[Federal Register Volume 74, Number 126 (Thursday, July 2, 2009)]
[Notices]
[Pages 31732-31733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15688]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8925-6]


American Recovery and Reinvestment Act of 2009 (Recovery Act) 
Clarification of April 30, 2009 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 30, 2009 concerning the 
applicability of Title XVI, section 1605 of the Recovery Act (``Buy 
American''), to loans and subgrants that would be made with 
approximately $40 million in Recovery Act funding the Agency will use 
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 
April 30, 2009 notice stated that ``remediation activities conducted 
with RLF supplemental funds by private sector developers, non-profit 
organizations 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.'' This notice clarifies that statement. If 
a non-governmental or tribal borrower or subgrantee uses RLF 
supplemental funds to remediate a public building or public work as 
defined by the Office of Management and Budget (OMB) regulations, the 
Buy American provision of the Recovery Act will apply to that loan or 
subgrant.

DATES: This action is effective July 2, 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. 111-05) (Recovery Act). 
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 176 implementing the Recovery Act Buy American provision.
    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. As indicated in EPA's 
April 10, 2009 notice (74 FR 16386), 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). On 
April 30, 2009, EPA issued a notice (74 FR 19954) regarding the 
applicability of the Buy American provision of the Recovery Act to this 
supplemental funding. The April 30 notice stated that, ``It is possible 
that a limited amount of RLF supplemental funding will be used directly 
by non-federal governmental entity borrowers or subgrantees to install 
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 to construct alternative drinking water 
systems as part of the remedy at a brownfields site * * *. 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) * * *. 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 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.'' Upon further 
review, EPA has determined that when a non-governmental borrower or 
subgrantee

[[Page 31733]]

uses RLF supplemental funds for remediation activities at a public 
building or to carry out a public work, the Buy American provisions of 
the Recovery Act apply. For example, if a private sector developer were 
to use an RLF loan to install a cap at a public building, the Buy 
American provisions of the Recovery Act would apply. Similarly, if a 
non-profit RLF subgrantee were to construct an alternate drinking water 
system connected to a public system as part of a remedial action at a 
brownfield site, the Buy American provisions of the Recovery Act would 
apply to the loan or subgrant. There may be other situations in which 
the Buy American provisions apply to the use of RLF supplemental funds 
by non-governmental borrowers and subgrantees for remediation 
activities at public buildings or public works as well.
    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 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: June 23, 2009.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of 
Solid Waste and Emergency Response.
[FR Doc. E9-15688 Filed 7-1-09; 8:45 am]
BILLING CODE 6560-50-P