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[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Notices]
[Pages 9766-9767]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3849]

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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 extension of limited waiver.

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SUMMARY: The U.S. Department of Energy (DOE) is hereby granting a six-
month extension of the 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-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 
until August 6, 2011. This waiver expires August 6, 2011 (six months 
from the date of expiration of the original waiver). 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 August 6, 2011 will 
not be impacted by the expiration of this waiver.

DATES: Effective Date February 4, 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, 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 September 17, 2010, the Secretary of Energy re-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 extension of the amended public interest determination extends 
the amended waiver of 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 August 6, 2011 (six months from the date of 
expiration of the original waiver). 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 August 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 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) To follow a plain reading 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) 
determine 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) recognized EERE's 
determination that the manufacture of PV cells and modules represent 
distinct instances of ``substantial transformation'' along the solar PV 
manufacturing chain, and that the public interest is best

[[Page 9767]]

served by allowing either instance of substantial transformation to 
qualify the final solar installation or array as compliant with the Buy 
American provisions.
    Conducting either of these discrete activities (production of the 
cells or the modules) in the United States creates roughly equal 
numbers of American jobs, and aligns squarely with purpose and the 
principles the Recovery Act Buy American provision by focusing on the 
highest[hyphen]value and most labor[hyphen]intensive processes along 
the solar PV manufacturing chain.
    The extension of the Solar Public Interest Waiver also demonstrates 
EERE's commitment to the continued swift expenditure of Recovery Act 
funds, by permitting grantees to utilize a diverse range of existing 
American[hyphen]manufactured solar technologies. This is a one-time 
extension encouraging grantees to complete their projects in an 
expedient manner; strengthening local clean energy infrastructure while 
leveraging Recovery Act dollars to support U.S. jobs along the solar 
manufacturing supply chain and in high[hyphen]skill solar installation 
activities.
    For all the reasons outlined above, the Assistant Secretary of EERE 
has determined it is in the public interest to issue a one[hyphen]time 
extension of the Solar Public Interest Waiver of the Recovery Act Buy 
American provisions, permitting EERE Recovery Act grantees to utilize 
solar PV installations where either the cell or the module is 
manufactured in the United States.
    In addition, this extended public interest determination waives the 
Buy American requirements for all ancillary items that are incidental 
in cost and technological significance, thus eliminating ambiguities 
concerning whether the incidental items are final manufactured goods or 
merely components of a larger solar module, installation or array. 
These items include, but are not limited to, charge controllers, 
combiners and disconnect boxes, breakers and fuses, racks, trackers, 
lugs, wires, and cables. Inverters and batteries remain subject to the 
Buy American provisions. This helps support the solar installation 
industry, because it removes the burden from businesses--especially 
small businesses--of verifying the origin of each of the many minor 
components of a solar installation or array. This also benefits 
grantees, businesses, American taxpayers and the Department of Energy 
by encouraging more competitive bids on solar projects.
    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, dated 
September 17, 2010, with respect to Recovery Act projects funded by 
EERE, the Assistant Secretary on February 4, 2011 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 domestically-manufactured cells 
until August 6, 2011.
    This waiver expires August 6, 2011 (six months from the date of 
expiration of the original waiver). 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 August 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:  Pub. L. 111-5, section 1605.

    Issued in Washington, DC, on February 4, 2011.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy, U.S. 
Department of Energy.
[FR Doc. 2011-3849 Filed 2-18-11; 8:45 am]
BILLING CODE 6450-01-P
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