SECTION 3. REQUEST FOR

COMMENTS

On October 5, 2022, the Treasury Department and the IRS released Notice

2022-51, 2022-43 I.R.B. 331, requesting comments on aspects of the increased credit amount provisions enacted by the IRA, including comments regarding the Statutory Elective Payment Phaseouts under §§ 45, 45Y, 48, and 48E. The Treasury Department and the IRS now request additional comments to inform the development of the forthcoming proposed regulations. In addition to general comments, the Treasury Department and the IRS request comments that address the following specific questions:

(1) For purposes of the Increased Cost Exception, what factors should be considered in defining the term “overall costs of construction”? For purposes of the Non-Availability Exception, what factors should be considered in defining the terms “sufficient and reasonably available quantities” or “satisfactory quality”?

(a) Are there existing factors or procedures under other federal programs with different statutory requirements, such as under the Federal Transit Administration’s Buy America requirements or the Build America Buy America Act, that Treasury and the IRS should consider in providing guidance on the Increased Cost Exception and the Non-Availability Exception?

(b) Are there factors or procedures under other federal programs that should not apply for the purpose of the Increased Cost Exception and the Non-Availability Exception, including for reasons related to different statutory requirements and administrative feasibility?

(c) Are there alternative approaches that could be adopted by the Secretary to allow domestic manufacturers to identify the availability of domestic steel, iron, or manufactured products that may be relevant to the Domestic Content Exceptions?

(2) What documentation or other substantiation should be required of Applicable Entities to qualify for the Increased Cost Exception?

(3) What documentation or other substantiation should be required of Applicable Entities to establish that relevant steel, iron, or manufactured products are not produced in the United States in sufficient

and reasonably available quantities or of a satisfactory quality to qualify for the Non-Availability Exception?

(4) For purposes of the Non-Availability Exception, what factors should be considered “relevant” in defining the term “relevant steel, iron, or manufactured products”?

(5) How, if at all, should both the Increased Cost Exception and Non-Availability Exception take into account that not all manufactured products must be mined, produced, or manufactured in the United States in order to meet the domestic content bonus credit requirements?

(6) What steps should be taken, if any, in implementing the Domestic Content Exceptions to reduce the burden on Applicable Entities? For example, how can the Secretary identify certain steel, iron, or manufactured products that are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality and what process and criteria could be used?

(7) How many Applicable Credit Properties are expected to be affected by the phaseout of elective payments each year but for the exceptions process, and what are relevant characteristics of such facilities, projects, or technologies (for example, size or other factors) to consider in developing an exceptions process?

(8) What solicitation processes are used by Applicable Entities with respect to qualified facilities or energy projects that have a maximum net output of 1 megawatt or greater and how might this affect their ability to source domestic products or determine these products would qualify for the Non-Availability Exception or Increased Cost Exception? Do these solicitation processes provide cost, product origin, and/or product availability information? If Applicable Entities use a request for proposal (RFP) or similar solicitation process with respect to qualified facilities or energy projects that have a maximum net output of 1 megawatt or greater:

(a) Is it common for a respondent’s proposal to specify whether the steel, iron, or manufactured products that are appli

2 For purposes of §§ 45Y(g)(12) and 48E(d)(5), the applicable percentages are the same as §§ 45 and 48 for qualified facilities or qualified investments with respect to a qualified facility or energy storage technology that begin construction in 2024 or earlier, but the applicable percentage decreases to 85 percent for construction beginning in 2025, and to 0 percent for construction beginning after 2025.

Bulletin No. 2024–2 359 January 8, 2024

cable project components are produced in the United States?

(b) What is the range of cost information provided in the proposal and is it auditable?

(c) Besides bids that are submitted in response to an RFP, could Applicable Entities provide other documentation or information to demonstrate that the applicable project components are not produced in the United States, or are not produced sufficiently or satisfactorily in the United States, or that including applicable project components produced in the United States increases costs by at least a specified percentage?

(d) Who is involved in the procurement process? Do developers or installers contracted through the RFP handle the procurement process for Applicable Entities?