31410 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Notices 

1Recovery Act § 1605, 123 Stat. at 303; 2 C.F.R. 

§ 176.80. 

2Because the Buy American limitation applies 

only to public works and public buildings, 

completely private projects need not obtain a 

waiver to utilize iron, steel, and manufactured 

goods produced outside of the United States. Note, 

however, that public-private partnerships are 

considered public for purposes of the Buy 

American limitation. 

3See Recovery Act § 1605(b)(1), 123 Stat. at 303. 

4See Recovery Act § 6001(d)(1)-(2), 123 Stat. at 

513. 

DEPARTMENT OF COMMERCE 

National Telecommunications and 

Information Administration 

Broadband Technology Opportunities 

Program 

AGENCY: National Telecommunications 

and Information Administration, U.S. 

Department of Commerce. 

ACTION: Buy American Exception under 

the American Recovery and 

Reinvestment Act of 2009. 

SUMMARY: The National 

Telecommunications and Information 

Administration (NTIA) hereby provides 

notice that on June 19, 2009, the 

Secretary of Commerce granted a 

limited waiver of section 1605 of the 

American Recovery and Reinvestment 

Act of 2009 (Recovery Act), Pub. L. No. 

111–5, 123 Stat. 115, 303 (2009) with 

respect to certain broadband equipment 

that will be used in projects funded 

under the Broadband Technology 

Opportunities Program (BTOP). 

DATES: July 1, 2009. 

ADDRESSES: Broadband Technology 

Opportunities Program, Office of 

Telecommunications and Information 

Applications, National 

Telecommunications and Information 

Administration, U.S. Department of 

Commerce, Room 4812, 1401 

Constitution Avenue, NW, Washington, 

DC 20230. 

FOR FURTHER INFORMATION CONTACT: 

Broadband Technology Opportunities 

Program, telephone: (202) 482–5032. 

SUPPLEMENTARY INFORMATION: In 

accordance with section 1605(c) of the 

Recovery Act and section 176.80 of Title 

2 of the Code of Federal Regulations, 

NTIA hereby provides notice that on 

June 19, 2009, the Secretary of 

Commerce granted a limited waiver of 

section 1605 of the Recovery Act (Buy 

American provision) with respect to 

certain broadband equipment that will 

be used in projects funded under 

BTOP.1 The basis for this waiver is a 

public interest determination pursuant 

to section 1605(b)(1) of the Recovery 

Act. 

I. BACKGROUND 

The Recovery Act appropriates $4.7 

billion to NTIA to establish BTOP, 

through which NTIA will provide grants 

for broadband initiatives throughout the 

United States, including projects in 

unserved and underserved areas. 

Section 1605(a) of the Recovery Act, the 

Buy American provision, states that 

none of the funds appropriated by the 

Act, including the funds that have been 

dedicated to grants under BTOP, ‘‘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.’’2

Subsections 1605(b) and (c) of the 

Recovery Act authorize the head of a 

Federal department or agency to waive 

the Buy American provision by finding 

that: (1) applying the provision would 

be inconsistent with the public interest; 

(2) the relevant goods are not produced 

in the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality; or (3) the inclusion 

of the goods produced in the United 

States will increase the cost of the 

project by more than 25 percent. If the 

head of the Federal department or 

agency waives the Buy American 

provision, then the head of the 

department or agency is required to 

publish a detailed justification in the 

Federal Register. Finally, section 

1605(d) of the Recovery Act states that 

the Buy American provision must be 

applied in a manner consistent with the 

United States’ obligations under 

international agreements. 

II. PUBLIC INTEREST FINDING 

The Secretary of Commerce has 

determined that, as applied to certain 

broadband equipment used in a BTOP 

project, application of the Buy 

American provision would be 

inconsistent with the public interest.3 A 

modern broadband network is generally 

composed of the following components: 

broadband switching, routing, transport, 

access, customer premises equipment, 

end-user devices, and billing/operations 

systems. The Buy American provision 

would prohibit NTIA from awarding a 

BTOP grant to a public applicant unless 

that applicant could certify that each 

element of each broadband network 

component containing iron, steel, and 

manufactured goods are produced in the 

United States. As explained more fully 

below, it would be difficult, if not 

impossible, for a BTOP applicant to 

have certain knowledge of the 

manufacturing origins of each 

component of a broadband network and 

the requirement to do so would be so 

overwhelmingly burdensome as to deter 

participation in the program. Requiring 

a BTOP applicant to request a waiver on 

a case-by-case basis also would be such 

an administrative burden on the 

applicant as to discourage participation 

in the program and would increase the 

agency’s time and costs for processing 

BTOP applications for broadband 

infrastructure projects. Thus, 

implementing the BTOP without a 

limited programmatic waiver 

encompassing broadband network 

components would jeopardize the 

success of the program and undermine 

the broadband initiative. 

First, much of the finished products 

used to manage and operate broadband 

infrastructure and offer broadband 

service are manufactured outside of the 

United States. The manufacturing 

supply chain varies by product and 

changes constantly due to the influence 

of global supply and demand. The result 

is a very competitive and complex 

production landscape with components 

and end products being manufactured 

and assembled in a large number of 

countries. While, arguably, the Secretary 

of Commerce could have relied on the 

‘‘non-availability’’ exception for 

granting a waiver, the burden placed on 

the Department of Commerce in 

sourcing and evaluating the availability 

of each component of broadband 

equipment would be significant, and the 

task of sourcing and evaluating would 

be difficult to complete given the speed 

with which Congress has told NTIA to 

allocate the BTOP funds. In addition, 

requiring public entities to document 

the origin of broadband equipment and 

their components in order to determine 

whether they fit within the scope of the 

Buy American provision would severely 

complicate those applicants’ ability to 

apply for funds and would place an 

undue burden on State and local 

governments. Taken as a whole, these 

burdens would cause delays and would 

likely thwart the goal of Congress to 

‘‘establish and implement the [BTOP] 

grant program as expeditiously as 

practicable,’’ and the Recovery Act’s 

requirement that NTIA to obligate all 

funds under BTOP by September 30, 

2010.4

Second, a limited waiver will help 

facilitate the construction of modern 

broadband networks — an essential 

component of the Recovery Act. 

Applicants to BTOP must have the 

flexibility to incorporate the most 

technically-advanced components into 

their infrastructure, and a limited 

waiver gives them the ability to 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Notices 31411 

incorporate the latest technologies. 

Third, consistent with the Recovery Act, 

a limited waiver will help stimulate job 

growth for construction workers, 

technicians, equipment designers, 

engineers, and others who will operate 

the broadband infrastructure. Fourth, 

while the Office of Management and 

Budget has clarified which countries 

would be exempt from the Buy 

American provision, some of the key 

countries that produce broadband 

equipment would not be exempt. 

Finally, the broadband industry is very 

dynamic and global, and equipment can 

change over the course of a buildout. 

Subjecting public applicants for BTOP 

funds to the Buy American provision 

ultimately would slow broadband 

deployment and undermine the 

broadband initiatives. 

III. WAIVER 

On June 19, 2009, based on the public 

interest finding discussed above and 

pursuant to section 1605(c), the 

Secretary granted a limited waiver of the 

Recovery Act’s Buy American 

requirements with respect to BTOP 

funds used for the following essential 

components of a modern broadband 

infrastructure: 

• Broadband Switching Equipment — 

Equipment necessary to establish a 

broadband communications path 

between two points. 

• Broadband Routing Equipment — 

Equipment that routes data packets 

throughout a broadband network. 

• Broadband Transport Equipment — 

Equipment for providing 

interconnection within the broadband 

provider’s network. 

• Broadband Access Equipment — 

Equipment facilitating the last mile 

connection to a broadband subscriber. 

• Broadband Customer Premises 

Equipment and End-User Devices — 

End-user equipment that connects to a 

broadband network. 

• Billing/Operations Systems — 

Equipment that is used to manage and 

operate a broadband network or offer a 

broadband service. 

Note that this list does not include 

fiber optic cables, coaxial cables, cell 

towers, and other facilities that are 

produced in the United States in 

sufficient quantities to be reasonably 

available as end products. To the extent 

that an applicant wishes to use 

equipment that is not covered by this 

waiver, it may seek a waiver on a caseby-case basis as part of its application 

for BTOP funds, stating the statutory 

exemption upon which it is relying and 

its rationale for receiving a waiver. 

Further information on how to apply for 

a waiver will be available in BTOP 

Application Guidelines. 

Dated: June 26, 2009. 

Anna M. Gomez, 

Acting Assistant Secretary for 

Communications and Information. 

[FR Doc. E9–15514 Filed 6–30–09; 8:45 am] 

BILLING CODE 3510–60–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XP04 

Notice of Intent to Prepare an 

Environmental Impact Statement for 

Sea Turtle Conservation and Recovery 

in Relation to the Atlantic Ocean and 

Gulf of Mexico Trawl Fisheries and to 

Conduct Public Scoping Meetings 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; Extension of public 

comment period. 

SUMMARY: In response to requests from 

members of the public, NMFS extends 

the public comment period on the 

notice of intent to prepare an 

Environmental Impact Statement (EIS) 

to comply with the National 

Environmental Policy Act (NEPA) by 

assessing potential impacts resulting 

from the proposed implementation of 

new sea turtle regulations in the 

Atlantic and Gulf of Mexico trawl 

fisheries. The comment period is now 

extended for an additional 30 days until 

August 10, 2009. 

DATES: Comments will be accepted until 

August 10, 2009. Comments received or 

postmarked after that date will be 

considered to the extent practicable. 

ADDRESSES: Written comments on the 

scope of the EIS should be sent to 

Alexis.Gutierrez@noaa.gov, 1315 East 

West Highway, Silver Spring, MD 

20910; 301–713–2322 or fax 301–713– 

4060. Additional information, including 

the Scoping document, can be found at: 

http://www.nmfs.noaa.gov/pr/species/ 

turtles/strategy.htm. 

FOR FURTHER INFORMATION CONTACT: 

Dennis Klemm (ph. 727–824–5312, fax 

727–824–5309, email 

Dennis.Klemm@noaa.gov), Pasquale 

Scida (ph. 978–281–9208, fax 978–281– 

9394, email Pasquale.Scida@noaa.gov), 

Alexis Gutierrez (ph. 301–713–2322, fax 

301–713–4060, email 

Alexis.Gutierrez@noaa.gov). 

SUPPLEMENTARY INFORMATION: 

Background 

On May 8, 2009, NMFS published a 

Notice of Intent to Prepare an 

Environmental Impact Statement (EIS) 

for Sea Turtle Conservation and 

Recovery in Relation to the Atlantic 

Ocean and Gulf of Mexico Trawl 

Fisheries and to Conduct Public 

Scoping Meetings (74 FR 21627). The 

Notice announced that NMFS is 

developing rulemaking to address sea 

turtle bycatch in state and Federal trawl 

fisheries under the Endangered Species 

Act. The notice also announced that 

NMFS would conduct five public 

scoping meetings. NMFS has now 

conducted those scoping meetings and 

has been asked to extend the comment 

period for an additional 30 days. 

NMFS is asking for public comment 

on the alternatives outlined in the 

scoping document. NMFS will evaluate 

a range of alternatives in the Draft EIS 

for implementing phase one of the 

Strategy to reduce sea turtle bycatch and 

mortality in trawl fisheries along the 

Atlantic Coast. In addition to evaluating 

the status quo, NMFS will evaluate a 

range of alternatives including which 

Atlantic trawl fisheries will be 

regulated, the temporal and spatial 

aspects of the regulation and the 

potential changes to the operation of 

Atlantic trawl fisheries. These 

alternatives could include time and area 

closures, requiring the use of TEDs in 

the summer flounder, whelk, croaker 

and weakfish flynet and calico scallop 

trawls for the entire Atlantic Coast, as 

well as combination of spatial and 

temporal options. In terms of spatial 

options, sea turtles in U.S. waters range 

as far North as Georges Bank and the 

Gulf of Maine, but may be less likely to 

interact with a fishery towards the 

northern extent of this range. NMFSwill 

likely evaluate several alternatives 

related to the northern/northeastern 

extent of any required gear modification 

or other regulation. Similarly, several 

alternatives will likely be evaluated for 

the temporal extent of when a regulation 

would be in effect, as sea turtles migrate 

north along the Atlantic coast as waters 

warm each year, and are only present in 

more northern areas during the warmer 

months. The public scoping document, 

the powerpoint presentation and the 

Notice of Intent can be found at http:// 

www.nmfs.noaa.gov/pr/species/turtles/ 

strategy.htm. The public comment 

period is now extended 30 days and 

will close on August 10, 2009.