[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Notices]
[Pages 44613-44614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18643]


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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 project-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), with 
respect to incidental items costing $10,000 or less used in and 
incorporated into the Alaska Region Research Vessel (ARRV) project.

DATES: July 26, 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 July 6, 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 each incidental 
item costing $10,000 or less that is used in and incorporated into the 
ARRV project. The basis for this exemption is section 1605(b)(1) of the 
Recovery Act, in that executing individual exemptions for incidental 
items costing $10,000 or less is not in the public interest. The total 
cost of incidental items requiring use of this limited exemption is 
expected to be less than $750,000, which represents less than 0.5% of 
the total Recovery Act award.

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 
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 
currently under 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.
    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.
    NSF has previously granted exemptions for purchase of the bow 
thruster [75 FR 9256 (March 1, 2010)], anti-roll tank control system 
[76 FR 184 (January 3, 2011)], weather fax [76 FR 186 (January 3, 
2011)], ultrasonic antifouling system [76 FR 35920 (June 20, 2011)], 
and HVAC generators [76 FR 35919 (June 20, 2011)]; all of which were in 
excess of this $10,000 de minimus waiver and not produced in the United 
States in sufficient and reasonably available commercial quantities.

II. Finding That Individual Exemptions for Incidental Items Are Not in 
the Public Interest

    Ship construction projects typically involve the use of literally 
hundreds of miscellaneous, generally low-cost items that are essential 
for, but incidental to, the construction of the vessel. These items are 
permanently incorporated into the physical structure and connected to 
other sub-systems in the ship and include such things as galley 
appliances, stateroom furnishings,

[[Page 44614]]

fixtures, and electronic equipment. For many of these incidental items, 
U.S. manufactured alternatives are not always readily or reasonably 
available. The miscellaneous character of these manufactured goods, 
together with their low individual cost, characterize them as items 
incidental to the project. Requiring individual exemptions for low 
cost, incidental items would be time prohibitive and overly burdensome 
for the awardee (University of Alaska, Fairbanks), subcontractor 
(shipyard) and for NSF. Such a de minimis exemption allows the award 
recipients to focus their efforts on the major manufactured goods 
within the ARRV project. The terms and conditions of the award still 
require UAF to Buy American to the extent practicable for items less 
than $10,000. Therefore, a limited project-specific de minimis 
exemption for any such incidental item costing $10,000 or less used in 
and incorporated into the ARRV project is justified in the public 
interest. The Department of Energy has issued a similar type of de 
minimis exemption, relating to its Office of Energy Efficiency and 
Renewable Energy [75 FR 35447 (June 22, 2010)].
    At this phase in the ARRV project, it is estimated that only 
$750,000 of incidental items will require use of the de minimis 
exemption. To ensure proper oversight with regard to use of this 
exemption within the project, the agency hereby establishes an 
allowable ceiling of $1.5M for the application of this de minimis 
exemption; this represents approximately 2.5% of the total value of 
materials used in the vessel. (Since the previously-granted exemptions 
for the purchase of ARRV equipment were not granted on this de minimis 
basis, but instead because there was not a domestic manufacturer of the 
qualifying equipment, those purchases do not fall within the $1.5M 
ceiling for the use of this de minimis exemption.)
    Issuance of this limited project-specific exemption recognizes 
NSF's commitment to expeditious spending of Recovery Act dollars 
balanced against the need for efficient implementation of the Recovery 
Act provision while still maintaining the Buy American requirements for 
manufactured goods that are greater than the de minimis amount of 
$10,000.

III. Exemption

    On July 6, 2011, and under the authority of section 1605(b)(1) of 
the Public Law 111-5 and delegation order dated 27 May 2010, with 
respect to the Alaska Region Research Vessel Project funded by NSF, the 
NSF Chief Financial Officer granted a limited project exemption for any 
incidental item costing $10,000 or less used in and incorporated into 
the project. With this exemption, the agency hereby establishes a $1.5M 
ceiling for the total allowable value of de minimis exemptions used on 
this project.

    Dated: July 7, 2011.
Lawrence Rudolph,
General Counsel.
[FR Doc. 2011-18643 Filed 7-25-11; 8:45 am]
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