[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Notices]
[Pages 72449-72450]
From the Federal Register Online via the Government Publishing 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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