[Federal Register: April 30, 2009 (Volume 74, Number 82)]
[Notices]
[Page 19954-19956]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap09-46]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8899-1]
American Recovery and Reinvestment Act of 2009 (Recovery Act)
Addendum to Supplemental Funding for Brownfields Revolving Loan Fund
(RLF) Grantees
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA published a notice on April 10, 2009 regarding plans to
make available approximately $40 million in Recovery Act funding to
supplement Revolving Loan Fund capitalization grants previously awarded
competitively under section 104(k)(3) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). The
purpose of this notice is to notify eligible RLF grantees that
Supplemental Funding for Brownfields RLF grantees provided under the
April 10, 2009 notice will be subject to the Buy American provisions
for activities defined as infrastructure by the Agency.
DATES: This action is effective April 30, 2009.
FOR FURTHER INFORMATION CONTACT: Debi Morey, U.S. EPA, Office of Solid
Waste and Emergency Response, Office of Brownfields and Land
Revitalization, (202) 566-2735 or the appropriate Brownfields Regional
Contact.
SUPPLEMENTARY INFORMATION:
Background
On February 17, 2009, President Barack Obama signed the American
Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-05) (Recovery
Act). EPA received $100 million in Recovery Act appropriations for the
CERCLA 104(k) Brownfields Program of which 25% must be used at
brownfields sites contaminated with petroleum. The Agency has allocated
approximately $40 million of Recovery Act funds for supplemental
funding of current RLF grantees as authorized by CERCLA 104(k)(4).
Title XVI, section 1605 of the Recovery Act, (``Buy American'')
prohibits the use of Recovery Act funds for projects involving ``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'' unless certain
specified exceptions apply. OMB has issued regulations at Subpart B of
2 CFR Part 276 implementing the Recovery Act Buy American provision. It
is possible that a limited amount of RLF supplemental funding will be
used directly by non-federal governmental entity borrowers or
subgrantees for projects that have a principal purpose of installing
concrete or asphalt (or similar material) caps to remediate
contamination on brownfields on a public building or public work, as
defined at 2 CFR 176.140(a), or constructing alternative drinking water
systems as part of the remedy at a brownfields site. These caps
constitute an engineering control to enclose and protect contamination
from migration and the risk of exposure. Construction of alternate
drinking water systems by a non-federal governmental entity with RLF
supplemental funding would be a public work under 2 CFR 176.140(a). EPA
considers loans and subgrants that have a principal purpose of carrying
out of these types of activities to be infrastructure investments for
the purposes of the certification and reporting requirements of Title
XV, sections 1511 and 1512 of the Recovery Act and implementing
regulations at 2 CFR 176.50. If an RLF grantee is requesting
supplemental funding for a project which requires a Buy American Act
determination (i.e., a cap that will be directly incorporated into a
public building or public work) and the grantee intends to use other
than American steel, iron or manufactured goods, the grantee must
request an advance determination or provide the necessary information
in their request for RLF supplemental funding.
Please note that in accordance with 2 CFR 176.140(a), remediation
activities conducted with RLF supplemental funds by private sector
developers, non-profit organizations (except multi-State, regional or
interstate entities which have governmental functions) or other non-
governmental borrowers or subgrantees, and tribes are not public
buildings or public works for the purposes of the Buy American
provision of the Recovery Act as implemented at Subpart B of 2 CFR Part
176. EPA does not consider remediation activities conducted with RLF
supplemental funds by private sector developers, non-profit
organizations (except multi-State, regional or interstate entities
which
[[Page 19955]]
have governmental functions) or other non-governmental borrowers or
subgrantees to be infrastructure investments for the purposes of the
certification and reporting requirements.
Required Use of American Iron, Steel, and Manufactured Goods--Section
1605 of the American Recovery and Reinvestment Act of 2009
(a) Definitions. ``Manufactured good,'' ``public building and
public work,'' and ``steel,'' as used in this notice, are defined in
the 2 CFR 176.140.
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the Recovery Act 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 paragraphs (c)
and (d) of the award term and condition at 2 CFR 176.140 in the
request. If an applicant has not requested a determination regarding
the inapplicability of 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.
(c) Evaluation of project proposals.
If the Federal government determines that an exception based on
unreasonable cost of domestic iron, steel, and/or manufactured goods
applies, the Federal Government will evaluate a project requesting
exception to the requirements of section 1605 of the Recovery Act by
adding to the estimated total cost of the project 25 percent of the
project cost, if foreign iron, steel, or manufactured goods are used in
the project based on unreasonable cost of comparable manufactured
domestic iron, steel, and/or manufactured goods.
(d) Alternate project proposals.
(1) When a project proposal includes foreign iron, steel, and/or
manufactured goods not listed by the Federal Government at paragraph
(b)(2) of the award term and condition at 2 CFR 176.140, the applicant
also may submit an alternate proposal based on use of equivalent
domestic iron, steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with
paragraphs (c) and (d) of the award term and condition at 2 CFR 176.140
for the proposal that is based on the use of any foreign iron, steel,
and/or manufactured goods for which the Federal Government has not yet
determined an exception applies.
(3) If the Federal government determines that a particular
exception requested in accordance with paragraph (b) of the award term
and condition at 2 CFR 176.140 does not apply, the Federal Government
will evaluate only those proposals based on use of the equivalent
domestic iron, steel, and/or manufactured goods, and the applicant
shall be required to furnish such domestic items.
Notice of Required Use of American Iron, Steel, and Manufactured Goods
(Covered Under International Agreements)--Section 1605 of the American
Recovery and Reinvestment Act of 2009
(a) Definitions. ``Designated country iron, steel, and/or
manufactured goods,'' ``foreign iron, steel, and/or manufactured
good,'' ``manufactured good,'' ``public building and public work,'' and
``steel,'' as used in this provision, are defined in 2 CFR 176.160(a).
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the Recovery Act 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 paragraphs (c)
and (d) of the award term and condition at 2 CFR 176.160 in the
request. If an applicant has not requested a determination regarding
the inapplicability of 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.
(c) Evaluation of project proposals.
If the Federal government determines that an exception based on
unreasonable cost of domestic iron, steel, and/or manufactured goods
applies, the Federal Government will evaluate a project requesting
exception to the requirements of section 1605 of the Recovery Act by
adding to the estimated total cost of the project 25 percent of the
project cost if foreign iron, steel, or manufactured goods are used
based on unreasonable cost of comparable domestic iron, steel, or
manufactured goods.
(d) Alternate project proposals.
(1) When a project proposal includes foreign iron, steel, and/or
manufactured goods, other than designated country iron, steel, and/or
manufactured goods, that are not listed by the Federal Government in
this Buy American notice in the request for applications or proposals,
the applicant may submit an alternate proposal based on use of
equivalent domestic or designated country iron, steel, and/or
manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with
paragraphs (c) and (d) of the award term and condition at 2 CFR 176.160
for the proposal that is based on the use of any foreign iron, steel,
and/or manufactured goods for which the Federal Government has not yet
determined an exception applies.
(3) If the Federal government determines that a particular
exception requested in accordance with paragraph (b) of the award term
and condition at 2 CFR 176.160 does not apply, the Federal Government
will evaluate only those proposals based on use of the equivalent
domestic or designated country iron, steel, and/or manufactured goods,
and the applicant shall be required to furnish such domestic or
designated country items.
Statutory and Executive Order Reviews: Under Executive Order 12866
(58 FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and is therefore not subject to OMB review. Because
this grant action is not subject to notice and comment requirements
under the Administrative Procedures Act or any other statute, it is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or
Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA)
(Pub. L. 104-4). In addition, this action does not significantly or
uniquely affect small governments. Although this action does not
generally create new binding legal requirements, where it does, such
requirements do not substantially and directly affect Tribes under
Executive Order 13175 (63 FR 67249, November 9, 2000). Although this
grant action does not have significant Federalism implications under
Executive Order 13132 (64 FR 43255, August 10, 1999), EPA consulted
with states in the development of these grant guidelines. This action
is not subject to Executive Order 13211, ``Actions Concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001), because it is not a significant
regulatory action under Executive Order 12866. This action does not
involve technical standards; thus, the requirements of Section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This action does
[[Page 19956]]
not impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The
Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that
before certain actions may take effect, the agency promulgating the
action must submit a report, which includes a copy of the action, to
each House of the Congress and to the Comptroller General of the United
States. Since this grant action, when finalized, will contain legally
binding requirements, it is subject to the Congressional Review Act,
and EPA will submit its final action in its report to Congress under
the Act.
Dated: April 24, 2009.
Myra Blakely,
Acting Director, Office of Brownfields and Land Revitalization, Office
of Solid Waste and Emergency Response.
[FR Doc. E9-9964 Filed 4-29-09; 8:45 am]
BILLING CODE 6560-50-P