, as applied 

to water and wastewater projects, the 

application of the Buy American 

restrictions to de minimis situations 

would be inconsistent with the public 

interest. 

Water and wastewater infrastructure 

projects typically contain a relatively 

small number of high-cost components 

incorporated into the project that are 

iron, steel and manufactured goods, 

such as pipe, tanks, pumps, motors, 

instrumentation and control equipment, 

treatment process equipment, and 

relevant materials to build structures for 

facilities such as treatment plants, 

pumping stations and pipe networks. In 

bid solicitations for water and 

wastewater projects, these high-cost 

components are generally described in 

detail in project-specific technical 

specifications, and utility owners and 

their contractors are generally familiar 

with the conditions of availability, the 

potential alternatives for each detailed 

specification, the approximate cost and, 

most relevant to this Notice, the country 

of manufacture of such components. 

Every water or wastewater 

infrastructure project also involves the 

use of thousands of miscellaneous, 

generally low-cost components that are 

essential for, but incidental to, 

construction of the project. During 

construction, these components (for 

example, nuts, bolts, fasteners, tubing, 

and gaskets), are incorporated into the 

physical structure of the project. For 

many of these incidental components, 

the country of manufacture and the 

availability of alternatives are not 

always readily or reasonably 

identifiable. More importantly, the 

miscellaneous character of these 

components, together with their low 

cost (both individually and when 

procured in bulk), characterize them as 

incidental to the facility or project. 

RUS finds that it would be 

inconsistent with the public interest to 

apply the Buy American requirement to 

incidental components when they in 

total comprise no more than 5 percent 

of the total cost of the materials used in 

and incorporated into a project. While 

individual components may have the 


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48902 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Notices 

same function (e.g., brackets), the 

specific manufacturer and configuration 

may vary from project to project, making 

the analysis and consideration of 

individual waiver requests for them, 

including determining whether or not 

U.S. made products exist, is expected to 

be time-consuming and labor intensive 

far out of proportion to the percentage 

of total project materials they comprise. 

Further, since the specific use of these 

low-cost components can be expected to 

be widely varied, formulating 

categorical waivers for specific types of 

components would be impractical. 

Because the situations described above, 

i.e. a high number of low-cost, 

miscellaneous components, can be 

effectively addressed by a 

comprehensive application of a 

nationwide de minimis waiver, RUS 

finds that it would be inconsistent with 

the public interest to apply the Buy 

American requirement to incidental 

components when they in total 

comprise no more that 5 percent of the 

total cost of the materials used in and 

incorporated into a project. 

In some instances, the Rural Utilities 

Service and the Environmental 

Protection Agency’s (EPA) Clean 

Drinking Water State Revolving Funds 

(SRF) program jointly fund water 

infrastructure projects. The EPA 

undertook inquiries to identify the 

approximate scope of incidental 

components within its SRF water 

infrastructure projects. The responses 

were consistent and indicated that the 

percentage of total costs for drinking 

water or wastewater treatment 

infrastructure projects represented by 

these incidental components is 

generally not in excess of 5 percent of 

the total costs of the materials used in 

and incorporated into a project. 

As a result of its research and 

analysis, EPA published two Federal 

Register notices of de minimis waivers. 

The first was published on Tuesday, 

June 2, 2009 (FR Vol. 74, No. 104, pp. 

26398 and 26399), and set forth the 

EPA’s determination with respect to a 

public interest finding on de minimis. 

The second notice, which revised the 

first, was published on Monday, August 

10, 2009 (FR Vol. 74, No. 152, pp. 39959 

and 39960). By these waivers the EPA 

has also determined that imposing 

ARRA’s Buy American requirements for 

the category of de minimis incidental 

components is not in the public interest. 

While the authorizing statutes and 

funding sources for the EPA and RUS 

borrowers are different, the types of 

projects that EPA finances under its SRF 

program are substantially similar in 

size, scope and purpose as those funded 

by RUS and, as stated above, some 

projects are jointly funded by RUS and 

EPA. The Rural Utilities Service has 

decades of experience in financing 

water and wastewater projects in rural 

America and shares the EPA’s rationale 

with respect to incidental components 

used in similar projects. With respect to 

jointly-funded projects, it is desirable to 

avoid disparate treatment of 

components based on whether or not 

ARRA funds come from EPA or RUS. 

Section 1605 should be administered 

consistently, both within a particular 

Federal agency and, to the extent 

possible, between agencies. Promoting 

consistent treatment and avoiding 

unnecessary delays in committing 

ARRA financing to projects around the 

country are crucial to the success of 

ARRA. Requiring individual waivers for 

incidental components would be time 

prohibitive and overly burdensome for 

applicants and RUS. The purpose of 

ARRA is to stimulate economic recovery 

by funding current infrastructure 

construction, not to delay projects that 

are ‘‘shovel ready.’’ Therefore, a de 

minimis waiver of incidental 

components totaling no more that 5 

percent of total project costs is in the 

public interest. 

III. Waiver 

Based on the public interest finding 

discussed above and pursuant to 

Section 1605(c), USDA hereby issues a 

national waiver from the requirements 

of ARRA Section 1605 for any 

incidental components of the type 

described above that comprise in total a 

de minimis amount of the project, 

specifically, for any such incidental 

components up to a limit of no more 

than 5 percent of the total cost of the 

materials used in and incorporated into 

a project. 

Assistance recipients who elect to use 

this waiver shall, in consultation with 

their contractors, determine the items to 

be covered by this waiver, retain 

relevant documentation as to those 

items in their project files, and be able 

to summarize in reports to RUS, if so 

requested, the types and/or categories of 

items to which this waiver is applied, 

the total cost of incidental components 

covered by the waiver for each type or 

category, and the calculations by which 

they determined the total cost of 

materials used in and incorporated into 

the project. 

In using this waiver, assistance 

recipients must consider that there may 

be circumstances where there are 

multiple types of low-cost components 

which, when combined with the 

incidental components described above, 

may total more than 5 percent. 

Assistance recipients in such cases 

will have to choose which of these 

incidental components will be covered 

by the waiver and which will not. 

Components that the recipient is unable 

to include within the 5 percent limit of 

this waiver must comply with the 

requirements of section 1605 of ARRA 

by appropriate means other than 

reliance on this waiver. 

Further, as described above, in some 

cases RUS and EPA jointly fund 

projects. Both RUS and EPA have issued 

de minimis waivers that have a cap of 

a total of 5 percent of project costs. In 

the case of a jointly funded project, 

these waivers shall not be combined to 

create a waiver of greater than 5 percent 

of total project costs. 

This supplementary information 

constitutes the ‘‘detailed written 

justification’’ required by Section 

1605(c) of ARRA and Section 176.80 of 

the Office of Management and Budget’s 

rules for waivers of the Buy American 

provisions. 

Authority: Public Law 111–5, Section 

1605. 

Dated: September 21, 2009. 

Thomas J. Vilsack, 

Secretary. 

[FR Doc. E9–23202 Filed 9–24–09; 8:45 am] 

BILLING CODE 3410–15–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

Prop Canyon Watershed, Site 1 (Big 

Draw Dam), Cibola County, NM 

AGENCY: Natural Resources 

Conservation Service, USDA. 

ACTION: Notice of a Finding of No 

Significant Impact. 

SUMMARY: Pursuant to Section 102 (2) 

(C) of the National Environmental 

Policy Act of 1969, the Council on 

Environmental Quality Regulations (40 

CFR part 1500); and the Natural 

Resources Conservation Service 

Regulations (7 CFR part 650); the 

Natural Resources Conservation Service, 

U. S. Department of Agriculture, gives 

notice that an environmental impact 

statement is not being prepared for the 

Prop Canyon Watershed, Site 1, Grant 

County, New Mexico. 

FOR FURTHER INFORMATION CONTACT: 

Roger Ford, State Conservation 

Engineer, Natural Resources 

Conservation Service, 6200 Jefferson 

Street, NE., Albuquerque, New Mexico 

87109, Telephone 505–761–4430, 

E-mail roger.ford@nm.usda.gov. 


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