Nationwide Categorical Waivers Under Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (Recovery Act), 30145-30146 [2011-12717]

Agencies

• DEPARTMENT OF ENERGY
• Office of Energy Efficiency and Renewable Energy

[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30145-30146]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12717]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy


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, U.S. 
Department of Energy (DOE).

ACTION: Notice of limited waivers.

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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)(2), 
(iron, steel, or the relevant manufactured goods are not produced in 
the United States at a reasonable cost), with respect to 300 Spanish 
Red Clay Tiles to be used on the Eagle Pass Library roof, a sub-grantee 
of the Texas State Energy Office, recipient of EECBG grant EE0000893.

DATES: Effective April 15, 2011.

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: Under the authority of Recovery Act, Public 
Law 111-5, section 1605(b)(2), and its implementing requirements at 2 
CFR 176.80(a)(2), the head of a Federal department or agency may issue 
a ``determination of inapplicability'' (a waiver of the Buy American 
provision) if the cost of domestic iron, steel, or relevant 
manufactured goods will increase the cost of the overall project by 
more than 25 percent. On September 17, 2010, the Secretary of Energy 
delegated the authority to make all inapplicability determinations to 
the Assistant Secretary for Energy Efficiency and Renewable Energy 
(EERE), for EERE projects under the Recovery Act. Pursuant to this 
delegation the Assistant Secretary, EERE, has concluded that Spanish 
Red Clay Tiles needed for the Eagle Pass Library Roofing project that 
are domestically manufactured will increase the cost of the overall 
project by more than 25 percent, and thus the 6300 Spanish Red Clay 
Tiles to be used in this project qualify for the ``unreasonable cost'' 
waiver determination.
    EERE has developed a robust process to ascertain in a systematic 
and expedient manner whether or not there is domestic manufacturing 
capacity for the items submitted for a waiver of the Recovery Act Buy 
American provision. This process involves a close collaboration with 
the United States Department of Commerce National Institute of 
Standards and Technology (NIST) Manufacturing Extension Partnership 
(MEP), in order to scour the domestic manufacturing landscape in search 
of producers before making any nonavailability or unreasonable cost 
determinations.
    The NIST MEP has 59 regional centers with substantial knowledge of, 
and connections to, the domestic manufacturing sector. MEP uses their 
regional centers to `scout' for current or potential manufacturers of 
the product(s) submitted in a waiver request. In the course of this 
interagency collaboration, MEP has been able to find exact or partial 
matches for manufactured goods that EERE grantees had been unable to 
locate. As a result, in those cases, EERE was able to work with the 
grantees to procure American-made products rather than granting a 
waiver. Upon receipt of completed waiver requests for the product in 
the current waiver, EERE reviewed the information provided and 
submitted the relevant technical information to the NIST MEP. The MEP 
then used their network of nationwide centers to scout for domestic 
manufacturers. In addition to the MEP collaboration outlined above, the 
EERE Buy American Coordinator worked with labor unions, trade 
associations and other manufacturing stakeholders to scout for domestic 
manufacturing capacity or an equivalent product for the Spanish Red 
Clay Tiles contained in this waiver. EERE also conducted significant 
amounts of independent research to supplement MEP's scouting efforts.
    As a result of EERE's efforts and MEP's scouting process, quotes 
were obtained from four (4) domestic manufacturers to produce this 
item. Those quotes are reflected in the prices cited infra, and support 
the finding that this item, if purchased domestically, will increase 
the total project cost by more than 25%. This ``unreasonable cost'' 
waiver is for Spanish Red Clay Tiles to replace a 100-year-old Spanish 
Tile roof on the Eagle Pass Library in Eagle Pass Texas (at one time 
the Eagle Pass Post-Office). The original tile was produced in the city 
of Piedras Negras, Mexico. The tile is made of clay, and is still made 
today in the same manner as it was when the library was built 100 years 
ago.
    The tile roof being installed on the Eagle Pass Library building 
will last 75 years, and be lighter in color than the current roof 
because of the deterioration and discoloration that has occurred to the 
existing roof tiles over time. Additionally, it will be installed in a 
manner to allow air to flow from eave to pinnacle, reflecting heat back 
into the atmosphere, rather than down into the building itself. Since 
the tiles are installed individually, rather than in sheets or in 
overlapping style, the natural airspace around the tiles creates 
natural ventilation that provides a thermal barrier for heat transfer 
to the roof deck. This can assist in the movement of the peak load 
demands by several hours.
    Eagle Pass Library is designated as a Recorded Texas Historic 
Landmark

[[Page 30146]]

(RHTL) (under the name Eagle Pass Post Office). RTHLs are at least 50 
years old and judged worthy of preservation for both architectural and 
historical significance. Buildings with this designation display an 
official Texas historical marker.
    It is regulated that RTHLs retain their basic historical integrity 
and property owners are required to notify the Texas Historic 
Commission (THC) at least 60 days before beginning a project that will 
affect the exterior of a RTHL. Notification includes a cover letter 
describing the scope of work, current overall photographs and close-up 
photographs of the areas requiring repair; drawings, specifications, 
and a proposal from a contractor may also be required. Staff responds 
within 30 days, either allowing work to proceed if it complies with the 
Standards for Rehabilitation or recommending other alternatives to 
consider.
    Compliance with the Texas Secretary of the Interior's Standards for 
Rehabilitation (Texas Government Code, Chapter 442, Section 
442.006(f)), requires that deteriorated or damaged historic building 
components be replaced in-kind, that is with matching materials. In the 
case of the Eagle Pass Post Office/Library, the clay tile roof is a 
character-defining feature and replacement with matching clay tile is 
the only material that complies with the Standards. As a result of 
these Standards the tile on the roof of the Eagle Pass Library must be 
replaced with like tile. This tile is available from Piedras Negras, 
Mexico for $1.31 per piece, and the project requires 6300 tiles. The 
prices quoted from domestic manufacturers who could produce the 
equivalent red clay tiles; in part because they would have to produce 
molds from scratch for the tiles, and would have to ship substantially 
greater distances; were between $18 and $24 per tile. All of the prices 
listed above are per tile and are the total cost including shipping and 
development of the mold where applicable.
    The roof replacement was bid out separately from other projects 
which include Recovery Act funds, and is the only work being done on 
this public building. Therefore, it fits the definition of a 
``project'' and the total cost of the roof replacement is equal to the 
total project cost.
    2 CFR 176.110, titled ``Evaluating proposals of foreign iron, 
steel, and/or manufactured goods'', states that if ``the award official 
receives a request for an exception based on the cost of certain 
domestic iron, steel, and/or manufactured goods being unreasonable, in 
accordance with Sec.  176.80, then the award official shall apply 
evaluation factors to the proposal to use such foreign iron, steel, 
and/or manufactured goods'' Per that section, the total evaluated cost 
= project cost estimate + (.25 x project cost estimate).
    The total cost of the project with the tiles from Piedras Negras is 
$71,040. The total evaluated cost is $71,400 + (.25 x $71,400) or 
$92,625.
    The minimum cost for the project with US tiles is $176,187, a cost 
increase of 148%. Thus, the Spanish Red Clay Tiles needed for this 
project that are domestically manufactured will increase the cost of 
the overall project by more than 25 percent.
    Having established a proper justification based on unreasonable 
cost, EERE hereby provides notice that on April 15, 2011, a project-
specific waiver of section 1605 of the Recovery Act was issued as 
detailed supra. This notice 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 Acting Assistant Secretary 
for EERE with respect to expenditures within the purview of his 
responsibility. Consequently, this waiver applies only to EERE projects 
carried out under the Recovery Act; and only to this project 
specifically, waiver requests, even for the same or similar items, will 
be handled individually, because individual factors apply to each 
project.

    Authority:  Pub. L. 111-5, section 1605.

    Issued in Washington, DC, on April 15, 2011.
Henry Kelly,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy, 
U.S. Department of Energy.
[FR Doc. 2011-12717 Filed 5-23-11; 8:45 am]
BILLING CODE 6450-01-P