[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Notices]
[Pages 4030-4031]
From the Federal Register Online via the Government Publishing 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, 
[email protected], 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