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[Federal Register: March 26, 2010 (Volume 75, Number 58)]
[Notices]               
[Page 14592-14593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr10-52]                         

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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

 
Nationwide Limited Public Interest Waivers Under Section 1605 
(Buy American) of the American Recovery and Reinvestment Act of 2009 
(Recovery Act)

AGENCY: Office of Energy Efficiency and Renewable Energy, U.S. 
Department of Energy (DOE).

ACTION: Notice of limited waivers.

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SUMMARY: The Office of Energy Efficiency and Renewable Energy (EERE) of 
the U.S. Department of Energy hereby provides notice that on March 19, 
2010, the Assistant Secretary for EERE granted nationwide limited 
waivers of the Buy American requirements of the American Recovery and 
Reinvestment Act of 2009 (Recovery Act; Pub. L. 111-5) under the 
authority of section 1605(b)(1) [application of the restrictions of 
section 1605 would be inconsistent with the public interest] for the 
purchase of light-emitting diode LED lighting (lamps, fixtures, and any 
supporting components) and heating, ventilation and air conditioning 
(HVAC) units. These nationwide limited waivers apply to projects using 
EERE Recovery Act funds for the construction, alteration, maintenance 
and repair of a public building or public work. These limited waivers 
only apply in circumstances where the recipient of EERE Recovery Act 
funds (``grantee'') has taken substantial steps to commit funds for the 
purchase of LED lights or HVAC units between February 17, 2009 and 
March 31, 2010. Substantial steps to commit funds would include, but 
are not limited to: (1) issuing a Request for Proposals (RFP) on or 
before March 31, 2010 (applicable only where the grantee accepts a 
proposal received under that RFP); (2) in the case of a sole source 
selection: placing an order for the goods on or before March 31, 2010; 
(3) commencing a bidding process on or before March 31, 2010; (4) in 
circumstances where the grantee solicited quotes without an RFP: the 
grantee purchases the goods based on a quote dated on or before March 
31, 2010 and the order for the goods is placed on or before March 31, 
2010; and (5) grantee has executed a contract or purchase agreement 
with a supplier to acquire affected goods between February 17, 2009 and 
March 31, 2010.
    On March 31, 2010, these limited waivers of Buy American provisions 
will expire, with the exception of LED traffic lights, arrows, and 
crosswalk signals, which are covered by a nationwide categorical waiver 
based on domestic nonavailability issued on February 11, 2010. After 
March 31, 2010, EERE grantees are required to procure LED lighting and 
HVAC units from domestic manufacturers in accordance with the Recovery 
Act Buy American provisions.

DATES: Effective Date: March 19, 2010.

FOR FURTHER INFORMATION CONTACT: Benjamin Goldstein, Energy Technology 
Program Specialist, Office of Energy Efficiency and Renewable Energy 
(EERE), (202) 287-1553, Department of Energy, 1000 Independence Avenue, 
SW., Mailstop EE-2K, Washington, DC 20585.

SUPPLEMENTARY INFORMATION: Section 1605 of the Recovery Act prohibits 
the use of recovery 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. A waiver may be granted if 
the head of the Federal department or agency determines that one of 
three listed exceptions applies: (1) The application of Section 1605 
requirements would be inconsistent with the public interest; (2) the 
iron, steel, or relevant manufactured good is not produced in the 
United States in sufficient and reasonably available quantities and of 
a satisfactory quality; or (3) the cost of domestic iron, steel, or 
relevant manufactured goods will increase the cost of the overall 
project by more than 25 percent.
    In accordance with section 1605(c) of the Recovery Act and Section 
176.80 of Title 2 of the Code of Federal Regulations, DOE hereby 
provides notice that, pursuant to a delegation of authority by the 
Secretary of Energy, dated November 10, 2009, the Assistant Secretary, 
EERE, has granted limited nationwide waivers of the requirements of 
Section 1605 of the Recovery Act for LED lighting (lamps, fixtures, and 
any supporting components) and heating, ventilation and air 
conditioning (HVAC) units in circumstances where the recipient of EERE 
Recovery Act funds (``grantee'') has taken substantial steps to

[[Page 14593]]

commit funds for the purchase of LED lights or HVAC units between 
February 17, 2009 and March 31, 2010. Under the authority of section 
1605(b)(1) of the Recovery Act, the Assistant Secretary, EERE, has 
determined that the application of section 1605 requirements in these 
circumstances would be inconsistent with the public interest.
    The limited waivers for these two categories of manufactured goods 
are intended to resolve the confusion surrounding the characterization 
of LED lights and HVAC units as ``supply'' items, and thus not subject 
to the Recovery Act Buy American provisions. The concept of the 
``supply'' item has its origins in the Buy American Act (41 U.S.C. 10a-
10d) and the Federal Acquisition Regulation (FAR), neither of which 
applies to section 1605 of the Recovery Act. The concept of a 
``supply'' item has no significance in the context of section 1605 (the 
Buy American provisions) of the Recovery Act. The Buy American 
provisions apply to all iron, steel, and manufactured goods used for a 
project funded by Recovery Act appropriations for the construction, 
alteration, maintenance, or repair of a public building or public work. 
However, there is no requirement with regard to the origin of 
components or subcomponents in manufactured goods used in the project, 
as long as the manufacturing occurs in the United States (2 CFR 
176.70).
    However, it is understandable that a general lack of familiarity 
with the Buy American provisions would lead Recovery Act stakeholders 
to reference a similar set of procurement regulations--such as those 
codified by the FAR and Buy American Act--for guidance in understanding 
and interpreting section 1605 of the Recovery Act. This confusion 
ultimately led some recipients of EERE Recovery Act funds to rely on 
the ``supply'' item characterization to procure some LED lighting 
products and HVAC units from foreign manufacturers, without first 
seeking and obtaining an official waiver of section 1605 of the 
Recovery Act.
    The purpose of the Recovery Act Buy American provisions is to 
support economic recovery by driving investment into the domestic 
manufacturing sector and recycling Recovery Act dollars within the U.S. 
economy. Given that the majority of Recovery Act-related procurement 
for EERE-funded projects has yet to occur, the Buy American provisions 
still have ample opportunity to fulfill their purpose and potential. 
This nationwide limited waiver being issued for LED lighting and HVAC 
units is critical to resolving the existing confusion, clearly 
elucidating the requirements of section 1605 of the Recovery Act, and 
moving forward in a proactive manner.
    To support this potential, facilitate the implementation of section 
1605 of the Recovery Act, and ensure that Recovery Act funds are 
deployed expeditiously, EERE is operationalizing a robust and proactive 
strategy to locate domestic manufacturers for the hard-to-find products 
sought by grantees. This strategy is outlined in a Request for 
Information published in Federal Register Vol. 75, No. 23 on Thursday, 
February 4 (and posted on the EERE Buy American Web page http://www1.eere.energy.gov/recovery/buy_american_provision.html), and 
demonstrates EERE's commitment to the fulfillment of the economic and 
job-creation potential of the Recovery Act Buy American provisions.
    Finally, the installation of LED lights and more efficient HVAC 
units is a proven strategy to achieve impressive energy savings, reduce 
energy expenditures, and to create immediate jobs in the building, 
construction, and electrical trades. All three of these attributes can 
support near-term economic recovery and long-term sustainability in 
locations across the country. Hence, the installation of these products 
has inherently supported the goals of the Recovery Act and--as a 
popular use of Recovery Act funds by EERE grantees--will continue to do 
so in the unambiguous regulatory landscape made possible by this 
nationwide limited waiver.
    This SUPPLEMENTARY INFORMATION constitutes the detailed written 
justification required by Section 1605(c) for waivers based on a 
finding under subsection (b).
    This waiver determination is pursuant to the delegation of 
authority by the Secretary of Energy to the Assistant Secretary for 
Energy Efficiency and Renewable Energy with respect to expenditures 
within the purview of her responsibility. Consequently, this waiver 
applies to EERE projects carried out under the Recovery Act.

    Authority: Pub. L. 111-5, section 1605.

    Dated: March 19, 2010.
Cathy Zoi,
Assistant Secretary for Energy Efficiency and Renewable Energy, U.S. 
Department of Energy.
[FR Doc. 2010-6720 Filed 3-25-10; 8:45 am]
BILLING CODE 6450-01-P
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