[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Notices]
[Pages 4030-4031]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1623]
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
Nationwide Limited Public Interest Waiver Under 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 public interest waiver.
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SUMMARY: The U.S. Department of Energy (DOE) is hereby granting a
nationwide limited waiver of the Buy American requirements of section
1605 of the Recovery Act under the authority of section 1605(b)(1)
(amended public interest waiver), with respect to donated manufactured
goods.
DATES: Effective Date: December 6, 2011.
FOR FURTHER INFORMATION CONTACT: Christine Platt Patrick,
Weatherization and Intergovernmental Program, Office of Energy
Efficiency and Renewable Energy (EERE), (202) 287-1553,
buyamerican@ee.doe.gov, Department of Energy, 1000 Independence Avenue
SW., Mailstop EE-2K, Washington, DC 20585.
[[Page 4031]]
SUPPLEMENTARY INFORMATION: Under the authority of the Recovery Act,
section 1605(b)(1), the head of a Federal department or agency may
issue a ``determination of inapplicability'' (a waiver of the Buy
American provisions) if the application of section 1605 would be
inconsistent with the public interest. On April 25, 2011, the Secretary
of Energy delegated the authority to make all inapplicability
determinations to the Assistant Secretary for Energy Efficiency and
Renewable Energy, for EERE Recovery Act projects.
Pursuant to this delegation, the Acting Assistant Secretary has
determined that application of section 1605 restrictions would be
inconsistent with the public interest for items donated (provided at
zero cost) to EERE-funded Recovery Act projects.
This determination waives the Buy American requirements in EERE-
funded Recovery Act projects for donated manufactured goods. This
waiver Expires May 1, 2012.
Definitions--Donated means manufactured goods provided to the
project at zero cost. These goods must not hold a caveat, expectation,
or quid-pro-quo of any sort, nor may their donation bind the grant
recipient in any way. The recipient, for example, may not agree to pay
more for one item, so as to have another item donated, nor may they
promise more business in the future in exchange for a donated item. The
Contracting Officer and the Project Officer will be consulted to
determine whether the goods qualify as donated; this will serve to
prevent abuse of this waiver. This waiver applies only to the donated
manufactured goods themselves. All funds used in the project are still
subject to the Buy American requirements and other contract
requirements.
The Buy American provision ``prohibits use of recovery funds 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.'' 2 CFR 176. However, in a number of cases, grant recipients
and sub recipients have been able to secure offers of donation, for
items already installed that are non-compliant with the Buy American
provision of the Recovery Act. Offers of donation may free up the need
to spend federal dollars that otherwise would have been spent on those
donated items and that may also count towards the recipient's cost
share (10 CFR Sec. 600.224) for grants that require cost sharing. When
donated items are used in a project, freeing up allocated Recovery Act
funds, grantees will work with their Project Officers to allocate funds
to other projects, or to broaden the existing project. The ``freed-up''
Recovery Act funds may not be used on the purchase of non-compliant
manufactured goods in accordance with applicable laws.
For the reasons outlined above, I find that it is in the public
interest to issue a waiver of the Recovery Act Buy American provisions
that allows grantees to use donated manufactured goods in EERE funded
projects. This waiver should not be used as a means to circumvent the
Recovery Act Buy American provisions through encouraging recipients to
knowingly accept non-compliant goods that would be used on a Recovery
Act project to further leverage Recovery Act funds.
Issuance of this nationwide public interest waiver recognizes
EERE's commitment to expeditious costing of Recovery Act dollars by
enabling grantees and vendors to easily ascertain whether a project
complies with the Buy American provision. Issuance of this waiver
removes any need for EERE to issue a Recovery Act Buy American non-
compliance finding and negates economic waste that would result by
having a recipient uninstall or remove a donated good that is otherwise
compliant with the Recovery Act Buy American provisions.
In light of the foregoing, and under the authority of section
1605(b)(1) of Public Law 111-5 and the Redelegation Order of April 25,
2011, with respect to Recovery Act projects funded by EERE, on December
6, 2011, the Assistant Secretary issued a new ``determination of
inapplicability'' (a waiver under the Recovery Act Buy American
provisions) for donated manufactured goods.
The Assistant Secretary reserves the right to revisit and amend
this determination based on new information or new developments.
Authority: Public Law 111-5, section 1605.
Issued Washington, DC on December 6, 2011.
Henry Kelly,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy,
U.S. Department of Energy.
[FR Doc. 2012-1623 Filed 1-25-12; 8:45 am]
BILLING CODE 6450-01-P