Notice of Limited, Program-Wide, Public Interest Waivers of Section 1605(a) (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009, 67118-67120 [2013-26827]

Agencies

• DEPARTMENT OF COMMERCE
• National Institute of Standards and Technology

[Federal Register Volume 78, Number 217 (Friday, November 8, 2013)]
[Notices]
[Pages 67118-67120]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26827]


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DEPARTMENT OF COMMERCE

National Institute of Standards and Technology

[Docket No. 130712613-3613-01]


Notice of Limited, Program-Wide, Public Interest Waivers of 
Section 1605(a) (Buy American Requirement) of the American Recovery and 
Reinvestment Act of 2009

AGENCY: National Institute of Standards and Technology, U.S. Department 
of Commerce (Commerce).

ACTION: Notice.

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SUMMARY: The National Institute of Standards and Technology (NIST) is 
hereby providing notice of two, program-wide, limited public interest 
waivers of the Buy American requirements set forth in the American 
Recovery and Reinvestment Act of 2009 (ARRA). The two limited, program-
wide, public interest waivers set forth in this Notice apply to 
projects constructed by recipients receiving financial assistance 
awards (grants) pursuant to the NIST ARRA Construction Grant Program to 
which the ARRA Buy American requirements apply.
    The first limited, program-wide, public interest waiver applies to 
a grant recipient's use of a de minimis amount of non-domestic iron, 
steel or manufactured goods that, in the aggregate, comprises no more 
than five percent of the total cost of the iron, steel and manufactured 
goods used in a grant recipient's ARRA construction project. The second 
limited, program-wide, public interest waiver applies to a grant 
recipient's use of non-domestic manufactured goods where such non-
domestic goods are necessary for the integration and operation of the 
recipient's construction project into the recipient's existing safety 
and security systems. Both program-wide, public interest waivers of the 
Buy American requirements apply over the entire award period of the 
grant projects. The two, limited, public interest Buy American waivers 
set forth in this Notice do not apply to procurement contracts issued 
pursuant to the NIST ARRA Construction of Research Facilities program.

[[Page 67119]]


DATES: The limited, public interest, ARRA Buy American waivers set 
forth in this Notice are effective upon publication and apply to 
certain iron, steel and manufactured goods used by recipients, at any 
time during an award's authorized construction period, in projects 
receiving financial assistance awards under the NIST ARRA Construction 
Grant Program.

FOR FURTHER INFORMATION CONTACT: Michael Diestel, P.E., Federal Program 
Officer, NIST Construction Grants Program Office, Office of Facilities 
and Property Management (OFPM), National Institute of Standards and 
Technology, 100 Bureau Drive, Mailstop 1900, Gaithersburg, Maryland 
20899; email: michael.diestel@nist.gov.

SUPPLEMENTARY INFORMATION: Section 1605(a) of the ARRA (Pub. L. 111-5) 
prohibits the use of ARRA funds 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 (Buy American requirements), or unless 
the head of a Federal department or agency grants a waiver to the Buy 
American requirements. ARRA Section 1605(b)(1) provides that the Buy 
American requirements shall not apply in any case or category in which 
the head of a Federal department or agency finds that applying the Buy 
American requirements would be inconsistent with the public interest. 
ARRA Section 1605(c) provides that if the head of a Federal department 
or agency makes a determination under ARRA Section 1605(b), the head of 
the department or agency shall publish a detailed written justification 
in the Federal Register.
    On November 23, 2010, the Secretary of Commerce delegated authority 
to the Under Secretary of Commerce for Standards and Technology and 
Director, National Institute of Standards and Technology (NIST 
Director) to make case-by-case inapplicability (waiver) determinations 
under ARRA Section 1605 for construction projects funded pursuant to 
the NIST ARRA Construction Grant Program. On September 10, 2013, the 
Secretary of Commerce amended the aforementioned November 23, 2010 
delegation of authority to authorize the NIST Director to make limited, 
program-wide, public interest waiver determinations under ARRA Section 
1605 for construction projects funded pursuant to the NIST ARRA 
Construction Grant Program.
    In accordance with ARRA Section 1605 and pursuant to the 
aforementioned amended delegation of authority to the NIST Director, 
the NIST Director is issuing the following two, limited, program-wide, 
public interest waivers of the Buy American requirements applying to 
projects funded by the NIST ARRA Construction Grant Program:
    (1) A grant recipient's use of a de minimis amount of non-domestic 
iron, steel or manufactured goods that, in the aggregate, comprises no 
more than five percent of the total cost of the iron, steel and 
manufactured goods used in a grant recipient's ARRA construction 
project (De Minimis Waiver); and
    (2) A grant recipient's use of non-domestic manufactured goods 
where such non-domestic goods are necessary for the integration and 
operation of the recipient's ARRA construction project into the 
recipient's existing safety and security systems (Safety and Security 
Systems Waiver). Both program-wide, public interest waivers of the Buy 
American requirements apply over the entire award period of the grant 
projects.

Background

    Pursuant to appropriated funding made available under ARRA, NIST 
issued competitive grant awards in the total amount of approximately 
$180 million to support the construction of 16 new research science 
facilities at 15 universities and 1 nonprofit research organization 
across the United States. The awarded construction projects support 
critical infrastructure for a diverse portfolio of cutting-edge 
scientific research ranging from offshore wind power, aquaculture, and 
marine ecology, to physics research and nanotechnology. Together with 
matching shares from the grant recipients, the 16 ARRA projects will 
result in more than $400 million being invested in new laboratory 
construction projects.
    Of the 16 recipients of NIST ARRA construction grants, the 
following 10 are subject to the ARRA Buy American requirements by 
virtue of their respective status as public universities and the 
respective status of their construction project as a public building or 
public work: Auburn University; Georgia Institute of Technology; Kansas 
University; Purdue University; University of Kentucky; University of 
Maine; University of Maryland at College Park; University of Nebraska 
at Lincoln; University of North Carolina at Wilmington; and University 
of Pittsburgh. The remaining 6 NIST ARRA construction grant awards are 
not subject to the ARRA Buy America requirements, which do not apply to 
construction projects owned by non-public organizations such as private 
institutions and non-profit entities: Columbia University; Georgetown 
University; NOVA Southeastern University; Rice University; University 
of Miami; and Woods Hole Oceanographic Institution.

De Minimis Waiver

    The NIST Director is hereby issuing a limited, program-wide, waiver 
of the ARRA Buy American requirements set forth in ARRA Section 1605(a) 
based on his determination that, under ARRA Section 1605(b)(1), the 
application of the Buy American requirements would be inconsistent with 
the public interest as applied to a de minimis amount of incidental 
items used in a grant recipient's construction project where such 
items, in the aggregate, comprise no more than five percent of the 
total cost of the iron, steel and manufactured goods used and 
incorporated into the project.
    Large-scale and complex construction projects, such as those 
supported by the NIST ARRA Construction Grant Program, typically use 
thousands of miscellaneous, generally low-cost items that are essential 
for, but incidental to, the construction of public buildings or public 
works that are incorporated into the physical structure of the project. 
The miscellaneous character of these items, together with their low 
cost (both individually and when procured in bulk), further 
characterize them as incidental to the project. Examples of these 
incidental construction items include nuts, bolts, wires, cables, 
switches, etc. For many of these incidental items, the country of 
manufacture and the availability of domestic alternatives are not 
always readily or reasonably identifiable to the grant recipient, even 
after substantial research and due diligence.
    Requiring NIST construction grant recipients to expend substantial 
resources to comply with Buy American requirements as they pertain to 
incidental construction components jeopardizes timely project 
completion by the recipients, as well as the public use of the much 
needed scientific research facilities and, therefore, is inconsistent 
with the public interest. Moreover, requiring grant recipients to 
request individual ARRA Buy American waivers for incidental components 
would be time prohibitive and overly burdensome for both grant 
recipients and NIST staff charged with the oversight of these projects. 
Accordingly, the NIST Director's issuance of the De Minimis waiver is 
justified in the public interest because it will help grant recipients 
(and their subrecipients and contractors) avoid unnecessary costs

[[Page 67120]]

and delays in carrying out their respective ARRA construction projects; 
thereby, facilitating the timely completion and public use of the 
newly-constructed scientific research facilities.

Safety and Security Systems Waiver

    The NIST is hereby issuing a limited, program-wide, waiver of the 
Director ARRA Buy American requirements set forth in ARRA Section 
1605(a) based on his determination that, under ARRA Section 1605(b)(1), 
the application of the Buy American requirements would be inconsistent 
with the public interest as applied to a grant recipient's use of non-
domestic manufactured goods where such non-domestic goods are necessary 
for the integration and operation of the recipient's ARRA construction 
project to the recipient's existing safety and security systems.
    All of the construction projects awarded under the NIST ARRA 
Construction Grant Program are either additions to existing buildings 
or new facilities within a campus environment. Public universities and 
other grant recipients constructing these projects generally employ 
uniform safety and security features that are interoperable across the 
campus, such as integrated police, fire alarm and other emergency 
communication systems, security locks, access card readers, high-
pressure steam valves, etc. These common and uniform safety and 
security systems tend to greatly enhance the proper functioning and 
availability of these systems as a whole; thereby, providing maximum 
protection to persons and property. Uniform systems are also generally 
more cost effective for recipients to install, monitor and maintain 
versus multiple or mismatched systems across a campus environment. 
Conversely, mismatched components are often incompatible and extremely 
difficult or impossible for the recipient to properly integrate into 
existing systems due to the differing technical specifications, 
fitments, and other interoperability concerns. As a result, mismatched 
components may not integrate into existing common security or building 
automation systems, or may be more prone to failure, as well as being 
costlier to maintain and repair than common systems. The potential for 
these mismatched systems to not properly integrate or communicate 
within an existing campus system could present imminent life safety 
concerns. Further, while system function and interoperability is of 
primary public interest concern, warranty is also a consideration in 
that certain manufacturers will not warranty their systems if non-
specified components or components from a specific manufacturer are not 
used.
    It is inconsistent with the public interest to increase safety 
risks to persons and casualty losses to property in order to comply 
with the ARRA Buy American requirements as they specifically apply to 
grant recipients' (and to their subrecipients' and contractors') use of 
non-domestic manufactured goods, where such non-domestic goods are 
necessary for the integration and operation of the recipient's ARRA 
construction project into the recipient's existing safety and security 
systems. Accordingly, NIST's issuance of the Safety and Security 
Systems Waiver is in the public interest because it will help ensure 
that the installation, maintenance, interoperability, and overall 
operation of safety and security systems incorporated into a grant 
recipient's construction project function properly and are otherwise 
compatible with the recipient's existing systems; thereby, providing 
maximum protection to persons and to property.

Recipient Compliance and NIST Monitoring

    Recipients of NIST ARRA Construction Grant Program awards seeking 
to utilize the De Minimis Waiver and/or the Safety and Security Systems 
Waiver must determine with specificity the items to be covered by the 
waiver(s) and must retain complete and accurate records and supporting 
documentation, including the types and/or categories of items to which 
this waiver is applied and, for incidental construction items, the 
calculations by which the grant recipient determined its use of non-
domestic iron, steel or manufactured goods used in the project equals 
five percent or less than the total cost of the iron, steel and 
manufactured goods used in the project. The recipient's records will be 
reviewed periodically by NIST as part of its ongoing project monitoring 
and oversight functions and, upon request, the records must be made 
available to the Department of Commerce Office of Inspector General for 
inspection.
    This SUPPLEMENTARY INFORMATION constitutes the detailed written 
justification required by ARRA Section 1605(c) for waivers based on a 
public interest finding under ARRA Section 1605(b)(1). The waiver 
determinations set forth herein are being made pursuant to the 
delegation of authority by the Secretary of Commerce to the NIST 
Director for projects funded under the NIST ARRA Construction Grant 
Program. The NIST Director reserves the right to revisit and amend the 
determinations set forth herein based on new developments or new 
information.

    Authority:  Section 1605 of the American Recovery and 
Reinvestment Act of 2009, Pub. L. 111-5, Section 1605.

Catalogue of Federal Domestic Assistance (CFDA): 11.618, National 
Institute of Standards and Technology Construction Grant Program

    Dated: November 4, 2013.
Kevin Kimball,
NIST Chief of Staff.
[FR Doc. 2013-26827 Filed 11-7-13; 8:45 am]
BILLING CODE 3510-13-P