The Department of Energy has issued a proposed nonavailability waiver applicable to domestically assembled solar PV panels under the Build America Buy American provisions of the Infrastructure Investment and Jobs Act.
The waiver would be in effect until December 31, 2025. The waiver applies to solar modules with final assembly in the U.S.
In addition, the Environmental Protection Agency and the Department of Agriculture released similar proposed waivers (found here and here).
APPA noted that the rules could be withdrawn by the incoming administration.
In its announcement, USDA said it had conducted market research and found that “BABA-compliant solar modules are not produced in the United States in sufficient and reasonably available quantities for use in USDA assisted solar projects and will not become available in sufficient and reasonably available quantities until December 2025 or later.”
This will be of help to public power utilities making use of grants and loan guarantees administered by DOE, EPA, and USDA that are subject to BABA.
APPA believes it could also be of use to public power utilities seeking to make use of the domestic content statutory exception attestation safe harbor for elective payment for solar PV projects.
While the waivers do not directly apply for purposes of elective payment, they could be cited when making a “good faith determination” that solar PV modules are not available in sufficient quantity or quality.
Further, because solar modules are such a large part of manufactured project costs (as defined under IRS Notice 2024-41), a public power utility might also make a good faith determination that the waiver would also qualify the project for having met the overall domestic content requirements for manufactured products.
The domestic content requirement for structural steel and iron would still have to be met, if a waiver for those items was not also appropriate.
