2010-4679. Nationwide Categorical 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 (EERE), U.S. Department of Energy (DOE).

ACTION:

Notice.

SUMMARY:

The Office of Energy Efficiency and Renewable Energy of the U.S. Department of Energy hereby provides notice that on February 11, 2010, the Assistant Secretary for EERE granted nationwide categorical waivers of the Buy American requirements of the American Recovery and Reinvestment Act of 2009, Public Law 111-5 (Recovery Act) under the authority of section 1605(b)(2) [iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality] for the purchase of LED traffic lights, arrows, and crosswalk signals (excluding the metal or plastic fixtures); fluorescent electronic lighting ballasts (with the exception of electronic dimming ballasts for fluorescent lamps that are capable of operating the lamps below 50 percent of their rated light output); and screw-base and pin-base compact fluorescent lamps (CFLs) (with the exception of plug-in CFLs longer than 10 inches). These nationwide categorical waivers apply to all projects using EERE Recovery Act funds for the construction, alteration, maintenance and repair of a public building or public work. EERE reserves the right to revisit and amend these nationwide categorical waivers based on new developments or changes in the domestic manufacturing capacity for these three technologies.

DATES:

Effective Date: February 11, 2010.

FOR FURTHER INFORMATION CONTACT:

Benjamin Goldstein, Energy Technology Program Specialist, Office of Energy Efficiency and Renewable Energy (EERE), [phone], Department of Energy, 1000 Independence Avenue, SW., Mailstop EE-2K, Washington, DC 20585.

SUPPLEMENTARY INFORMATION:

Section 1605 of the Recovery Act requires that none of the appropriated funds may 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, 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 three nationwide categorical waivers of the requirements of Section 1605(b)(2) of the Recovery Act for LED traffic lights, arrows, and crosswalk signals (excluding the metal or plastic fixtures); fluorescent electronic lighting ballasts (with the exception of electronic dimming ballasts for fluorescent lamps that are capable of operating the lamps below 50 percent of their rated light output); and screw-base and pin-base compact fluorescent lamps (CFLs) (with the exception of plug-in CFLs longer than 10 inches). The Assistant Secretary, EERE, has determined that these three categories of manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. The Assistant Secretary, EERE, reserves the right to revisit and amend these nationwide categorical waivers based on new developments or changes in the domestic manufacturing capacity for these three technologies.

The domestic nonavailability determination for these three products is based on extensive market research and a thorough investigation of the domestic manufacturing landscape. This research revealed that these three products are manufactured almost exclusively in China and Mexico.

EERE corresponded with a wide range of lighting industry stakeholders, including the National Electrical Manufacturers Association, three major lighting companies (GE, Osram Sylvania, and Phillips), the IUE-CWA labor union, and many smaller lighting manufacturers, in establishing the domestic nonavailability determinations. The specific exceptions to these categorical waivers (for electronic dimming ballasts and 10-inch and longer CFLs) are evidence of the very detailed research effort undertaken to support the formulation of these nonavailability determinations.

The nonavailability determination was also informed by the large number of inquiries and petitions that EERE received from recipients of EERE Recovery Act funds (“grantees”), suppliers, and trade associations—all stating that their individual efforts to locate domestic manufacturers had been unsuccessful.

The purpose of the Recovery Act is to stimulate economic recovery in part by funding current infrastructure construction, not to delay projects that are “shovel ready,” or otherwise valid, by requiring grantees to revise their specifications or choose a different, more costly, or less energy efficient project. The absence of a waiver of section 1605 for these three categories of manufactured goods would result in unreasonable delay for the project and would directly conflict with a fundamental economic purpose of Recovery Act, which is to create or retain jobs.

The installation of LED traffic lights, arrows, and crosswalk signals, fluorescent electronic lighting ballasts, and CFLs 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 diverse locations across the country. Hence, the installation of LED traffic lights, arrows, and crosswalk signals, fluorescent electronic lighting ballasts, and CFLs is a popular use of Recovery Act funds by EERE grantees, and any further delay in granting nationwide categorical waivers for these three technologies would unjustifiably impede the ability of these meritorious projects to move forward.

Finally, EERE is implementing a strategy that involves collaborating with multiple stakeholders in the manufacturing community to disseminate technical specifications for hard-to-find products to ascertain whether or not there are any domestic manufacturers for these products. This strategy will ensure that all future determinations of nonavailability are developed through a thorough, transparent, and expedited process. However, while this larger strategy is unfolding, it is critical to move forward with the nationwide categorical waivers for these three manufactured goods, where domestic nonavailability has been ascertained and is currently impeding the progress of numerous Recovery Act projects funded by EERE.

The specific products detailed below are excluded from the nationwide categorical waivers because some domestic manufacturing capacity does exist. If an EERE grantee believes that the excluded products are not available for its Recovery Act project in sufficient and reasonably available commercial quantities of a satisfactory quality in the timeframe required by their project, the grantee can submit a specific waiver request to EERE using the established channels and format outlined in 2 CFR 176.140(c) and 176.160(c); and summarized in guidance available on the EERE Buy American Web page: http://www1.eere.energy.gov/​recovery/​pdfs/​eere_​program_​guidance_​buy_​american.pdf.

(1) Electronic dimming ballasts for fluorescent lamps.

Electronic dimming ballasts for fluorescent lamps that are capable of operating the lamps below 50 percent of their rated light output.

(2) Plug-In CFLs longer than 10 inches.

CFLs greater than 10 inches in length have a 4-pin base and are rated from 18 to 27 watts. They are available in a range of color temperatures and are used, for example, in facilities, offices, warehouses and display cases. Lengths range from 10.5 in (266.7 mm) to 22.5 in (571.5 mm). Rated life ranges from 10,000 to 20,000 hours.

(3) Traffic light fixtures (also referred to as the “housing” or “shell”).

The nationwide categorical waiver for LED traffic lights, arrows, and crosswalk signals covers the LED lights and any adjacent wires and electronic parts necessary for the functionality of the lights themselves; but excludes the metal or plastic fixtures (also referred to as the “housing” or “shell”).

Having established a proper justification based on domestic nonavailability, EERE hereby provides notice that on February 11, 2010, three nationwide categorical waivers of section 1605 of the Recovery Act were issued for LED traffic lights, arrows, and crosswalk signals; fluorescent electronic lighting ballasts (with the exception of electronic dimming ballasts for fluorescent lamps that are capable of operating the lamps below 50 percent of their rated light output); and screw-base and pin-base compact fluorescent lamps (with the exception of plug-in CFLs longer than 10 inches). 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: February 22, 2010.

Cathy Zoi,

Assistant Secretary, Energy Efficiency and Renewable Energy.