[Federal Register Volume 75, Number 203 (Thursday, October 21, 2010)]
[Notices]
[Pages 65010-65012]
From the Federal Register Online via the Government Publishing 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, [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 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
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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]
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