American Recovery and Reinvestment Act of 2009 Business and Industry Guaranteed Loan Program, 36649-36654 [E9-17600]

Agencies

• DEPARTMENT OF AGRICULTURE
• Rural Business-Cooperative Service

[Federal Register Volume 74, Number 141 (Friday, July 24, 2009)]
[Notices]
[Pages 36649-36654]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17600]


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DEPARTMENT OF AGRICULTURE

Rural Business-Cooperative Service


American Recovery and Reinvestment Act of 2009 Business and 
Industry Guaranteed Loan Program

AGENCY: Rural Business-Cooperative Service, USDA.

ACTION: Notice.

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SUMMARY: The Rural Development Business and Cooperative Programs are 
administered through USDA (``the Agency''). This Notice announces the 
availability of stimulus assistance provided pursuant to Title 1 of 
Division A of the American Recovery and Reinvestment Act of 2009 
(Recovery Act) (Pub. L. 111-5).

DATES: Applications will be accepted until September 15, 2010, or until 
funds are expended. Program funding expires September 30, 2010.
    The comment period for information collection under the Paperwork 
Reduction Act of 1995 continues through September 22, 2009. Comments on 
the paperwork burden must be received by this date to be assured of 
consideration.

ADDRESSES: If you wish to apply for assistance or are in need of 
further information, contact the USDA Rural Development State Office in 
the State where your project is located. A list of USDA Rural 
Development State Offices is available at https://www.rurdev.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Bonnet, Rural Development, 
Business Programs, U.S. Department of Agriculture, 1400 Independence 
Avenue, SW., Stop 3221, Washington, DC 20250-3221; e-mail:

[[Page 36650]]

Rick.Bonnet@wdc.usda.gov; telephone (202) 720-1804.

SUPPLEMENTARY INFORMATION:

Administrative Procedure Act Statement

    This Notice is being issued without advance rulemaking or public 
comment. The Administrative Procedure Act (``APA'', 5 U.S.C. 553), has 
several exemptions to rulemaking requirements. Among them is an 
exemption for matters relating to Federal benefits, but under the 
provisions of the ``Statement of Policy of the Secretary of Agriculture 
effective July 24, 1971,'' issued by Secretary Hardin in 1971 (36 FR 
13804 (the ``Hardin Memorandum''), the Department will normally engage 
in rulemaking related to Federal benefits despite that exemption. 
However, the Hardin Memorandum does not waive certain other APA-
contained exemptions, in particular the ``good cause'' exemption found 
at 5 U.S.C. 553(b)(3)(B), which allows effective government action 
without rulemaking procedures where withholding the action would be 
``impracticable, unnecessary, or contrary to the public interest.'' The 
Hardin memorandum specifically provides for the use of the ``good 
cause'' exemption, albeit sparingly, when a substantial basis for so 
doing exists, and where, as will be described more fully below, that 
substantial basis is explained.
    USDA has determined, consistent with the APA and the Hardin 
Memorandum, that making Recovery Act funds available under the Business 
and Industry (B&I) Guaranteed Loan Program as soon as possible is in 
the public interest. Withholding this Notice to provide for public 
notice and comment would unduly delay the provision of benefits 
associated with the provision of the Recovery Act funds and be contrary 
to the public interest. Should the actual practice of the program 
produce reasons for program modifications those modifications can be 
brought to the attention of the Department and changes made in the 
future rulemaking process.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, Rural 
Development is requesting comments from all interested individuals and 
organizations on a new information collection for the provision of 
Recovery Act funds under the B&I Guaranteed Loan program. The 
information collection activities associated with this Notice have been 
submitted under the emergency processing procedures of the Paperwork 
Reduction Act (PRA) of 1995. As discussed above in the APA section, 
USDA believes that there is good cause to forgo any delay associated 
with the opportunity for advance public comment. However, in accordance 
with the requirements of the PRA, USDA Rural Development will 
ultimately seek standard OMB approval of the reporting requirements 
contained in this Notice and hereby opens a 60-day public comment 
period regarding the information collection activities contained in 
this Notice.
    Copies of all forms, regulations, and instructions referenced in 
this NOFA may be obtained from Rural Development. Data furnished by the 
applicants will be used to determine eligibility for program benefits. 
Furnishing the data is voluntary; however, the failure to provide data 
could result in program benefits being withheld or denied.
    Title: Business and Industry Guaranteed Loan Program American 
Recovery and Reinvestment Act of 2009.
    OMB Control Number: New.
    Type of Request: New collection.
    Abstract: Under this Notice, the Agency is making available 
Recovery Act funds for the B&I Guaranteed Loan Program. In order to 
appropriately use these funds for guaranteeing B&I loans, it is 
necessary to obtain information on rural areas experiencing persistent 
poverty, outmigration, high unemployment, and under-served and under-
represented groups and areas, which are among those areas hardest hit 
by the current economic crisis.
    The majority of proposed information collection activities 
associated with this Notice will be essentially the same as the 
currently approved Business and Industry (B&I) Guaranteed Loan Program 
collection, OMB Number: 0570-0017, with the exception of certain 
requirements associated with the definition of quality of jobs, such 
as:
     To document that the business qualifies under the Work 
Opportunity Tax Credit Program authorized by the Small Business and 
Work Opportunity Tax Act of 2007, lenders must obtain from the borrower 
a copy of the certification from the appropriate State workforce 
agency.
     To document that the business offers a healthcare benefits 
package to all employees, with at least 50 percent of the premium paid 
by the employer, the lender must obtain from the borrower a copy of 
Internal Revenue Service, Department of Labor Form 5500 (Annual Return/
Report of Employee Benefit Plan) and provide a written certification 
that the employer pays at least 50 percent of the premiums. The 
collection of information is vital to the Agency to make wise decisions 
regarding the eligibility of applicants for B&I Guaranteed Loans that 
are guaranteed using Recovery Act funds in order to ensure compliance 
with the provisions of this Notice. In summary, this collection of 
information is necessary in order to appropriately use Recovery Act 
funds for guaranteeing B&I loans. Further, other than the information 
collections associated with the general requirements of the Recovery 
Act, the vast majority of these collections are currently being made 
with respect to the current B&I program. The focus of the new 
collections concerns requirements of the definition of quality of jobs.
    The following estimates are for $1.7 billion of Recovery Act funds 
available to the B&I Guaranteed Loan Program.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 1.6 hours per response.
    Respondents: Rural businesses.
    Estimated Number of Respondents: 700.
    Estimated Number of Responses per Respondent: 22.4.
    Estimated Number of Responses: 15,703.
    Estimated Total Annual Burden (hours) on Respondents: 25,409.
    Copies of this information collection can be obtained from Cheryl 
Thompson, Regulations and Paperwork Management Branch, at (202) 692-
0043.

Comments

    Comments are invited regarding: (a) Whether the proposed collection 
of information is necessary for the proper performance of the functions 
of Rural Development, including whether the information will have 
practical utility; (b) the accuracy of Rural Development's estimate of 
the burden of the proposed collection of information including the 
validity of the methodology and assumptions used; (c) ways to enhance 
the quality, utility and clarity of the information to be collected; 
and (d) ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology. Comments may be 
sent to Cheryl Thompson, Regulations and Management Branch, Support 
Services Division, U.S. Department of Agriculture, Rural Development, 
STOP 0742, 1400 Independence Ave. SW., Washington, DC 20250. All 
responses to this Notice will be summarized and included in the request 
for OMB

[[Page 36651]]

approval. All comments will also be a matter of public record.

Overview Information

    Federal Agency Name. Rural Development, Rural Business-Cooperative 
Service.
    Funding Opportunity Title. Business and Industry Guaranteed Loan 
Program.
    Announcement Type. Initial announcement.
    Catalog of Federal Domestic Assistance (CFDA) Number. The CFDA 
number assigned to the American Recovery and Reinvestment Act funds for 
the Business and Industry Guaranteed Loan program is 10.782.

DATES. Applications will be accepted until September 15, 2010, or until 
funds are expended. Program funding expires September 30, 2010.

ADDRESSES. If you wish to apply for assistance or are in need of 
further information, contact the USDA Rural Development State office in 
the State where your project is located. A list of USDA Rural 
Development state offices is available at: https://www.rurdev.usda.gov.

I. Funding Opportunity Description

    A. Purpose. This Notice is issued pursuant to the recently passed 
American Recovery and Reinvestment Act of 2009. The Recovery Act 
provides for additional funds to the Agency for use under the B&I 
Guaranteed Loan Program. With this Notice, the Agency is announcing the 
availability of funding through the B&I Guaranteed Loan program for 
eligible projects.
    The provisions in this Notice apply only to the award of Recovery 
Act funds made available to the B&I Guaranteed Loan Program pursuant to 
this Notice. These provisions do not apply to loans funded under the 
Omnibus Appropriations Act of 2009 or the Consolidated Security, 
Disaster Assistance, and Continuing Appropriations Act of 2009.
    B. Statutory Authority. This program is authorized under the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).
    C. Definitions. The following definitions are applicable to this 
Notice.
    High unemployment. Any area that has an unemployment rate that is 
125 percent of the nationwide rate or greater.
    Outmigration. Any area of long-term population decline and job 
deterioration based on reliable statistical data. Population loss, 
particularly that which results in loss of jobs, can result from a 
lower rate of births than deaths and prolonged movement from a place of 
origin to another location. Outmigration of jobs is the result of 
traditional jobs not being replaced by new types of jobs. Communities 
that experience seasonal fluctuations due to tourism will not be 
considered under this definition. The Agency will use data from the 
1980, 1990, and 2000 decennial census to determine if outmigration 
occurred.
    Persistent poverty. Any county that has had 20 percent or more of 
its population living in poverty over the past 30 years, as measured by 
the 1980, 1990, and 2000 decennial census.
    Quality jobs. This relates to the quality of the jobs provided by 
the borrower. For the purposes of this Notice, a quality job is one 
which:
    (i) Pays wages that average at least 125 percent of the Federal 
minimum wage; or
    (ii) Qualifies under the Work Opportunity Tax Credit Program 
authorized by the Small Business and Work Opportunity Tax Act of 2007; 
or
    (iii) Offers healthcare package to all employees, with at least 50 
percent of the premium paid by the employer for employees.
    Under-served groups and under-represented areas. Any geographic 
area and population group that has not historically received the 
benefits of the B&I program as compared to other areas and groups.
    In implementing this definition, State Office Program officials 
will:
     Analyze their State loan participation data;
     Determine group or groups who typically have not 
participated in Agency Programs in the areas that are under-served and 
under-represented (no loans in areas that have need for the benefits of 
the loans); and
     Determine where projects have been funded and give 
priority to projects that could be located in areas of greatest need 
based on the data analysis (under-served groups and under-represented 
areas).
    Under-served groups and under-represented areas generally concern a 
``protected class.'' Protected class, a term used in Civil Rights anti-
discrimination law, describes groups of people who historically have 
been treated differently because of their race, color, gender or 
national origin and are now protected from discrimination and 
harassment.
    Civil Rights laws cover individuals' Ethnicity--Hispanic or Latino 
or non-Hispanic; and Race--American Indians and Alaska Natives, Asian, 
Black or African American, Native Hawaiians and Pacific Islanders and 
White.
    Racial and ethnic disparities exist in providing Federal assistance 
through administration of program funds. Statistics show people of the 
``protected class'' have not participated to the level of non-minority 
participants. To become more transparent and to be proactive in the 
elimination of disparity, we embrace enhanced program outreach, 
education, and technical assistance to under-served areas and groups to 
eliminate disparities. State Program Officials will develop and 
implement a meaningful outreach plan to assist in eliminating disparity 
in the delivery of programs to the under-served and under-represented 
area.
    D. Implementation of Recovery Act provisions. Consistent with the 
purposes of the Recovery Act, the Agency has determined that the most 
effective use of these program funds is to target them to encourage the 
creation or retention of quality jobs through the extension of business 
credit in those rural areas of greatest need, most difficult to reach, 
and among those areas hardest hit by the current economic crisis.
    In determining the type of incentives that participating lenders 
would need to generate quality loans in these critical rural areas, the 
Agency considered adjustments to several features of the B&I program 
over which we have control, including the percentage of guarantee, 
annual renewal fee, and guarantee fee; without compromising Agency 
underwriting standards.
    As a result, the Agency decided to provide for up to 90 percent 
guarantees to all Recovery Act funded loans that score at least 55 
priority points under the Agency priority scoring criteria in 7 CFR 
4279.155. In addition, the Agency decided to reduce the guarantee fee 
to 1 percent and eliminate the annual renewal fee for all B&I Recovery 
Act funded loans.
    The Agency is not proposing changes of the requirements currently 
reflected in its B&I program regulations, regarding the circumstances 
under which it will offer a 90 percent guarantee. Rather, it is 
utilizing certain existing program features to encourage economic 
stimulus in those rural areas experiencing persistent poverty, 
outmigration, high unemployment, and under-served and under-represented 
groups and areas, which are among those areas hardest hit by the 
current economic crisis. In determining whether a Recovery Act loan 
applicant will be eligible for up to a 90 percent guarantee, it will be 
evaluated based on the current B&I regulations at Sec.  4279.155, 
consistent with the guidance provided in OMB Circular A-129.

[[Page 36652]]

II. Funding Information

    A. Available funds. The Recovery Act provides $126,100,000 in 
budgetary authority for this program through September 30, 2010, to 
support loan guarantees based on credit subsidy scoring that is yet to 
be determined. The available program level under this Notice is $1.7 
billion that shall be available to support loan guarantees until 
September 30, 2010.
    B. Funding limitations. The Agency will distribute Recovery Act 
funds on a first-come-first-served basis. Ten percent of Recovery Act 
funds will be allocated for businesses located in persistent poverty 
counties, as provided for in the Recovery Act.

III. Program Provisions Specific to Guaranteed Loans

Seeking Recovery Act Funds

    This section of the Notice identifies provisions specific to 
guaranteed loans applications seeking Recovery Act funds. Unless 
otherwise indicated, these provisions are in addition to those in 7 CFR 
part 4279, subparts A and B.
    A. Scoring applications. When awarding administrator points under 7 
CFR 4279.155(b)(6), State Directors and the Administrator will award 
their points to an application only if the proposed project will 
provide quality jobs and meets at least one of the demographic criteria 
(outmigration, high unemployment, under-served/under-represented areas 
and groups, and persistent poverty counties).
    B. Guarantee fee. Notwithstanding the provisions of 7 CFR 
4279.107(a), the guarantee fee for Recovery Act funded guaranteed loans 
shall be one (1) percent.
    C. Annual renewal fee. The annual renewal fee specified in 7 CFR 
4279.107(b) does not apply to Recovery Act funded guaranteed loans.
    D. Ineligible purposes. Notwithstanding the provisions of 7 CFR 
4279.113, the following purposes are ineligible for Recovery Act funded 
guaranteed loans:
    (1) Zoos;
    (2) Aquariums;
    (3) Convenience stores, unless the store provides quality jobs and 
sells or will sell E85 fuel upon completion of the project;
    (4) Pools;
    (5) Water parks;
    (6) Hotels/motels and other facilities that have pools or water 
parks;
    (7) Golf courses;
    (8) Casinos or other gambling establishments; and
    (9) Museums.
    E. Percent guarantee. Notwithstanding the criteria specified in 7 
CFR 4279.119(b), applications that score at least 55 points using the 
B&I scoring criteria in 7 CFR 4279.155 are eligible for up to a 90-
percent guarantee as provided in 7 CFR 4279.119(b).

IV. Nondiscrimination Statement

    USDA prohibits discrimination in all its programs and activities on 
the basis of race, color, national origin, age, disability and, where 
applicable, sex, marital status, familial status, parental status, 
religion, sexual orientation, genetic information, political beliefs, 
reprisal, or because all or part of an individual's income is derived 
from any public assistance program. (Not all prohibited bases apply to 
all programs.) Persons with disabilities who require alternative means 
for communication of program information (Braille, large print, 
audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 
(voice and TTY). To file a complaint of discrimination, write to USDA, 
Director, Office of Adjudication and Compliance, 1400 Independence 
Avenue, SW., Washington, DC 20250-9410, or call (866) 632-9992 (voice), 
or (202) 401-0216 (TDD).

V. Civil Rights Compliance Requirements

    All awards are subject to the equal opportunity and 
nondiscriminatory requirements in accordance with the Equal Credit 
Opportunity Act, 7 CFR 15d, conducted programs by USDA and RD 
Instructions 7 CFR part 1901-E.

VI. Wage-Rate Requirements

    All laborers and mechanics employed by contractors and 
subcontractors on projects funded directly by or assisted in whole or 
in part by and through the Federal Government pursuant to the Recovery 
Act shall be paid wages at rates not less than those prevailing on 
projects of a character similar in the locality as determined by the 
Secretary of Labor in accordance with subchapter IV of chapter 31 of 40 
U.S.C. In this regard, the award will contain the following provision:

Wage Rate Requirements Under Section 1606 of the American Recovery and 
Reinvestment Act, 2009

    (a) Section 1606 of the Recovery Act requires that all laborers and 
mechanics employed by contractors and subcontractors on projects funded 
directly by or assisted in whole or in part by and through the Federal 
Government pursuant to the Recovery Act shall be paid wages at rates 
not less than those prevailing on projects of a character similar in 
the locality as determined by the Secretary of Labor in accordance with 
subchapter IV of chapter 31 of 40 U.S.C.
    Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 
U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR 
parts 1, 3, and 5 to implement the Davis-Bacon and related Acts. 
Regulations in 29 CFR 5.5 instruct agencies concerning application of 
the standard Davis-Bacon contract clauses set forth in that section. 
Federal agencies providing grants, cooperative agreements, and loans 
under the Recovery Act shall ensure that the standard Davis-Bacon 
contract clauses found in 29 CFR 5.5(a) are incorporated in any 
resultant covered contracts that are in excess of $2,000 for 
construction, alteration and/or repair (including painting and 
decorating). Projects exceeding $100,000 must also incorporate 
requirements of 29 CFR 5.5(b).
    (b) For additional guidance on the wage rate requirements of 
section 1606, contact your awarding agency. Recipients of grants, 
cooperative agreements and loans should direct their initial inquiries 
concerning the application of Davis-Bacon requirements to a particular 
federally assisted project to the Federal agency funding the project. 
The Secretary of Labor retains final coverage authority under 
Reorganization Plan No. 14.

VII. National Environmental Policy Act of 1969

    Implementation of the Recovery Act will utilize existing 
environmental review compliance requirements in accordance with its 
statutory and regulatory obligations. The Agency's respective 
environmental policies and procedures are codified in 7 CFR part 1940, 
subpart G. All relevant environmental compliance requirements are 
integrated in the above regulations, including the National 
Environmental Policy Act, National Historic Preservation Act and 
Endangered Species Act compliance processes.
    All program applicants are required to integrate environmental 
factors, along with other technical and financial considerations, into 
early project planning and design. The environmental review process 
must be completed, including all public notice requirements prior to 
funding any proposals.

VIII. Accountability and Transparency and Responsibility for Informing 
Sub-Recipients

    Recipients and their sub-recipients must maintain current 
registrations in the Central Contractor Registration (https://www.ccr.gov) at all times for

[[Page 36653]]

which they have active Federal awards funded with Recovery Act funds.
    All awards will contain the following tracking and documenting 
requirements:

Recovery Act Transactions Listed in Schedule of Expenditures of Federal 
Awards and Recipient Responsibilities for Informing Sub-Recipients

    (a) To maximize the transparency and accountability of funds 
authorized under the Recovery Act as required by Congress and in 
accordance with 2 CFR 215, subpart 21 and OMB Circular A-102 Common 
Rules provisions, recipients agree to maintain records that identify 
adequately the source and application of Recovery Act funds.
    (b) For recipients covered by the Single Audit Act Amendments of 
1996 and OMB Circular A-133, ``Audits of States, Local Governments, and 
Non-Profit Organizations,'' recipients agree to separately identify the 
expenditures for Federal awards under the Recovery Act on the Schedule 
of Expenditures of Federal Awards (SEFA) and the Data Collection Form 
(SF-SAC) required by OMB Circular A-133. This shall be accomplished by 
identifying expenditures for Federal awards made under the Recovery Act 
separately on the SEFA, and as separate rows under Item 9 of part III 
on the SF-SAC by CFDA number, and inclusion of the prefix ``ARRA'' in 
identifying the name of the Federal program on the SEFA and as the 
first characters in Item 9d of part III on the SF-SAC.
    (c) Recipients agree to separately identify to each sub-recipient, 
and document at the time of sub-award and at the time of disbursement 
of funds, the Federal award number, CFDA number, and amount of Recovery 
Act funds. When a recipient awards Recovery Act funds for an existing 
program, the information furnished to sub-recipients shall distinguish 
the sub-awards of incremental Recovery Act funds from regular sub-
awards under the existing program.
    (d) Recipients agree to require their sub-recipients to include 
their SEFA information to specifically identify Recovery Act funding 
similar to the requirements for the recipient SEFA described above. 
This information is needed to allow the recipient to properly monitor 
sub-recipient expenditure of Recovery Act funds as well as oversight by 
the Federal awarding agencies, Offices of Inspector General and the 
Government Accountability Office.
Certifications Pursuant to Section 1511 of the Recovery Act
    With respect to these funds made available to State or local 
governments for infrastructure investments, the Governor, mayor, or 
other chief executive, as appropriate, shall certify that the 
infrastructure investment has received the full review and vetting 
required by law and that the chief executive accepts responsibility 
that the infrastructure investment is an appropriate use of taxpayer 
dollars. Such certification shall include a description of the 
investment, the estimated total cost, and the amount of these funds to 
be used, and shall be posted on https://www.recovery.gov. A State or 
local agency may not receive infrastructure investment funding from 
funds made available in the Recovery Act unless this certification is 
made and posted.

IX. Set Aside

    Ten (10) percent of funding shall be allocated to assist businesses 
in persistent poverty counties.

X. Whistleblower Protection

    Each recipient or sub-recipient awarded funds made available under 
the Recovery Act shall promptly refer to the USDA Office of Inspector 
General, any credible evidence that a principal, employee, agent, 
contractor, sub-recipient, subcontractor, or other person has submitted 
a false claim under the False Claims Act or has committed a criminal or 
civil violation of laws pertaining to fraud, conflict of interest, 
bribery, gratuity, or similar misconduct involving those funds.

Section 1553(a) of the Recovery Act Provides Protection for 
Whistleblowers

    Prohibition of Reprisals--An employee of any non-Federal employer 
receiving covered funds may not be discharged, demoted, or otherwise 
discriminated against as a reprisal for disclosing, including a 
disclosure made in the ordinary course of an employee's duties, to the 
Board, an inspector general, the Comptroller General, a member of 
Congress, a State or Federal regulatory or law enforcement agency, a 
person with supervisory authority over the employee (or such other 
person working for the employer who has the authority to investigate, 
discover, or terminate misconduct), a court or grand jury, the head of 
a Federal agency, or their representatives, information that the 
employee reasonably believes is evidence of--
    (1) Gross mismanagement of an agency contract or grant relating to 
covered funds;
    (2) A gross waste of covered funds;
    (3) A substantial and specific danger to public health or safety 
related to the implementation or use of covered funds;
    (4) An abuse of authority related to the implementation or use of 
covered funds; or
    (5) A violation of law, rule, or regulation related to an agency 
contract (including the competition for or negotiation of a contract) 
or grant, awarded or issued relating to covered funds.

XI. Buy American

    None of the funds made available by the Recovery 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 or unless USDA Rural Development waives the application of this 
provision. (Sec. 1605)
    (a) If the applicant's requested use of Recovery Act funds involves 
the construction, alteration, maintenance, or repair of a public 
building or public work, and does not involve iron, steel, and or 
manufactured goods covered under international agreements, the 
following is applicable:

Notice of Required Use of American, Iron, Steel, and Manufactured 
Goods--Section 1605 of the American Recovery and Reinvestment Act, 2009

    (1) Definitions. Manufactured good, public building and public 
work, and steel, as used in this Notice, are defined in 2 CFR 176.140.
    (2) Requests for determinations of inapplicability. A prospective 
applicant requesting a determination regarding the inapplicability of 
section 1605 of the American Recovery and Reinvestment Act of 2009 
(Pub. L. 111-5) should submit the request to the award official in time 
to allow a determination before submission of applications or 
proposals. The prospective applicant shall include the information and 
applicable supporting data required by 2 CFR 176.140(c) and (d) in the 
request. If an applicant has not requested a determination regarding 
the inapplicability of section 1605 of the Recovery Act before 
submitting its application or proposal, or has not received a response 
to a previous request, the applicant shall include the information and 
supporting data in the application or proposal.
    (3) Exceptions. Section 1605 of the Recovery Act may apply to 
project-specific exceptions. When one of the following exceptions 
applies, the loan approval official may allow the loan,

[[Page 36654]]

grant, or loan guarantee recipient to use foreign iron, steel, or 
manufactured goods in a given project. Project specific exceptions may 
not be used unless requested by the applicant, approved by the Agency, 
and published in the Federal Register as noted below.
    Justifications: Any exception must be based on one of the following 
three justifications:
     Non-availability. Iron, steel, or relevant manufactured 
goods are not produced or manufactured in sufficient and reasonably 
available commercial quantities of a satisfactory quality.
     Unreasonable cost. The cost of domestic iron, steel, or 
relevant manufactured goods will increase the cost of the overall 
project by more than 25%.
     Public interest. The application of these restrictions 
would be inconsistent with the public interest.
    (4) International Agreements. Section 1605(d) does not apply to 
implementation of the Buy American provisions in Recovery Act for USDA, 
Rural Development programs.

    Dated: July 17, 2009.
Judith A. Canales,
Administrator, Rural Business-Cooperative Service.
[FR Doc. E9-17600 Filed 7-23-09; 8:45 am]
BILLING CODE 3410-XY-P