[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Notices]
[Pages 19954-19956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9964]


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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