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###### Environmental Protection Agency

          - [FRL-8925-6]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# 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                           ( print 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