26398 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Notices 

encouraging potential assistance 

recipients to begin the planning and 

design phase of project construction, 

and in some cases, actually solicit bids 

on the plans and designs. Projects that 

have solicited bids are in most cases 

considered to be in a ready-to-proceed 

category as among projects listed on 

State IUPs. Under the exceptional 

emphasis on expeditious construction of 

ARRA’s SRF language quoted above, 

States will generally give the highest 

priority for ARRA SRF funding to 

eligible projects that clearly qualify to 

be in a ready-to-proceed category. This 

statutory language also confirms the 

appropriateness of proactive steps States 

had taken to encourage SRF projects’ 

readiness for expeditious construction. 

Moreover, the ARRA SRF language cited 

in EPA’s nationwide waiver for 

refinanced projects specified October 1, 

2008 as the opening of the window 

within which initiation of relevant 

action can properly be considered done 

‘‘in anticipation of ARRA’’ (74 FR 

15722). 

To be included under this waiver, 

potential assistance recipients must 

show a verifiable basis on which they 

believed it was reasonable and prudent 

to solicit bids for these projects prior to 

concluding an assistance agreement 

with the State SRF. Such verification 

will show some objective basis under 

which these actions were reasonably 

and prudently undertaken in specific 

anticipation of ARRA funding, or any 

other source of timely funding. Such 

action may include an affirmative 

communication from a funding source, 

such as a binding commitment, high 

placement on a priority list, or other 

indicative and verifiable 

communication from an SRF or other 

government funding source, or 

regarding any affirmative steps taken to 

secure private bond financing from an 

appropriate industry entity. Any such 

objective verification would show that 

bid solicitations were undertaken 

reasonably and prudently, in order to 

fulfill Congress’ intent in passing ARRA 

and in particular to create jobs and spur 

economic recovery ‘‘by commencing 

activities and expenditures as 

expeditiously as possible’’ (See ARRA 

Section 3(b)). 

The imposition of ARRA’s Buy 

American requirements on projects 

eligible for SRF assistance whose 

assistance applicants had solicited bids 

on or after October 1, 2008 and prior to 

February 17, 2009, the date when those 

requirements were imposed, would 

require the time-consuming rebidding of 

those projects and potentially a 

redesign. Specifically, those projects 

that can show a reasonable and prudent 

basis to solicit bids prior to the passage 

of the ARRA would be harmed by the 

imposition of these requirements post 

bid solicitation. This imposition would 

particularly conflict with the intentions 

and objectives of the bases on which 

those projects reasonably and prudently 

solicited bids for project construction 

prior to the passage of the ARRA: based 

on an affirmative communication by a 

State SRF program, or in order to meet 

requirements set forth or identified by a 

financing agency or source of funds in 

order to ensure receipt of financing for 

the project. This would clearly frustrate 

Congress’ expressed intent for 

expeditious construction of projects 

supported by the State Revolving Funds 

or that had otherwise made themselves 

ready to proceed, and may imperil 

portions of States’ ARRA funding if it 

renders them unable to meet ARRA’s 

stringent time requirements for the 

entirety of their SRF appropriations. 

These projects are most likely to 

proceed to construction in a relatively 

short period of time, thereby creating 

jobs and stimulating the economy. 

ARRA Section 1605(b)(1) authorized 

the Administrator to waive the 

requirements of Section 1605(a) in any 

case or category of cases in which she 

finds that applying subsection (a) would 

be inconsistent with the public interest. 

Therefore, for the foregoing reasons, 

applying Buy America requirements to 

projects that reasonably and prudently 

solicited bids prior to the passage of 

ARRA in specific anticipation of ARRA 

funding, or any other source of timely 

funding, would be inconsistent with the 

public interest. 

Authority: Public Law 111–5, section 1605. 

Dated: May 22, 2009. 

Michael Shapiro, 

Acting Assistant Administrator for Water. 

[FR Doc. E9–12793 Filed 6–1–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8911–8] 

Notice of Nationwide Waiver of Section 

1605 (Buy American Requirement) of 

American Recovery and Reinvestment 

Act of 2009 (ARRA) for de minimis 

Incidental Components of Projects 

Financed Through the Clean or 

Drinking Water State Revolving Funds 

Using Assistance Provided Under 

ARRA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: The EPA is hereby granting a 

nationwide waiver of the Buy American 

requirements of ARRA Section 1605 

under the authority of Section 

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

minimis incidental components of 

eligible water infrastructure projects 

funded by ARRA. This action permits 

the use of non-domestic iron, steel, and 

manufactured goods when they occur in 

de minimis incidental components of 

such projects funded by ARRA that may 

otherwise be prohibited under section 

1605(a). 

DATES: Effective Date: May 22, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Jordan Dorfman, Attorney-Advisor, 

Office of Wastewater Management, (202) 

564–0614, or Philip Metzger, AttorneyAdvisor, Office of Ground Water and 

Drinking Water, (202) 564–3776, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. 

SUPPLEMENTARY INFORMATION: In 

accordance with ARRA Section 1605(c), 

the EPA hereby provides notice that it 

is granting a nationwide waiver of the 

requirements of section 1605(a) of 

Public Law 111–5, Buy American 

requirements, allowing the use of nondomestic iron, steel, and manufactured 

goods when they occur in de minimis 

incidental components of eligible 

projects for which a Clean or Drinking 

Water State Revolving Fund (SRF) has 

concluded or will conclude an 

assistance agreement using ARRA 

funds, where such components 

comprise no more than 5 percent of the 

total cost of the materials used in and 

incorporated into a project. 

Among the General Provisions of the 

American Recovery and Reinvestment 

Act of 2009 (ARRA), Section 1605(a) 

requires that ‘‘all of the iron, steel, and 

manufactured goods used in’’ a public 

works project built with ARRA funds 

must be produced in the United States, 

unless the head of the respective 

Federal department or agency 

determines it necessary to waive this 

requirement based on findings set forth 

in Section 1605(b). In addition, 

expeditious construction of SRF projects 

is made a high priority by a provision 

in the ARRA Title VII appropriations 

heading for the SRFs, which states 

‘‘[t]hat the Administrator shall 

reallocate funds * * * where projects 

are not under contract or construction 

within 12 months of’’ ARRA enactment 

(February 17, 2010). The finding 

relevant to this waiver is that ‘‘applying 

[ARRA’s Buy American requirement] 

would be inconsistent with the public 

interest’’ (1605(b)(1)). 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Notices 26399 

In implementing ARRA section 1605, 

EPA must ensure that the section’s 

requirements are applied consistent 

with congressional intent in adopting 

this section and in the broader context 

of the purposes, objectives, and other 

provisions of ARRA applicable to 

projects funded under the Clean and 

Drinking Water State Revolving Funds 

(SRF), particularly considering the 

SRFs’ 12 month ‘‘contract or 

construction’’ requirement. 

Further, also in the context of ARRA’s 

SRF ‘‘contract or construction’’ 

deadline, Congress’ overarching 

directive to 

[t]he President and the heads of Federal 

departments and agencies [is that they] shall 

manage and expend the funds made available 

in this Act so as to achieve the purposes [of 

this Act], including commencing 

expenditures and activities as quickly as 

possible consistent with prudent 

management. [ARRA Section 3(b)] 

Water 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 such 

facilities as treatment plants, pumping 

stations, pipe networks, etc. In bid 

solicitations for a project, these highcost components are generally clearly 

described via project specific technical 

specifications. For these major 

components, utility owners and their 

contractors are generally familiar with 

the conditions of availability, the 

approximate cost, and the country of 

manufacture of available components. 

Every water infrastructure project also 

involves the use of literally thousands of 

miscellaneous, generally low-cost 

components that are essential for but 

incidental to the construction, and are 

incorporated into the physical structure 

of the project, such as nuts, bolts, other 

fasteners, tubing, gaskets, etc. These 

incidental components are subject to the 

Buy American requirement of ARRA 

Section 1605(a), as stated above. 

In contrast with the situation 

applicable to major components with 

regard to country of manufacture, 

availability, and procurement process, 

the situation applicable to these 

incidental components is one where the 

country of manufacture and the 

availability of alternatives are not 

readily or reasonably identifiable prior 

to procurement in the normal course of 

business. Particular under the time 

constraints outlined above, it would be 

laborious, likely unproductive as to 

feasible alternatives, and 

disproportionate to the costs and time 

involved for an owner or their 

contractor to pursue such inquiries. 

EPA undertook multiple inquiries to 

identify the approximate scope of these 

de minimis incidental components 

within water infrastructure projects. 

EPA consulted informally with many 

major associations representing 

equipment manufacturers and suppliers, 

construction contractors, consulting 

engineers, and water and wastewater 

utilities, and a contractor performed 

targeted interviews with several wellestablished water infrastructure 

contractors and firms who work in a 

variety of project sizes, and regional and 

demographic settings. The contractor 

asked the following questions: 

—What percentage of total project costs 

were consumables or incidental costs? 

—What percentage of materials costs 

were consumables or incidental costs? 

—Did these percentages vary by type of 

project (drinking water vs. 

wastewater; treatment plant vs. pipe)? 

The responses were consistent across 

the variety of settings and project types, 

and indicated that the percentage of 

total costs for drinking water or 

wastewater infrastructure projects 

comprised by these incidental 

components is generally not in excess of 

5 percent of the total cost of the 

materials used in and incorporated into 

a project. In drafting this waiver, EPA 

has considered the de minimis 

proportion of project costs generally 

represented by each individual type of 

these incidental components within the 

hundreds or thousands of types of such 

components comprising those 

percentages, the fact that these types of 

incidental components are obtained by 

contractors in many different ways from 

many different sources, and the 

disproportionate cost and delay that 

would be imposed on projects if EPA 

did not issue this waiver. 

Under such specific circumstances 

associated with these particular types of 

incidental components, EPA has found 

that it would be inconsistent with the 

public interest—and particularly with 

ARRA’s directives to ensure expeditious 

SRF construction consistent with 

prudent management, as cited above—to 

require that the national origins of these 

components be identified in compliance 

with Section 1605(a). Accordingly, EPA 

is hereby issuing a national waiver from 

the requirements of ARRA Section 

1605(a) for the incidental components 

described above as a de minimis factor 

in the project, where such components 

comprise no more than 5 percent of the 

total cost of the materials used in and 

incorporated into a project. 

Assistance recipients who wish to use 

this waiver should in consultation with 

their contractors determine the items to 

be covered by this waiver, must retain 

relevant documentation as to those 

items in their project files, and must 

summarize in reports to the State 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. 

Therefore, for the foregoing reasons, 

imposing ARRA’s Buy American 

requirements for the category of de 

minimis incidental components 

described herein is not in the public 

interest. This supplementary 

information constitutes the ‘‘detailed 

written justification’’ required by 

Section 1605(c) for waivers ‘‘based on a 

finding under subsection (b).’’ 

Authority: Pub. L. 111–5, section 1605. 

Dated: May 22, 2009. 

Michael H. Shapiro, 

Acting Assistant Administrator for Water. 

[FR Doc. E9–12792 Filed 6–1–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

Notice of Public Information 

Collection(s) Being Reviewed by the 

Federal Communications Commission 

for Extension Under Delegated 

Authority, Comments Requested 

May 26, 2009. 

SUMMARY: The Federal Communications 

Commission, as part of its continuing 

effort to reduce paperwork burden 

invites the general public and other 

Federal agencies to take this 

opportunity to comment on the 

following information collection(s), as 

required by the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501–3520. An 

agency may not conduct or sponsor a 

collection of information unless it 

displays a currently valid control 

number. No person shall be subject to 

any penalty for failing to comply with 

a collection of information subject to the 

Paperwork Reduction Act (PRA) that 

does not display a valid control number. 

Comments are requested concerning (a) 

whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimate; (c) ways to enhance