[Federal Register Volume 78, Number 217 (Friday, November 8, 2013)]
[Notices]
[Pages 67118-67120]
From the Federal Register Online via the Government Publishing 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: [email protected].
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