[Federal Register Volume 76, Number 118 (Monday, June 20, 2011)]
[Pages 35920-35922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15295]



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

AGENCY: National Science Foundation (NSF).

ACTION: Notice.


SUMMARY: NSF is hereby granting a limited exemption of section 1605 of 
the American Recovery and Reinvestment Act of 2009 (Recovery Act), 
Public Law 111-5, 123 Stat. 115, 303 (2009), with respect to the 
purchase of the ultrasonic antifouling system that will be used in the 
Alaska Region Research Vessel (ARRV). An ultrasonic antifouling system 
prevents the harmful growth of marine organisms in the ship's sea water 
inlets and piping systems.

DATES: June 20, 2011.

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

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Leithead, Division of 
Acquisition and Cooperative Support, 703-292-4595.

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 May 25, 2011, the NSF Chief Financial Officer, in 
accordance with a delegation order from the Director of the agency, 
granted a limited project exemption of section 1605 of the Recovery Act 
(Buy American provision) with respect to the ultrasonic antifouling 
system that will be used in the ARRV. The basis for this exemption is 
section 1605(b)(2) of the Recovery Act, in that an ultrasonic 
antifouling system of satisfactory quality is not produced in the 
United States in sufficient and reasonably available commercial 
quantities. The cost of the ultrasonic antifouling system (~$21,000) 
represents less than 0.1% of the total $148 million Recovery Act award 
provided toward construction of the ARRV.

I. Background

    The Recovery Act appropriated $400 million to NSF for several 
projects being funded by the Foundation's Major Research Equipment and 
Facilities Construction (MREFC) account. The ARRV is one of NSF's MREFC 
projects. 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

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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.''
    The ARRV has been developed under a cooperative agreement awarded 
to the University of Alaska, Fairbanks (UAF) that began in 2007. UAF 
executed the shipyard contract in December 2009 and the project is 
proceeding toward construction. The purpose of the Recovery Act is to 
stimulate economic recovery in part by funding current construction 
projects like the ARRV that are ``shovel ready'' without requiring 
projects to revise their standards and specifications, or to restart 
the bidding process again.
    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 Relevant Goods Are Not Produced in the United States 
in Sufficient and Reasonably Available Quality

    Installation of an ultrasonic antifouling system is included in the 
construction specifications of the ARRV to prevent the growth of marine 
organisms in the ship's sea water inlets and piping systems. Harmful 
marine organisms for ships include barnacles, shellfish and grasses and 
are known collectively as ``biofouling.'' There are five inlets and 
piping systems on the ARRV that require protection; two that supply 
seawater for scientific purposes, and three that supply cooling water 
to the main machinery and auxiliary systems. Main machinery includes 
diesel engines on the generators and main electric propulsion motors. 
Auxiliary machinery includes fire fighting, ballast and heating 
ventilating and air conditioning systems. If the growth of these 
organisms goes un-checked, the water flow to the machinery will 
decrease to the point where they will not perform as required or damage 
will occur as a result of overheating. Science seawater systems include 
uncontaminated seawater for sampling as the ship is underway, and 
incubator water for keeping samples at the current sea surface 
temperature. If the flow to the science seawater systems is reduced, or 
contaminated with undesirable marine growth or chemicals from a 
different kind of antifouling system, the data collected could be 
severely compromised and not meet scientific data quality requirements.
    Design drivers for selecting the type of anti-fouling system used 
    1. Proven ability to control marine growth in inlets and piping
    2. No chemical contamination of the seawater itself. Failure to 
meet either of these technical requirements would have severe negative 
consequences for the project with regard to nonperformance and 
significant added program cost.
    An ultrasonic antifouling system produces low level sound waves in 
the water of a certain frequency that discourages marine organisms from 
growing in the area. Specifying such a system prevents the vessel from 
having to use other methods that potentially contaminate the water with 
biocides, such as anti-fouling paints (which generally contain copper) 
or other systems which inject chemicals. Both of these chemical-based 
methods would have a detrimental effect on the uncontaminated science 
seawater system by introducing chemicals that would skew the natural 
elements being studied and thus produce erroneous data. An ultrasonic 
system has zero discharges into the water and is proven technology that 
offers excellent protection against marine biofouling in localized 
areas. Use of such a system will help ensure that science samples are 
taken from ``pure'' sea water to the maximum extent possible.
    The daily cost of operations for the ARRV is estimated at $45,000 
per day in 2014 dollars, or $12.6M/year for 280 days at sea. Given that 
the science seawater system is employed on nearly every multi-
disciplinary science cruise, the loss to science and the federal ship 
funding agencies could be significant if samples were found to be 
contaminated or otherwise compromised. A main machinery casualty from 
overheating could result in the loss or re-scheduling of weeks of ship 
time and cost hundreds of thousands of dollars in repairs.
    The initial market research for availability of an ultrasonic 
antifouling system was done by UAF in 2009. Only two sources were 
identified world-wide and none were manufactured in the U.S. As noted 
in UAF's request for this exemption, the shipyard performed market 
research in late 2010 by reviewing industry publications and the 
internet in order to assess whether there exists a domestic capability 
to provide an ultrasonic antifouling system that meets the necessary 
requirements. None were found. The result of the shipyard's independent 
market research remains consistent with a determination made by the UAF 
project team in 2009.
    The project's conclusion is there are no U.S. manufacturers who 
produce a suitable ultrasonic antifouling system that meets all of the 
ARRV requirements so an exemption to the Buy American requirements is 
    In the absence of a domestic supplier that could provide a 
requirements-compliant ultrasonic antifouling system, UAF requested 
that NSF issue a Section 1605 exemption determination with respect to 
the purchase of a foreign-supplied, requirements-compliant ultrasonic 
antifouling system, so that the vessel will meet the specific design 
and technical requirements which, as explained above, are necessary for 
this vessel to be able to perform its mission safely and successfully. 
Furthermore, the shipyard's market research was consistent with UAF's 
and indicated that an ultrasonic antifouling system compliant with the 
ARRV's technical specifications and requirements is commercially 
available from foreign vendors within their standard product lines.
    NSF's Division of Acquisition and Cooperative Support (DACS) and 
other NSF program staff reviewed the UAF exemption request submittal, 
found that it was complete, and determined that sufficient technical 
information was provided in order for NSF to evaluate the exemption 
request and to conclude that an exemption is needed and should be 

III. Exemption

    On May 25, 2011, based on the finding that no domestically produced 
ultrasonic antifouling system met all of the ARRV's technical 
specifications and requirements and pursuant to section 1605(b), the 
NSF Chief Financial Officer, in accordance with a delegation order from 
the Director of the agency signed on May 27, 2010, granted a limited 
project exemption of the Recovery Act's Buy American requirements with 
respect to the procurement of an ultrasonic antifouling system.

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    Dated: June 14, 2011.
Lawrence Rudolph,
General Counsel.
[FR Doc. 2011-15295 Filed 6-17-11; 8:45 am]