78858 Federal Register / Vol. 76, No. 244 / Tuesday, December 20, 2011 / Rules and Regulations 

SUBSTITUTES THAT ARE ACCEPTABLE SUBJECT TO USE CONDITIONS—Continued 

End-use Substitute Decision Use conditions Further information 

The refrigerator or freezer must have red, 

Pantone® Matching System (PMS) #185 

marked pipes, hoses, and other devices 

through which the refrigerant is serviced, 

typically known as the service port, to indicate the use of a flammable refrigerant. 

This color must be present at all service 

ports and where service puncturing or otherwise creating an opening from the refrigerant circuit to the atmosphere might 

be expected (e.g., process tubes). The 

color mark must extend at least 2.5 centimeters (1 inch) from the compressor and 

must be replaced if removed. 

Note: In accordance with the limitations provided in section 310(a) of the Clean Air Act (42 U.S.C. 7610(a)), nothing in this table shall affect the Occupational Safety and Health Administrations’ authority to promulgate and enforce standards and other requirements under the Occupational Safety and Health Act of 1970 (29 

U.S.C. 651 et seq.). 

Note: The use conditions in this appendix contain references to certain standards from Underwriters Laboratories Inc. (UL). The standards are incorporated by reference, and the referenced sections are made part of the regulations in part 82: 

1. UL 250: Household Refrigerators and Freezers. 10th edition. Supplement SA: Requirements for Refrigerators and Freezers Employing a Flammable Refrigerant 

in the Refrigerating System. Underwriters Laboratories, Inc. August 25, 2000. 

2. UL 471. Commercial Refrigerators and Freezers. 10th edition. Supplement SB: Requirements for Refrigerators and Freezers Employing a Flammable Refrigerant 

in the Refrigerating System. Underwriters Laboratories, Inc. November 24, 2010. 

The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of UL Standards 250 

and 471 may be purchased by mail at: COMM 2000; 151 Eastern Avenue, Bensenville, IL 60106; Email: orders@comm-2000.com; Telephone: 1 (888) 853–3503 in 

the U.S. or Canada (other countries dial +1 (415) 352–2168); Internet address: http://ulstandardsinfonet.ul.com/ or www.comm-2000.com. 

You may inspect a copy at U.S. EPA’s Air and Radiation Docket; EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington DC or at the National 

Archives and Records Administration (NARA). For questions regarding access to these standards, the telephone number of EPA’s Air and Radiation Docket is (202) 

566–1742. For information on the availability of this material at NARA, call (202) 741–6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. 

[FR Doc. 2011–32175 Filed 12–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 225, and 252 

RIN 0750–AH43 

Defense Federal Acquisition 

Regulation Supplement; Utilization of 

Domestic Photovoltaic Devices 

(DFARS Case 2011–D046) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

to implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2011. The section provides that 

photovoltaic devices to be utilized in 

performance of any covered contract 

shall comply with the Buy American 

statute, subject to the exceptions 

provided in the Trade Agreements Act 

of 1979 or otherwise provided by law. 

DATES: Effective date: December 20, 

2011. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before February 21, 2012, to be 

considered in the formation of the final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2011–D046, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inserting 

‘‘DFARS Case 2011–D046’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2011–D046.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2011–D046’’ on your 

attached document. 

Æ Email: dfars@osd.mil. Include 

DFARS Case 2011–D046 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Amy G. 

Williams, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: 

Amy G. Williams, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP/DARS, Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–0328; 

facsimile 703–602–0350.’’ 

SUPPLEMENTARY INFORMATION: 

I. Background 

In order to implement section 846 of 

the National Defense Authorization Act 

for Fiscal Year 2011 (Pub. L. 111–383), 

this interim rule amends DFARS 

subpart 225.70 by adding a new section 

225.7017, Utilization of domestic 

photovoltaic devices, as well as an 

associated provision and clause in 

DFARS part 252 and conforming 

changes to DFARS part 212. 

Photovoltaic devices produce direct 

current electricity from sunlight, which 

can be used to provide power to things 

such as DoD-owned facilities or private 

housing. 

As specified in section 846, a 

‘‘covered contract’’ is defined in this 

interim rule as an energy savings 

performance contract, a utility service 

contract, or a private housing contract, 

if such contract will result in DoD 

ownership of photovoltaic devices, by 

means other than DoD purchase as end 

products. DoD is deemed to own a 

photovoltaic device if the device is— 

(1) Installed on DoD property or in a 

facility owned by DoD; and 

(2) Reserved for the exclusive use of 

DoD for the full economic life of the 

device. 

Prior to this definition, ownership 

would have required transfer of title for 

the equipment to the Government. 

Under section 846, exclusive use of the 


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power for the full economic life of the 

equipment equates to ownership and 

would then require compliance with 41 

U.S.C. chapter 83, Buy American, unless 

DoD does not have exclusive rights to 

the power generated from the device 

(could be under any of the scenarios 

identified in (1) or (2) above) or the 

contract term is less than the full 

economic life of the photovoltaic 

device. 

Land leases are not included in the 

DFARS definition of ‘‘covered contract,’’ 

because the DFARS does not cover land 

leases. Contracts that include purchase 

of photovoltaic devices as end products 

are covered under the standard DFARS 

Buy American—trade agreements 

provisions and clauses. 

Photovoltaic devices provided under 

any covered contract shall comply with 

the Buy American statute, subject to the 

exceptions to that statute provided in 

the Trade Agreements Act of 1979 (19 

U.S.C. 2501 et seq.) or otherwise 

provided by law. 

Exceptions are provided for qualifying 

country photovoltaic devices, Free 

Trade Agreement or designated country 

photovoltaic devices (depending on the 

estimated value of the photovoltaic 

devices), and other foreign photovoltaic 

devices, if covered by the Buy American 

statute and the cost of a domestic 

photovoltaic device would be 

unreasonable (i.e., 50 percent more than 

the cost of the foreign photovoltaic 

device). 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

III. Determination of Applicability 

DoD has not made a determination to 

apply the requirement of section 846 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2011 to 

contracts at or below the simplified 

acquisition threshold (SAT), but has 

determined to apply the rule to 

contracts for the acquisition of 

commercial items. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold 

41 U.S.C. 1905 governs the 

applicability of laws to contracts or 

subcontracts in amounts not greater 

than the simplified acquisition 

threshold. It is intended to limit the 

applicability of laws to such contracts or 

subcontracts. 41 U.S.C. 1905 provides 

that if a provision of law contains 

criminal or civil penalties, or if the FAR 

Council makes a written determination 

that it is not in the best interest of the 

Federal Government to exempt contracts 

or subcontracts at or below the SAT, the 

law will apply to them. DoD has not 

made that determination. Therefore, this 

rule does not apply below the simplified 

acquisition threshold. 

B. Applicability to Contracts for the 

Acquisition of Commercial Items 

41 U.S.C. 1906 governs the 

applicability of laws to contracts for the 

acquisition of commercial items, and is 

intended to limit the applicability of 

laws to contracts for the acquisition of 

commercial items. 41 U.S.C. 1906 

provides that if a provision of law 

contains criminal or civil penalties, or if 

DoD makes a written determination that 

it is not in the best interest of the 

Federal Government to exempt 

commercial item contracts, the 

provision of law will apply to contracts 

for the acquisition of commercial items. 

Therefore, given that the requirements 

of section 846 of the NDAA for FY 2011 

were enacted to promote utilization of 

domestic photovoltaic devices, DoD has 

determined that it is in the best interest 

of the Federal Government to apply the 

rule to contracts for the acquisition of 

commercial items, as defined at FAR 

2.101. An exception for contracts for the 

acquisition of commercial items would 

exclude a significant portion of 

contracts intended to be covered by the 

law, thereby undermining the 

overarching public policy purpose of 

the law. 

IV. Regulatory Flexibility Act 

DoD expects that this interim rule 

may have a significant economic impact 

on a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

Therefore, an initial regulatory 

flexibility analysis has been prepared 

and is summarized as follows: 

This interim rule implements section 

846 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383), by providing 

regulatory coverage on utilization of 

domestic photovoltaic devices under 

certain covered contracts. 

The objective of the rule is to promote 

utilization of domestic photovoltaic 

devices under an energy savings 

contract, a utility service contract, or a 

private housing contract, if such 

contract does not include DoD purchase 

of photovoltaic devices as end products, 

but will nevertheless result in DoD 

ownership of photovoltaic devices. 

According to the statute, DoD is deemed 

to own a photovoltaic device if the 

device is— 

(1) Installed on DoD property or in a 

facility owned by DoD; and 

(2) Reserved for the exclusive use of 

DoD for the full economic life of the 

device. 

The legal basis for the rule is section 

846 of the National Defense 

Authorization Act for Fiscal Year 2011. 

This rule generally applies to other 

than small entities. When purchasing 

renewable power generated via on-site 

photovoltaic devices, DoD can either 

purchase the photovoltaic devices and 

thereby own, operate, and maintain the 

devices for their full economic life 

(already covered in DFARS part 225) or 

can do variations of the following: 

a. Enter into an energy savings 

performance contract, which is a 

contracting method in which the 

contractor provides capital to facilitate 

energy savings projects and maintains 

them in exchange for a portion of the 

energy savings generated. Under this 

arrangement, the Government would 

take title to the devices during contract 

performance or at the conclusion of the 

contract. For example, the Defense 

Logistics Agency-Energy uses the master 

Department of Energy indefinite 

delivery-indefinite quantity contract 

and awards task orders off that contract. 

Of the 16 contractors, all are large 

businesses. There are subcontracting 

goals that each contractor has to meet, 

but the ultimate task order award is 

made to a large business. 

b. Enter into a power purchase 

agreement, also referred to as a utility 

service contract, for the purchase of the 

power output of photovoltaic devices 

that are installed on DoD land or 

buildings, but owned, operated, and 

maintained by the contractor. At the 

conclusion of the contract, DoD would 

either require the contractor to 

dismantle and remove the photovoltaic 

equipment, abandon the equipment in 

place, or would re-compete the 

requirement and if the incumbent 

contractor is the successful offeror, the 

follow-on contract would allow for 

continued power purchase from the 

existing devices. If the incumbent 

contractor is not the successful offeror, 


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the contractor would be required to 

dismantle and remove the devices. 

Prime contractors for this type of 

contract would generally be large 

businesses, based on the capital costs 

involved in these projects. However, 

many developers tend to subcontract 

out the majority of work to smaller 

companies. 

We do not currently have data 

available on whether any of the 

manufacturers of photovoltaic devices 

are small entities. This rule will 

promote utilization of domestic 

photovoltaic devices, even when the 

Government does not take title to the 

devices. 

The requirements of the rule will not 

apply below the simplified acquisition 

threshold. 

Since the prime contractors subject to 

this rule are large businesses, the 

reporting requirements will not impact 

small entities. Since the photovoltaic 

devices are commercially available offthe-shelf items, there will be no 

requirement to track to the origin of the 

components, but just to inform the 

prime contractor of the place of 

manufacture. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

DoD did not identify any significant 

alternatives that would accomplish the 

objectives of the statute. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2011–D046), in 

correspondence. 

V. Paperwork Reduction Act 

The rule imposes an information 

collection requirement that requires the 

approval of the Office of Management 

and Budget under 44 U.S.C. chapter 35. 

However, the new DFARS provision at 

252.225–7018, Photovoltaic Devices— 

Certificate, does not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Number 

0704–0229, entitled ‘‘Defense Federal 

Acquisition Regulation Supplement Part 

225, Foreign Acquisition, and related 

clauses,’’ currently approved through 

November 30, 2013, in the amount of 

147,944 hours. The proposed provision 

is a variant of the Buy American-trade 

agreements provisions that are already 

cleared. 

VI. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of 

Defense, that urgent and compelling 

reasons exist to publish an interim rule 

prior to affording the public an 

opportunity to comment. This interim 

rule implements section 846 of the 

National Defense Authorization Act for 

Fiscal Year 2011. This requirement 

became effective upon enactment, 

January 7, 2011. This action is necessary 

in order to enable contracting officers to 

prevent violations of the AntiDeficiency Act by inadvertent award of 

a covered contract that does not contain 

the appropriate restrictions with regard 

to country of origin of photovoltaic 

devices to be utilized in performance of 

the contract. Failure to implement this 

requirement promptly can also have 

adverse effects on the U.S. photovoltaic 

industry, which this statute was 

designed to protect. However, pursuant 

to 41 U.S.C. 1707 and FAR 1.501–3(b), 

DoD will consider public comments 

received in response to this interim rule 

in the formation of the final rule. 

List of Subjects in 48 CFR Parts 212, 

225, and 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 212, 225, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 225, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Amend section 212.301 in 

paragraph by redesignating paragraphs 

(f)(iv)(F) through (L) as paragraphs 

(f)(iv)(G) through (M), and adding new 

paragraph (f)(iv)(F) to read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(iv) * * * 

(F) Use the provision at 252.225– 

7018, Photovoltaic Devices—Certificate, 

as prescribed in 225.7017–4(b). 

* * * * * 

PART 225—FOREIGN ACQUISITION 

■ 3. Add sections 225.7017 through 

225.7017–4 to subpart 225.70 to read as 

follows: 

Subpart 225.70—Authorization Acts, 

Appropriations Acts, and Other 

Statutory Restrictions on Foreign 

Acquisition 

Sec. 

* * * * * 

225.7017 Utilization of domestic 

photovoltaic devices. 

225.7017–1 Definitions. 

225.7017–2 Restriction. 

225.7017–3 Exceptions. 

225.7017–4 Solicitation provisions and 

contract clauses. 

225.7017 Utilization of domestic 

photovoltaic devices. 

225.7017–1 Definitions. 

As used in this section— 

Covered contract means an energy 

savings performance contract, a utility 

service contract, or a private housing 

contract awarded by DoD, if such 

contract results in DoD ownership of 

photovoltaic devices, by means other 

than DoD purchase as end products. 

DoD is deemed to own a photovoltaic 

device if the device is— 

(1) Installed on DoD property or in a 

facility owned by DoD; and 

(2) Reserved for the exclusive use of 

DoD for the full economic life of the 

device. 

Designated country photovoltaic 

device, domestic photovoltaic device, 

foreign photovoltaic device, Free Trade 

Agreement country photovoltaic device, 

photovoltaic device, qualifying country 

photovoltaic device, and U.S.-made 

photovoltaic device are defined in the 

clause at 252.225–7017, Photovoltaic 

Devices. 

225.7017–2 Restriction. 

In accordance with section 846 of the 

National Defense Authorization Act for 

Fiscal Year 2011, photovoltaic devices 

provided under any covered contract 

shall comply with 41 U.S.C. chapter 83, 

Buy American, subject to the exceptions 

to that statute provided in the Trade 

Agreements Act of 1979 (19 U.S.C. 2501 

et seq.) or otherwise provided by law. 

225.7017–3 Exceptions. 

DoD requires the contractor to utilize 

domestic photovoltaic devices in 

covered contracts, with the following 

exceptions: 

(a) Qualifying country. Qualifying 

country photovoltaic devices may be 

utilized in any covered contract, 

because 225.103(a)(i)(A) provides an 

exception to the Buy American Act for 

products of qualifying countries, as 

defined in 225.003. 

(b) Buy American–unreasonable cost. 

For a covered contract that utilizes 

photovoltaic devices valued at less than 

$203,000, the exception for 


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unreasonable cost may apply (see FAR 

25.103(c)). If the cost of a foreign 

photovoltaic device plus 50 percent is 

less than the cost of a domestic 

photovoltaic device, then the foreign 

photovoltaic device may be utilized. 

(c) Trade agreements. (1) Free Trade 

Agreements. For a covered contract that 

utilizes photovoltaic devices valued at 

$25,000 or more, photovoltaic devices 

may be utilized from a country covered 

under the acquisition by a Free Trade 

Agreement, depending upon dollar 

threshold (see FAR 25.4). 

(2) World Trade Organization— 

Government Procurement Agreement. 

For covered contracts that utilize 

photovoltaic devices that are valued at 

$203,000 or more, only U.S.-made 

photovoltaic devices, designated 

country photovoltaic devices, or 

qualifying country photovoltaic devices 

may be utilized. 

225.7017–4 Solicitation provisions and 

contract clauses. 

(a)(1) Use the clause at 252.225–7017, 

Photovoltaic Devices, in solicitations for 

a contract that— 

(i) Is expected to exceed the 

simplified acquisition threshold; and 

(ii) May be a covered contract, i.e., an 

energy savings performance contract, a 

utility service contract, or a private 

housing contract awarded by DoD, if 

such contract results in DoD ownership 

of photovoltaic devices, by means other 

than DoD purchase as end products. 

(2) Use the clause in the resultant 

contract if it is a covered contract (i.e., 

will result in DoD ownership of 

photovoltaic devices, by means other 

than DoD purchase as end products). 

(b) Use the provision at 252.225–7018, 

Photovoltaic Devices—Certificate, in 

solicitations containing the clause at 

252.225–7017. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Amend section 252.212–7001 by 

redesignating paragraphs (b)(12) through 

(30) as paragraphs (b)(13) through (31), 

and adding new paragraph (b)(12) to 

read as follows: 

252.212–7001 Contract Terms and 

Conditions Required to Implement Statutes 

or Executive Orders Applicable to Defense 

Acquisitions of Commercial Items. 

* * * * * 

(b) * * * 

(12) ___252.225–7017, Photovoltaic 

Devices (DEC 2011) (Section 846 of Pub. 

L. 111–383). 

* * * * * 

■ 5. Add sections 252.225–7017 and 

252.225–7018 to read as follows: 

252.225–7017 Photovoltaic Devices. 

As prescribed in 225.7017–4(a), use 

the following clause: 

Photovoltaic Devices (DEC 2011) 

(a) Definitions. As used in this clause— 

Bahrainian photovoltaic device means an 

article that— 

(i) Is wholly manufactured in Bahrain; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in Bahrain into a new and different article of 

commerce with a name, character, or use 

distinct from that of the article or articles 

from which it was transformed. 

Canadian photovoltaic device means an 

article that has been substantially 

transformed in Canada into a new and 

different article of commerce with a name, 

character, or use distinct from that of the 

article or articles from which it was 

transformed. 

Caribbean Basin country photovoltaic 

device means an article that— 

(i) Is wholly manufactured in a Caribbean 

Basin country; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in a Caribbean Basin country into a new and 

different article of commerce with a name, 

character, or use distinct from that of the 

article or articles from which it was 

transformed. 

Designated country means— 

(i) A World Trade Organization 

Government Procurement Agreement (WTO 

GPA) country (Aruba, Austria, Belgium, 

Bulgaria, Canada, Cyprus, Czech Republic, 

Denmark, Estonia, Finland, France, Germany, 

Greece, Hong Kong, Hungary, Iceland, 

Ireland, Israel, Italy, Japan, Korea (Republic 

of), Latvia, Liechtenstein, Lithuania, 

Luxembourg, Malta, Netherlands, Norway, 

Poland, Portugal, Romania, Singapore, 

Slovak Republic, Slovenia, Spain, Sweden, 

Switzerland, Taiwan (known in the World 

Trade Organization as ‘‘the Separate Customs 

Territory of Taiwan, Penghu, Kinmen, and 

Matsu’’ (Chinese Taipei)), or the United 

Kingdom); 

(ii) A Free Trade Agreement country 

(Australia, Bahrain, Canada, Chile, Costa 

Rica, Dominican Republic, El Salvador, 

Guatemala, Honduras, Mexico, Morocco, 

Nicaragua, Peru, or Singapore); 

(iii) A least developed country 

(Afghanistan, Angola, Bangladesh, Benin, 

Bhutan, Burkina Faso, Burundi, Cambodia, 

Central African Republic, Chad, Comoros, 

Democratic Republic of Congo, Djibouti, East 

Timor, Equatorial Guinea, Eritrea, Ethiopia, 

Gambia, Guinea, Guinea-Bissau, Haiti, 

Kiribati, Laos, Lesotho, Liberia, Madagascar, 

Malawi, Maldives, Mali, Mauritania, 

Mozambique, Nepal, Niger, Rwanda, Samoa, 

Sao Tome and Principe, Senegal, Sierra 

Leone, Solomon Islands, Somalia, Tanzania, 

Togo, Tuvalu, Uganda, Vanuatu, Yemen, or 

Zambia); or 

(iv) A Caribbean Basin country (Antigua 

and Barbuda, Aruba, Bahamas, Barbados, 

Belize, Bonaire, British Virgin Islands, 

Curacao, Dominica, Grenada, Guyana, Haiti, 

Jamaica, Montserrat, Saba, St. Kitts and 

Nevis, St. Lucia, St. Vincent and the 

Grenadines, Sint Eustatius, Sint Maarten, or 

Trinidad and Tobago). 

Designated country photovoltaic device 

means a WTO GPA country photovoltaic 

device, a Free Trade Agreement country 

photovoltaic device, a least developed 

country photovoltaic device, or a Caribbean 

Basin country photovoltaic device. 

Domestic photovoltaic device means a 

photovoltaic device manufactured in the 

United States. 

Foreign photovoltaic device means a 

photovoltaic device other than a domestic 

photovoltaic device. 

Free Trade Agreement country means 

Australia, Bahrain, Canada, Chile, Costa Rica, 

Dominican Republic, El Salvador, Guatemala, 

Honduras, Mexico, Morocco, Nicaragua, 

Peru, or Singapore. 

Free Trade Agreement country 

photovoltaic device means an article that— 

(i) Is wholly manufactured in a Free Trade 

Agreement country; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in a Free Trade Agreement country into a 

new and different article of commerce with 

a name, character, or use distinct from that 

of the article or articles from which it was 

transformed. 

Least developed country photovoltaic 

device means an article that— 

(i) Is wholly manufactured in a least 

developed country; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in a least developed country into a new and 

different article of commerce with a name, 

character, or use distinct from that of the 

article or articles from which it was 

transformed. 

Moroccan photovoltaic device means an 

article that— 

(i) Is wholly manufactured in Morocco; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in Morocco into a new and different article 

of commerce with a name, character, or use 

distinct from that of the article or articles 

from which it was transformed. 

Peruvian photovoltaic device means an 

article that— 

(i) Is wholly manufactured in Peru; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in Peru into a new and different article of 

commerce with a name, character, or use 

distinct from that of the article or articles 

from which it was transformed. 

Photovoltaic device means a device that 

converts light directly into electricity through 

a solid-state, semiconductor process. 

Qualifying country means any country 

listed in the definition of ‘‘qualifying 

country’’ at 225.003 of the Defense Federal 

Acquisition Regulation Supplement 

(DFARS). 

Qualifying country photovoltaic device 

means a photovoltaic device manufactured in 

a qualifying country. 

United States means the 50 States, the 

District of Columbia, and outlying areas. 


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78862 Federal Register / Vol. 76, No. 244 / Tuesday, December 20, 2011 / Rules and Regulations 

U.S.-made photovoltaic device means a 

photovoltaic device that— 

(i) Is manufactured in the United States; or 

(ii) Is substantially transformed in the 

United States into a new and different article 

of commerce with a name, character, or use 

distinct from that of the article or articles 

from which it was transformed. 

WTO GPA country photovoltaic device 

means an article that— 

(i) Is wholly manufactured in a WTO GPA 

country; or 

(ii) In the case of an article that consists in 

whole or in part of materials from another 

country, has been substantially transformed 

in a WTO GPA country into a new and 

different article of commerce with a name, 

character, or use distinct from that of the 

article or articles from which it was 

transformed. 

(b) This clause implements section 846 of 

the National Defense Authorization Act for 

Fiscal Year 2011 (Pub. L. 111–383). 

(c) Restriction. If the Contractor specified 

in its offer in the Photovoltaic Devices— 

Certificate provision of the solicitation that 

the estimated value of the photovoltaic 

devices to be utilized in performance of this 

contract would be— 

(1) More than $3,000 but less than $25,000, 

then the Contractor shall utilize only 

domestic or qualifying country photovoltaic 

devices unless, in its offer, it specified 

utilization of other foreign photovoltaic 

devices in paragraph (c)(2)(ii) of the 

Photovoltaic Devices—Certificate provision 

of the solicitation; 

(2) $25,000 or more but less than $70,079, 

then the Contractor shall utilize in the 

performance of this contract only domestic or 

qualifying country photovoltaic devices 

unless, in its offer, it specified utilization of 

Canadian or other foreign photovoltaic 

devices in paragraph (c)(3)(ii) of the 

Photovoltaic Devices—Certificate provision 

of the solicitation. If the Contractor certified 

in its offer that it will utilize a qualifying 

country photovoltaic device or a Canadian 

photovoltaic device, the Contractor shall 

utilize a qualifying country photovoltaic 

device, a Canadian photovoltaic device, or, at 

the Contractor’s option, a domestic 

photovoltaic device; 

(3) $70,079 or more but less than $203,000, 

then the Contractor shall utilize under this 

contract only domestic photovoltaic devices, 

qualifying country photovoltaic devices, or 

Free Trade Agreement country photovoltaic 

devices (other than Bahrainian, Moroccan, or 

Peruvian photovoltaic devices), unless, in its 

offer, it specified utilization of other foreign 

photovoltaic devices in paragraph (c)(4)(ii) of 

the Photovoltaic Devices—Certificate 

provision of the solicitation. If the Contractor 

certified in its offer that it will utilize a 

qualifying country photovoltaic device or a 

Free Trade Agreement country photovoltaic 

device (other than a Bahrainian, Moroccan, 

or Peruvian photovoltaic device), the 

Contractor shall utilize a qualifying country 

photovoltaic device; a Free Trade Agreement 

country photovoltaic device (other than a 

Bahrainian, Moroccan, or Peruvian 

photovoltaic device), or, at the Contractor’s 

option, a domestic photovoltaic device; or 

(4) $203,000 or more, then the Contractor 

shall utilize under this contract only U.S.- 

made, qualifying country, or designated 

country photovoltaic devices. 

(End of clause) 

252.225–7018 Photovoltaic Devices— 

Certificate. 

As prescribed in 225.7017–4(b), use 

the following provision: 

Photovoltaic Devices—Certificate (DEC 

2011) 

(a) Definitions. Bahrainian photovoltaic 

device, Canadian photovoltaic device, 

Caribbean Basin photovoltaic device, 

designated country, domestic photovoltaic 

device, foreign photovoltaic device, Free 

Trade Agreement country, Free Trade 

Agreement photovoltaic device, least 

developed country photovoltaic device, 

Moroccan photovoltaic device, Peruvian 

photovoltaic device, photovoltaic device, 

qualifying country, qualifying country 

photovoltaic device, United States, U.S.- 

made photovoltaic device, and WTO GPA 

country photovoltaic device have the 

meanings given in the Photovoltaic Devices 

clause of this solicitation. 

(b) Restrictions. The following restrictions 

apply, depending on the estimated value of 

any photovoltaic devices to be utilized under 

a resultant contract: 

(1) If more than $3,000 but less than 

$203,000, then the Government will not 

accept an offer specifying the use of other 

foreign photovoltaic devices in paragraph 

(c)(2)(ii), (c)(3)(ii), or (c)(4)(ii) of this 

provision, unless the offeror documents to 

the satisfaction of the Contracting Officer that 

the price of the foreign photovoltaic device 

plus 50 percent is less than the price of a 

comparable domestic photovoltaic device. 

(2) If $203,000 or more, then the 

Government will consider only offers that 

utilize photovoltaic devices that are U.S.- 

made, qualifying country, or designated 

country photovoltaic devices. 

(c) Certification and identification of 

country of origin. [The offeror shall check the 

block and fill in the blank for one of the 

following paragraphs, based on the estimated 

value and the country of origin of 

photovoltaic devices to be utilized in 

performance of the contract:] 

___ (1) No photovoltaic devices will be 

utilized in performance of the contract, or 

such photovoltaic devices have an estimated 

value of $3,000 or less. 

(2) If more than $3,000 but less than 

$25,000— 

___ (i) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a domestic 

photovoltaic device or a qualifying country 

photovoltaic device [Offeror to specify 

country of origin __________]; or 

___ (ii) The foreign (other than qualifying 

country) photovoltaic devices to be utilized 

in performance of the contract are the 

product of __________. [Offeror to specify 

country of origin, if known, and provide 

documentation that the cost of a domestic 

photovoltaic device would be unreasonable 

in comparison to the cost of the proposed 

foreign photovoltaic device.] 

(3) If $25,000 or more but less than 

$70,079— 

___ (i) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a domestic 

photovoltaic device; a qualifying country 

photovoltaic device; or a Canadian 

photovoltaic device [Offeror to specify 

country of origin__________]; or 

___ (ii) The foreign (other than qualifying 

country or Canadian) photovoltaic devices to 

be utilized in performance of the contract are 

the product of __________. [Offeror to specify 

country of origin, if known, and provide 

documentation that the cost of a domestic 

photovoltaic device would be unreasonable 

in comparison to the cost of the proposed 

foreign photovoltaic device.] 

(4) If $70,079 or more but less than 

$203,000— 

___(i) The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a domestic 

photovoltaic device; a qualifying country 

(except Australian or Canadian) photovoltaic 

device; a Free Trade Agreement country 

photovoltaic device (other than a Bahrainian, 

Moroccan, or Peruvian photovoltaic device) 

[Offeror to specify country of origin 

__________]; or 

___(ii) The offered foreign photovoltaic 

devices (other than those from countries 

listed in paragraph (c)(4)(i) of this provision) 

are the product of __________. [Offeror to 

specify country of origin, if known, and 

provide documentation that the cost of a 

domestic photovoltaic device would be 

unreasonable in comparison to the cost of the 

proposed foreign photovoltaic device.] 

(5) If $203,000 or more— 

___The offeror certifies that each 

photovoltaic device to be utilized in 

performance of the contract is a U.S.-made, 

qualifying country, or designated country 

photovoltaic device. [Offeror to specify 

country of origin __________.] 

(End of provision) 

[FR Doc. 2011–32396 Filed 12–19–11; 8:45 am] 

BILLING CODE 5001–06–P 


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