2010-15657. Notice of a Waiver of Section 1605 of the American Recovery and Reinvestment Act of 2009 (ARRA) for Indian River Central School District, Philadelphia, New York

SUMMARY:

In this notice, the Department of Education (the Department) announces its waiver of the Buy American requirements in section 1605(a) of the ARRA (Buy American Requirements) for the Indian River Central School District in Philadelphia, New York (Indian River District) and the justification for this waiver. This waiver permits use of compatible telephones, servers, and software as well as American Power Conversion (APC) power supply and surge suppression equipment in the Indian River District's telecommunications project, which is supported with Impact Aid funds appropriated under the ARRA.

SUPPLEMENTARY INFORMATION:

The Department provided the Indian River District with an Impact Aid ARRA formula grant for school construction activities authorized under section 8007(a) of the Elementary and Secondary Education Act of 1965, as amended. The Indian River District proposes to use these funds for a telecommunications infrastructure investment, but reports that the particular telecommunication and power supply components needed for this construction project are not produced in the United States.

In accordance with section 1605(c) of the ARRA, the Department hereby provides notice that it is granting a waiver of the Buy American Requirements for the Indian River District's telecommunications project. This notice constitutes the detailed written justification that the Department is required to publish in instances when it grants such a waiver pursuant to section 1605(b) of the ARRA.

Section 1605(a) of the ARRA requires that none of the appropriated funds be used 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 ARRA further provides that this requirement does not apply, and that a waiver may be granted, when the head of the Federal department or agency involved finds that: (1) Applying these requirements would be inconsistent with the public interest; (2) iron, steel, and relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and relevant manufactured goods produced in the United States will increase the overall cost of the project by more than 25 percent.

The district seeks a waiver based on the fact that the telecommunications upgrade will provide the necessary support to provide a reliable flow of products and services essential to the smooth functioning of government at the local level. The project would completely replace the current telecommunications infrastructure for six buildings within the school district, and make it consistent with a single Voice over Internet Protocol (VoIP) system that has already been installed in the district's other three facilities. One problem with the current infrastructure is that there are four different systems installed in the various buildings, which has contributed to incompatible systems and ineffective communications. As a result, the district determined that it is essential that all of it buildings should share a single, state-of-the-art system.

The district reported that the existing VoIP system comprises Cisco telephones, servers, and software as well as American Power Conversion (APC) power supply and surge suppression equipment. While both Cisco and APC are American firms that provide the bulk of the equipment and software in the U.S., the products themselves are manufactured in China and India. In order to remain technologically consistent with the district facilities that were updated with other resources and use materials of comparable satisfactory quality, the school district would need to use the same products in the proposed project.

The Secretary has determined that a section 1605(b) waiver of the Buy American Requirements is appropriate for the Indian River District's telecommunications project because, based on information provided by the Indian River District as well the Department's own research, the particular telecommunications and power supply components needed for this project are not manufactured in the United States. The Department bases this determination on information provided by the Indian River District as well as its own research. The Indian River District has provided information to the Department documenting that there are no Cisco telephones, servers, and software or APC power supply and surge suppression equipment manufactured in the United States. In addition, based on the Department's own research (Internet product literature searches) and to the best of the Department's knowledge at the time of its review of the Indian River District's waiver request, there do not appear to be U.S.-manufactured Cisco telephones, servers, and software or APC power supply and surge suppression equipment available to the Indian River District for the ARRA-funded telecommunications project.

Furthermore, the purpose of the ARRA is to stimulate economic recovery, in part, by funding current infrastructure construction, and not to delay projects that are “shovel ready” by requiring the revision of standards and specifications or a new bidding process. The imposition of the Buy American Requirements on such otherwise eligible projects would result in requiring the district to abandon a VoIP system that it already had purchased and installed in three facilities or requiring it to install possibly incompatible technology in the six remaining facilities. Either alternative is inconsistent with the public interest. In addition, imposing Buy American requirements for this project at this point would also result in an unreasonable delay, and to further delay construction would be in direct conflict with a fundamental economic purpose of the ARRA, which is to create or retain jobs.

The Department has reviewed the Indian River District's waiver request and has determined that the supporting documentation is sufficient to demonstrate that a waiver is justified under section 1605(b) of the ARRA. Having established both a proper basis to specify the particular goods required for this project, and that these compatible manufactured goods are not available from a producer in the United States, the Indian River District is hereby granted a waiver from the Buy American Requirements reflected in section 1605(a) of the ARRA for the installation of the telecommunication and power supply components of compatible telecommunications infrastructure (including telephones, servers, and software) in all of the district's school facilities using ARRA funds as specified in the Indian River District's request.

FOR FURTHER INFORMATION CONTACT:

Kristen Walls-Rivas, Impact Aid Program, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. Telephone: [phone] or via Internet: [e-mail].

If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339. Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed in this section.

Electronic Access to This Document: You may view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/​news/​fedregister. To use PDF you must have Adobe Acrobat Reader, which is available free at this site.

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/​nara/​index.html.

Authority: Section 1605 of the American Recovery and Reinvestment Act, Public Law 111-5.

Dated: June 23, 2010.

Arne Duncan,

Secretary of Education.