[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30144-30145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12721]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy


Limited Public Interest Waiver 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 Waiver.

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SUMMARY: The U.S. Department of Energy (DOE) is hereby granting a 
limited waiver of the Buy American requirements of section 1605 of the 
Recovery Act under the authority of Section 1605(b)(1) (public interest 
waiver), with respect to section 1605 of the Recovery Act of 2009 (the 
Buy American provision) for the Golden Triangle Regional Solid Waste 
Management Authority (GTR) landfill gas to energy project, funded in 
part under a sub-award (AR060-GT11-0111-0001) from the Mississippi 
State Energy Office, recipient of EECBG Award EE0000763.

DATES: Effective April 15, 2011.

FOR FURTHER INFORMATION CONTACT: Benjamin Goldstein, Recovery Act Buy 
American Coordinator, Weatherization and Intergovernmental Program, 
Office of Energy Efficiency and Renewable Energy (EERE), (202) 287-
1553, [email protected], Department of Energy, 1000 Independence 
Avenue SW., Mailstop EE-2K, Washington, DC 20585.

SUPPLEMENTARY INFORMATION: This waiver applies only to this project for 
the purchase of a GE Jenbacher JMC 320 gas reciprocating engine 
manufactured in Austria.
    Section 1605 of the American Recovery and Reinvestment Act of 2009, 
(Pub. L. 111-5), 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. This prohibition 
applies when any part of the project is paid for with Recovery Act 
funds.
    The landfill gas to energy project is funded, in part, by sub-award 
AR060-GT11-0111-0001 in the amount of $310,000.00 from the Mississippi 
State Energy Office, recipient of EECBG Award EE0000763. Because this 
grant funds a portion of the project cost, all manufactured goods used 
in the project are subject to the Buy American Provisions--even if 
separate (non-federal) funds are used to purchase those items.
    Specifically, this public interest determination waives the Buy 
American requirements for the Austrian made GE Jenbacher JMC 320 gas 
reciprocating engine being used in the landfill gas to energy project 
of the Golden Triangle Regional Solid Waste Management Authority (GTR). 
GTR had already entered into an agreement to purchase this item with 
non-federal funds before ARRA funds became available. And although ARRA 
funds will now be used in the project as a whole (the project has a 
total cost of approximately $2 million dollars), those funds will not 
be used to purchase the GE Jenbacher JMC 320 gas reciprocating engine 
or any other foreign goods.
    The GE Jenbacher JMC 320 gas reciprocating engine is only one 
manufactured good being used in the GTR landfill gas to energy project. 
This project also includes an American manufactured treatment skid, 
valued at approximately $470,000 dollars and the overall construction 
of the facility, valued at approximately $700,000. All manufactured 
goods, iron and steel that will be used in the project, with the 
exception of the GE Jenbacher JMC 320 gas reciprocating engine, will 
remain subject to the Buy American Provisions of the Recovery Act. No 
ARRA funds will be used towards the purchase of the GE Jenbacher JMC 
320 gas reciprocating engine.
    In September of 2010, GTR entered into a Generation Partners 
Agreement (GPA) with the Tennessee Valley Authority (TVA) for a 
landfill gas to energy project. Generation Partners is a TVA renewable 
energy initiative that provides technical support and incentives for 
the installation of renewable generation facilities. This GPA pays GTR 
the retail price of local electricity plus $0.03 per kilowatt-hour for 
renewable energy. This GPA was awarded as part of GTR's application 
under the TVA Green Power Partners Program. This GPA is extremely 
aggressive for this region of the United States, where renewable energy 
projects are generally negotiated at avoided cost levels. As part of 
the TVA Green Power Partners Program GPA contract, GTR is required to 
have the renewable energy system operational within 12 months of the 
signed GPA.
    In October of 2010, pursuant to the GPA with TVA, GTR selected and 
contracted with Nixon Energy in to purchase a GE Jenbacher JMC 320 gas 
reciprocating engine for approximately $870,000. The contract language 
signed between GTR and Nixon Energy states that cancellation of the 
contract would require GTR to pay the entire price of the contract to 
Nixon Energy.
    In December of 2010, the GTR landfill gas to energy project was 
targeted by the Mississippi Department of Environmental Quality and 
Mississippi Development Authority (MDA) as a potential project to fund 
with ARRA funds awarded under EERE EECBG Award EE0000763. On January 
12th, 2011 a meeting was held, and the MDA determined that the GTR 
landfill gas to energy project was an appropriate use of award funds.
    On January 28, 2011 the award recipient applied for a public 
interest waiver, to allow the use of the Austrian manufactured GE 
Jenbacher JMC 320 gas reciprocating engine.
    EERE recognizes that there are US manufacturers of generator sets. 
Had GTR been identified as a potential grant recipient earlier in the 
procurement process, EERE would have worked with GTR to find a US 
manufactured generator set that met their needs. In a case where a 
grantee cannot identify a domestically manufactured good, EERE utilizes 
its internal experts and its MOU with NIST-MEP to communicate with 
potential manufacturers and facilitate discussions between grantees and 
domestic producers.
    EERE believes the public interest is best served by supporting 
projects that create or support jobs in the domestic manufacturing and 
construction industries while supporting a renewable energy 
infrastructure. The GTR landfill gas to energy project, with a total 
value of over $2 million dollars, furthers both of these goals. Because 
no ARRA funds will be used towards the purchase of the GE Jenbacher JMC 
320 gas reciprocating engine, all ARRA funds in the project ($310,000) 
will be used in a manner consistent with the purposes of the Buy 
American provisions. In addition, another $860,000 in non-Recovery Act 
dollars will also be subject to the Buy American provisions, creating 
and

[[Page 30145]]

supporting jobs in the domestic manufacturing and construction 
industries. It is therefore in the public interest to issue a waiver of 
the Recovery Act Buy American provisions that allows this project to 
utilize Recovery Act award funds.
    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 September 17, 2010, the Secretary of Energy re-delegated 
the authority to make all inapplicability determinations to the 
Assistant Secretary for Energy Efficiency and Renewable Energy, for 
EERE Recovery Act projects.
    In light of the foregoing, and under the authority of section 
1605(b)(1) of Public Law 111-5 and the Re-delegation Order dated 
September 17, 2010, with respect to Recovery Act projects funded by 
EERE, on April 29, 2011 the Acting Assistant Secretary issued a 
``determination of inapplicability'' (a waiver under the Recovery Act 
Buy American provisions) for the purchase of a GE Jenbacher JMC 320 gas 
reciprocating engine to be used in the Golden Triangle Regional Solid 
Waste Management Authority (GTR) landfill gas to energy project, sub 
award AR060-GT11-0111-0001 from the Mississippi State Energy Office, 
EECBG Award Recipient EE0000763.

    Authority:  Public Law 111-5, section 1605.

    Issued in Washington, DC, on April 29, 2011.
Henry Kelly,
Acting Assistant Secretary for Energy Efficiency and Renewable Energy, 
U.S. Department of Energy.
[FR Doc. 2011-12721 Filed 5-23-11; 8:45 am]
BILLING CODE 6450-01-P