[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Notices]
[Pages 55892-55893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23079]


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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 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 the following solar 
photo-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.

DATES: Effective Date August 2, 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: 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 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 determination replaces and supersedes the Solar Public 
Interest Waiver issued August 6, 2010, amended September 30, 2010 and 
extended February 4, 2011. Although the waiver extension issued 
February 4, 2011 was slated to be a one-time extension coinciding with 
the ramp-down of EERE Recovery Act-funded projects, EERE has determined 
that enough projects remain active to justify a new Public Interest 
waiver determination. This determination is valid until such time as 
the Assistant Secretary chooses to modify or revoke the waiver. The 
Assistant Secretary reserves the right to revisit and amend this 
determination based on new information or new developments.
    This 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.
    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 high-value and high-intellectual content 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

[[Page 55893]]

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 instances of ``substantial 
transformation'' 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. This reflects 
EERE's commitment to strengthen the entire domestic PV manufacturing 
supply chain in the United States.
    This 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 the Redelegation Order of April 25, 
2011, with respect to Recovery Act projects funded by EERE, the 
Assistant Secretary has issued an extension of the 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 domestic manufactured cells on August 1, 2011.
    The Assistant Secretary reserves the right to revisit and amend 
this determination based on new information or new developments.

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

Issued in Washington, DC.
Henry Kelly,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy, 
U.S. Department of Energy.
[FR Doc. 2011-23079 Filed 9-8-11; 8:45 am]
BILLING CODE 6450-01-P