Nationwide Limited Public Interest Waiver Under Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (Recovery Act), 65010-65012 [2010-26518]

Agencies

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

[Federal Register Volume 75, Number 203 (Thursday, October 21, 2010)]
[Notices]
[Pages 65010-65012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26518]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy


Nationwide 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 an 
Amended 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 the 
following solar photo-

[[Page 65011]]

voltaic (PV) equipment: (1) Domestically-manufactured modules 
containing foreign-manufactured cells, (2) foreign-manufactured 
modules, when completely comprised of domestically-manufactured cells, 
and (3) any ancillary items and equipment (including, but not limited 
to, charge controllers, combiners and disconnect boxes, breakers and 
fuses, racks, trackers, lugs, wires, cables and all otherwise 
incidental equipment with the exception of inverters and batteries) 
when utilized in a solar installation involving a U.S. manufactured PV 
module, or a module manufactured abroad but comprised exclusively of 
domestically-manufactured cells. This waiver expires February 6, 2011 
(six months from the date of the original waiver issuance). Recipients 
of EERE Recovery Act funds who have taken substantial steps to commit 
funds for the purchase of the items covered in this waiver by February 
6, 2011 will not be impacted by the expiration of this waiver.
    This amended determination clarifies and supersedes the solar 
public interest waiver issued on August 6, 2010. Specifically, this 
amended public interest determination clarifies that thin-film and 
flexible PV installations are also subject to the terms of this waiver.

DATES: Effective Date: September 30, 2010.

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, buyamerican@ee.doe.gov, Department of Energy, 1000 Independence 
Avenue, SW., Mailstop EE-2K, Washington, DC 20585.

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 November 10, 2009, 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 Assistant Secretary has determined 
that application of section 1605 restrictions would be inconsistent 
with the public interest for incidental and/or ancillary solar 
Photovoltaic (PV) equipment, when this equipment is utilized in solar 
installations containing domestically manufactured PV cells or modules 
(panels).
    This amended determination clarifies and supersedes the solar 
public interest waiver issued on August 6, 2010. Specifically, this 
amended public interest determination clarifies that thin-film and 
flexible PV installations are also subject to the terms of this waiver.
    This amended public interest determination waives the Buy American 
requirements in EERE-funded Recovery Act projects for the purchase of 
the following solar PV equipment: (1) Domestically-manufactured modules 
containing foreign-manufactured cells, (2) foreign-manufactured 
modules, when completely comprised of domestically-manufactured cells, 
and (3) any ancillary items and equipment (including, but not limited 
to, charge controllers, combiners and disconnect boxes, breakers and 
fuses, racks, trackers, lugs, wires, cables and all otherwise 
incidental equipment with the exception of inverters and batteries) 
when utilized in a solar installation involving a U.S. manufactured PV 
module, or a module manufactured abroad but comprised exclusively of 
domestically-manufactured cells. This waiver expires February 6, 2011 
(six months from the date of the original waiver issuance). Recipients 
of EERE Recovery Act funds who have taken substantial steps to commit 
funds for the purchase of the items covered in this waiver by February 
6, 2011 will not be impacted by the expiration of this waiver.
    Definitions--Solar cells are the basic building block of PV 
technologies. The cells are functional semiconductors, made by 
processing and treating crystalline silicon or other photo-sensitive 
materials to create a layered product that generates electricity by 
absorbing light photons. The individual cells are cut and/or assembled 
into larger groups known as panels or modules. These two terms are 
synonymous and used interchangeably in this memorandum. The panel is 
the end product, and consists of a series of solar cells, a backing 
surface, and a covering to protect the cells from weather and other 
types of damage. A solar array is created by installing multiple 
modules in the same location to increase the electrical generating 
capacity. Operational solar PV modules and arrays use cells to capture 
and transfer solar-generated electricity. The solar modules and cells 
represent the highest intellectual content and dollar-value items 
associated with solar PV energy generation.
    The Buy American provisions contain no requirement with regard to 
the origin of components or subcomponents in manufactured goods used in 
a project, as long as the manufacturing occurs in the United States [(2 
CFR 176.70(a)(2)(ii)]. However, determining where final manufacturing 
occurs in the context of the solar production chain is complicated. 
Under a plain reading of the Recovery Act Buy American provisions, only 
the PV modules would need to be manufactured in the United States, but 
the source of the component parts--including the high-value cells--
would not be relevant to complying with the Buy American requirements.
    EERE and the National Renewable Energy Laboratory have conducted 
extensive research into the nature of the domestic solar manufacturing 
industry to determine the best way to apply the Buy American 
requirements to solar PV projects. EERE considered three basic options: 
(1) Follow the current interpretation of the Buy American provisions 
and require that only the modules be produced in the United States, 
irrespective of the origin of the cells contained in the modules; (2) 
apply the interpretation that the modules and cells are distinct 
manufactured goods and thus both must be produced in the United States; 
and (3) choose a more inclusive approach that allows a solar 
installation to comply if either the cells or the modules are 
manufactured in the United States.
    Of the options considered, only option (3) recognizes EERE's 
determination that the manufacturing process for cells and the final PV 
module production represent distinct and significant stages in the 
solar PV manufacturing chain. Conducting either of these discrete 
activities in the United States creates roughly equal numbers of 
American jobs. Furthermore, the design and manufacture of the cells 
captures the largest portion of the intellectual property present in a 
solar installation.
    For all the reasons outlined above, EERE believes the public 
interest is best served by supporting the domestic cell manufacturing 
industry. It is therefore in the public interest to issue a waiver of 
the Recovery Act Buy American provisions that allows grantees to 
purchase foreign modules made with domestically-manufactured cells, in 
addition to domestic modules with foreign-produced cells.
    Because EERE believes strongly in strengthening the domestic PV 
manufacturing supply chain in the United States, EERE is limiting the 
duration of this waiver to six months from the date it was originally 
issued, with the expectation that there will be

[[Page 65012]]

an increase in the number of companies that produce solar PV modules in 
the United States containing domestically-manufactured cells.
    This amended public interest waiver determination also resolves 
questions regarding the applicability of the Buy American provisions to 
numerous individual manufactured goods that are incidental in cost and 
technological significance but are ultimately incorporated into the 
final solar installation. These items, including, but not limited to, 
charge controllers, combiners and disconnect boxes, breakers and fuses, 
racks, trackers, lugs, wires, and cables--but excluding inverters and 
batteries--are generally low-cost incidental items that are 
incorporated into the installation of PV modules and arrays on public 
buildings and public works. This public interest waiver for all 
incidental and ancillary items eliminates potential questions and 
ambiguities concerning whether the incidental items are final 
manufactured goods or merely components of a larger solar module, 
installation or array.
    Issuance of this nationwide public interest waiver recognizes 
EERE's commitment to expeditious costing of Recovery Act dollars by 
enabling recipients to easily ascertain whether a given solar 
installation complies with the Buy American provision. Simultaneously, 
this waiver advances the purpose and the principles of the Buy American 
provision by focusing on the highest-value and most labor-intensive 
pieces of solar PV equipment.
    In light of the foregoing, and under the authority of section 
1605(b)(1) of Public Law 111-5 and Redelegation Order 00-002-01C, dated 
November 10, 2009, with respect to Recovery Act projects funded by 
EERE, the Assistant Secretary hereby issues an amended ``determination 
of inapplicability'' (a waiver under the Recovery Act Buy American 
provisions) for the following items: (1) Domestically-manufactured 
modules containing foreign-manufactured cells, (2) foreign-manufactured 
modules, when completely comprised of domestically-manufactured cells, 
and (3) any ancillary items and equipment (including, but not limited 
to, charge controllers, combiners and disconnect boxes, breakers and 
fuses, racks, trackers, lugs, wires, cables and all otherwise 
incidental equipment with the exception of inverters and batteries) 
when utilized in a solar installation involving a U.S. manufactured PV 
module, or a module manufactured abroad but comprised exclusively of 
domestically-manufactured cells. This waiver expires February 6, 2011 
(six months from the date of the original waiver issuance). Recipients 
of EERE Recovery Act funds who have taken substantial steps to commit 
funds for the purchase of the items covered in this waiver by February 
6, 2011 will not be impacted by the expiration of this waiver. 
Furthermore, 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 in Washington, DC, on September 30, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy, U.S. 
Department of Energy.
[FR Doc. 2010-26518 Filed 10-20-10; 8:45 am]
BILLING CODE 6450-01-P