[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Notices]
[Pages 80373-80374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32782]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA)

AGENCY: Indian Health Service (IHS), HHS.

ACTION: Notice.

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SUMMARY: The IHS is hereby granting waivers of the Buy American 
requirements of ARRA Section 1605 under the authority of Section 
1605(b)(1) [applying the Buy American provision would be inconsistent 
with the public interest] to the Alaska Native Tribal Health Consortium 
(ANTHC) for the specific Alaska projects listed in this notice for the 
purchase of a foreign manufactured equipment to be installed on those 
sanitation facilities construction projects. This is a project specific 
waiver and only applies to the use of the specified product for the 
ARRA projects listed in this notice. Any other ARRA recipient that 
wishes to use the same product must apply for a separate waiver based 
on project specific circumstances. Based upon information submitted by 
the ANTHC professional engineering staff, it has been determined that 
applying the Buy American provision would be inconsistent with the 
public interest. The IHS is making this determination based on the 
review and recommendation of the IHS Alaska Area Office. This action 
permits the purchase of a foreign manufactured item for the projects 
specified in this notice.
    Waivers are granted for the ARRA funded ANTHC projects in these 
Alaska communities: City of Angoon for water treatment plant media 
filters, City of Buckland for Flygt submersible wastewater pumps and 
appurtenances, City of Chignik for water treatment plant measuring 
equipment, City of Chuathbaluk for Grundfos pumps for its water and 
sewer systems, City of Deering for Grundfos pumps for its infiltration 
gallery and filtration plant, and City of Hooper Bay for Toyotomi Fuel 
Lift pumps for its existing Toyotomi fuel oil fired hotwater heaters.

DATES: Effective Date: Upon publication.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
Section 176.80 of the rules of the Office of Management and Budget 
(OMB) (2 CFR 176.80), the IHS hereby provides notice that it is 
granting a limited waiver of the requirements of section 1605(a) of 
Public Law 111-5, Buy American requirements, based on the public 
interest authority of section 1605(b)(1), to allow the use of non-
domestic iron, steel, and manufactured goods in eligible sanitation 
facilities construction projects.
    ARRA 1605(a) prohibits the use of Recovery Act 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, or unless a 
waiver is granted by the head of the Federal department or agency. ARRA 
1605(b) provides that the Buy American requirement shall not apply in 
any case

[[Page 80374]]

or category in which the head of a Federal department or agency finds 
that: (1) Applying the Buy American requirement would be inconsistent 
with the public interest; (2) iron, steel, and the relevant 
manufactured goods are not produced in the U.S. in sufficient and 
reasonably available quantities or of satisfactory quality; or (3) 
inclusion of iron, steel, and manufactured goods will increase the cost 
of the overall project by more than 25 percent. ARRA 1605(c) provides 
that if the head of a Federal department or agency makes a 
determination under 1605(b), the head of the department or agency shall 
publish a detailed written justification in the Federal Register. The 
finding relevant to this waiver is at ARRA 1605(b)(1), that applying 
the Buy American requirement would be inconsistent with the public 
interest.
    In drafting this waiver, IHS considered the fact that these types 
of components are used in State of Alaska and Environmental Protection 
Agency (EPA) funded projects as well as those funded by the IHS. The 
State's remote maintenance worker program, which provides technical 
assistance to village operators on the operation and maintenance of 
their systems, is dependent on the standardization of those items since 
almost all travel to assist Native village system operators must be 
accomplished on small single engine aircraft with limited cargo 
capacity. The disproportionate cost and delay that would be imposed on 
projects if the IHS did not issue this waiver would jeopardize project 
completion and related jobs in remote areas including Alaska villages 
where the only means of transporting such components is by air. In 
addition, the majority of Alaska sanitation facilities construction 
projects occur in remote locations, the summer construction season is 
very short, and water and wastewater systems and their component 
equipment must be reliable during the long Alaska winters with its sub-
zero temperatures.
    Based on the findings discussed above and pursuant to Section 
1605(c), the IHS is hereby granting waivers to the ANTHC for the 
projects listed above. The IHS has determined that imposing the Buy 
American requirement for the items incorporated into the listed 
projects would be inconsistent with the public interest and 
particularly with ARRA's directives to ensure expeditious construction 
consistent with prudent management. Accordingly, IHS is hereby issuing 
waivers from the requirements of ARRA Section 1605(a) to ANTHC for the 
components described for the listed projects.
    The ANTHC must retain relevant documentation as to these project 
items in their project files, including the types and/or categories of 
items to which this waiver is applied, the total cost of components 
covered by the waiver for each type or category, and the calculations 
by which they determined the total cost of materials used in and 
incorporated into the project.
    The IHS has determined that the ANTHC's waiver request is late, but 
for the reasons set forth below the IHS will evaluate the request as if 
it were timely made even though the request was made after the project 
execution. Pursuant to the OMB guidance at 2 CFR 176.120, the IHS may 
determine that the ANTHC's request can be evaluated as timely if the 
recipient demonstrates why it could not request the determination 
before making the obligation or if the need for a waiver was not 
reasonably forseeable. For those waivers which do not have a reasonably 
foreseeable basis for lateness, but for which the waiver basis is valid 
and there is no apparent gain by the ARRA recipient or loss on behalf 
of the government, then IHS will still consider granting the waiver.
    The waiver request was not submitted earlier because of extensive 
legal discussions regarding waiver qualifications and whether Tribal 
community systems were considered public works. Tribal land status 
under the Alaska Native Claims Settlement Act is complex, and differs 
from that of Tribal lands on lower 48 reservations, and could have 
affected the applicability of Buy American provisions.
    Delaying ongoing construction projects of needed water and 
wastewater systems will create public health implications in remote 
Alaska communities and there is no indication that ANTHC failed to 
request a waiver to avoid the requirements of the ARRA. In the interest 
of the Alaska Natives benefitting from the sanitation facilities 
constructed in the communities in this notice, the ANTHC decided to 
request this waiver. Accordingly, the IHS will evaluate the request as 
if it were timely made.
    The IHS has determined, based on its 50-year experience 
constructing sanitation facilities for Alaska Native communities and 
the professional engineering judgment of the IHS Alaska Area Office, 
that it is in the overall public interest and benefit to incorporate 
the items in the listed sanitation facilities construction projects.
    Further, as described above, in some cases projects are jointly 
funded by IHS and the EPA. The waivers apply to the listed projects 
regardless of whether the funding for the projects originated from IHS 
or EPA.

    Authority: Public Law 111-5, Section 1605.

FOR FURTHER INFORMATION CONTACT: Ms. Betty Gould, Regulations Officer, 
801 Thompson Avenue, TMP, Suite 450, Rockville, MD 20852-1627; call 
non-toll free (301) 443-7899; send via facsimile to (301) 443-9879; or 
send your email requests, comments, and return address to: 
[email protected].

    Dated: December 12, 2011.
Yvette Roubideaux,
Director, Indian Health Service.
[FR Doc. 2011-32782 Filed 12-22-11; 8:45 am]
BILLING CODE 4165-16-M