Notice of Buy American Waiver Under the American Recovery and Reinvestment Act of 2009, 72449-72450 [2011-30289]

Agencies

• NATIONAL SCIENCE FOUNDATION

[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Notices]
[Pages 72449-72450]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30289]


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NATIONAL SCIENCE FOUNDATION


Notice of Buy American Waiver Under the American Recovery and 
Reinvestment Act of 2009

AGENCY: National Science Foundation (NSF).

ACTION: Notice.

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SUMMARY: NSF is hereby granting a limited program-specific exemption of 
section 1605 of the American Recovery and Reinvestment Act of 2009 
(Recovery Act), Public Law 111-5, 123 Stat. 115, 303 (2009), for 
incidental items that comprise, in total, an amount that is no more 
than 5 percent of the total cost of the iron, steel, and manufactured 
goods used in and incorporated into a project funded through the 
Academic Research Infrastructure Recovery and Reinvestment Program.

DATES: November 23, 2011.

ADDRESSES: National Science Foundation, 4201 Wilson Blvd., Arlington, 
Virginia 22230.

FOR FURTHER INFORMATION CONTACT: Ms. Kathleen Clark Baukin, Division of 
Grants and Agreements, (703) 292-8210.

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, the National Science Foundation (NSF) hereby provides 
notice that on July 20, 2011, the NSF Chief Financial Officer, in 
accordance with a delegation order from the Director of the agency on 
27 May 2010, granted a de minimis exemption of section 1605 of the 
Recovery Act (Buy American provision) with respect to incidental items 
that comprise, in total, an amount that is no more than 5 percent of 
the total cost of the iron, steel, and manufactured goods used in and 
incorporated into a project funded through the Academic Research 
Infrastructure--Recovery and Reinvestment Program. The basis for this 
exemption is section 1605(b)(1) of the Recovery Act, in that executing 
individual exemptions for many of the incidental items used in 
construction and renovation, such as nuts, bolts, wires, cables, 
switches, etc. is not in the public interest. The total cost of 
incidental items requiring use of this limited exemption is expected to 
be less than 5% of the total Recovery Act funds awarded under the 
Academic Research Infrastructure--Recovery and Reinvestment Program or 
less than $10,000,000. Award terms and conditions still require 
awardees to Buy American to the extent practicable for items within the 
de minimis part of the projects.

I. Background

    The Recovery Act appropriated $200 million to NSF for projects 
being funded by the Foundations Academic Research Infrastructure--
Recovery and Reinvestment Program (ARI). This Program funds renovation 
of infrastructure for research at academic institutions and non-profit 
research organizations.

[[Page 72450]]

    Section 1605(a) of the Recovery Act, the Buy American provision, 
states that none of the funds appropriated by the Act ``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.''
    Subsections 1605(b) and (c) of the Recovery Act authorize the head 
of a Federal department or agency to waive the Buy American provision 
if the head of the agency finds 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. Finding That Individual Exemptions for Incidental Items Are Not in 
the Public Interest

    Recovery Act projects funded by the Academic Research 
Infrastructure--Recovery and Reinvestment Program (ARI) typically 
involve the use of literally thousands of miscellaneous, generally low-
cost items that are essential for, but incidental to, the construction, 
alteration, maintenance or repair of a public building or public work 
and are incorporated into the physical structure of the project, such 
as nuts, bolts, wires, cables, and switches. For many of these 
incidental items, the country of manufacture and the availability of 
alternatives are not always readily or reasonably identifiable in the 
normal course of business. More importantly, the miscellaneous 
character of these items, together with their low cost (both 
individually and when procured in bulk), characterize them as 
incidental to the project.
    Requiring individual waivers for incidental items would be time 
prohibitive and overly burdensome for both awardees and for the 
National Science Foundation (NSF) in carrying out the Recovery Act. 
Therefore, a nationwide limited de minimis waiver of incidental items 
up to a limit of no more than 5 percent of the total cost of the iron, 
steel, and manufactured goods used in and incorporated into a project 
is justified in the public interest.
    Issuance of this limited project-specific exemption recognizes 
NSF's commitment to expeditious expenditure of Recovery Act dollars, by 
balancing the need for expeditious and efficient implementation of the 
Recovery Act while still applying the Buy American provisions for 
materials that are greater than a de minimis part of the projects.
    With a similar purpose, on July 26, 2011, NSF published a de 
minimis exemption from the Buy American requirement for incidental 
items in a ship construction project [76 FR 44613].

III. Exemption

    On July, 20, 2011, and under the authority of section 1605(b)(1) of 
the Public Law 111n5 and delegation order dated 27 May 2010, with 
respect to the Academic Research Infrastructure--Recovery and 
Reinvestment Program awards funded by NSF, the NSF Chief Financial 
Officer granted a limited exemption (a waiver under the Recovery Act 
Buy American provisions) for incidental items that comprise, in total, 
a de minimis amount of the project; that is, any such incidental items 
up to a limit of no more than 5 percent of the total cost of the iron, 
steel, and manufactured goods used in and incorporated into a project 
that is funded under the Academic Research Infrastructure--Recovery and 
Reinvestment Program.
    Other Federal agencies have issued similar de minimis exemptions. 
For example, the Department of Energy issued a de minimis exemption 
relating to its Office of Energy Efficiency and Renewable Energy [75 FR 
35447 (June 22, 2010)].

    Dated: November 14, 2011.
Lawrence Rudolph,
General Counsel.
[FR Doc. 2011-30289 Filed 11-22-11; 8:45 am]
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