Notice 2023-9, "Section 45W Commercial Clean Vehicles and Incremental Cost for 2023"
Concurrent with the white paper and Notice 2023-1, discussed in a separate blog, on December 29, 2022, the IRS released Notice 2023-9, which provides a safe harbor for determining the incremental cost of qualified commercial clean vehicles for the section 45W credit.
The amount of the commercial clean vehicle credit under section 45W is the lesser of (1) 30 percent of the taxpayer's basis in a vehicle if the vehicle is not powered by a gasoline or diesel internal combustion engine (or else 15 percent) or (2) the incremental cost of the vehicle.第45W节信用额上限为7 500美元(车辆总重量级小于14 000磅的车辆)或40 000美元(车辆总重量级小于14 000磅或以上的车辆)。
GVWR小于14 000磅的所有其他街车,纳税人可使用7 500美元增支成本
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Notice 2023-1 which provides proposed definitions of certain terms relevant for the section 30D credit.
White Paper on "Anticipated Direction of Forthcoming Proposed Guidance on Critical Mineral and Battery Component Value Calculations for the New Clean Vehicle Credit"
As described in more detail below, to determine if a vehicle satisfies the critical mineral and battery component requirements, one must determine (1) if a threshold percentage of the value of the critical minerals in a vehicle's battery is extracted or processed in the United States or "free trade agreement" partner countries or recycled in North America and (2) if a threshold percentage of the value of the vehicle's battery components is manufactured or assembled in North America.
Generally, to determine the value of critical minerals and battery components, the white paper provides that manufacturers must use the arm's length price that was paid or would be paid by an unrelated purchaser using the transfer pricing principles of Internal Revenue Code Section 482.为了确定临界矿产品值,制造商可选择关键矿产品最终处理或回收步骤前后的任何日期,但该日期必须应用到电池内所有材料上。判定电池组件值时,制造商可选择电池组件最终制造或组装步骤前后的任何日期,但日期必须应用到电池内所有电池组件中万博体育app手机登录For each of the critical minerals and the battery component percentage calculations, the manufacturer may average the percentage calculations over a period of time with respect to vehicles from the same model line, plant, class, or some combination thereof for vehicles, the final assembly of which occurs in North America.
Critical Minerals Requirement
The section 30D credit requires that, for any EV placed in service in 2023 (after the publication of proposed guidance expected in March 2023), 40 percent of the value of the critical minerals in the EV's battery must be either extracted or processed in the United States or in any country with which the United States has a free trade agreement (FTA) in effect, or recycled in North America.万博体育app手机登录2024年增加50%,2025年增加60%,2026年增加70%,2026年后增加80%。
白皮书与第30D节相关介绍以下两大类采购链: Free Trade Agreement Guidance The FTA requirement has drawn substantial criticism from some European and Asian trading partners with significant EV manufacturing operations as being an unreasonable restriction on trade.U.S.万博体育app手机登录domestic manufacturers have also expressed general concerns regarding the availability of adequate supply of critical minerals from FTA partners. Yielding to those concerns, the white paper notes that the term "free trade agreement" is not defined in the Inflation Reduction Act. Accordingly, Treasury and the IRS expect to seek comment in the proposed guidance on what criteria should be used to identify free trade agreements for purposes of the critical mineral requirement. Proposed criteria may include whether an agreement reduces or eliminates trade barriers on a preferential basis, commits the parties to refrain from imposing new trade barriers, establishes high-standard disciplines in key areas affecting trade (such as core labor and environmental protections), and/or reduces or eliminates restrictions on exports or commits the parties to refrain from imposing such restrictions, including for the critical minerals contained in electric vehicle batteries. Application of these or other criteria may broaden the universe of countries available to source critical minerals beyond the list of 20 countries with which the United States currently has a comprehensive trade agreement. Battery Components Requirement The section 30D credit requires that 50 percent of the value of an EV's battery components must be manufactured or assembled in North America if the EV is placed in service in 2023 (after the publication of proposed guidance expected in March 2023).万博体育app手机登录This amount increases to 60% in 2024 and 2025, 70% in 2026, 80% in 2027, 90% in 2028, and 100% after 2028. It is anticipated that proposed guidance will provide the following four steps for certifying that an EV meets the battery component requirement: The white paper also provides preliminary sketches of the following terms, although Treasury indicates it will supply more through proposed definitions of these terms in later guidance: Treasury clarifies that the constituent materials of battery components would not themselves constitute battery components (specifically, because constituent materials are produced by processing or recycling critical minerals, rather than through manufacturing or assembly).Importantly, because the incremental value of a battery component is determined by reducing the value of such battery component only by the value of other battery components contained in such battery component, this means that "the incremental value of battery components would include [i.e., would not be reduced by] the value of constituent materials contained therein." In the percentages calculation, this approach will have the effect of assigning significant weight to the location where constituent materials are first manufactured or assembled into a battery component—thus incentivizing industry participants to locate those activities in North America. And there will be the greatest "bang-for-the-buck" for locating in North America the manufacturing or assembly of the battery components with the greatest combined value of constituent materials plus manufacturing value-add. Notice 2023-1, "Certain Definitions of Terms in Section 30D Clean Vehicle Credit" For the section 30D clean vehicle credit, the final assembly of a vehicle must occur within North America, and a manufacturer's suggested retail price cannot exceed the applicable limitation, which depends on vehicle classifications.货车、运动公用车和小卡车的适用限值为80 000元MSRP,任何其他车辆的适用限值为55,000元MSRP万博体育app手机登录The notice provides the following new definitions to clarify key terms that appear throughout section 30D. Final Assembly Section 30D(d)(5) defines "final assembly" as "the process by which a manufacturer produces a new clean vehicle at, or through the use of, a plant, factory, or other place from which the vehicle is delivered to a dealer or importer with all component parts necessary for the mechanical operation of the vehicle included with the vehicle, whether or not the component parts are permanently installed in or on the vehicle." The notice provides the following additional guidance, explaining that a taxpayer may rely on either of the indicators below to determine a vehicle's location of final assembly:
1232fll和 (B) 制造商建议每件附属件或可选设备在向经销商交付时实际附属于该汽车的零售交付价,该价不在根据15U.S.C.所述这类汽车价格内1232/f)(1),见15 U.S.C.1232/f)(2).通知解释称,如15 U.S.C.描述的那样,该信息贴在车挡风玻璃或侧窗标签上1232. 第30D(f)(11)(c)节后通知称车辆的“车辆分类”必须符合40CFR600.002中为货车、运动工具车和小卡车提供的规则和定义。
The Greenhouse Gas Protocol ("GHG Protocol" or "Protocol")—a leading standard setter for measuring and managing corporate greenhouse gas emissions, borne of a partnership between World Resources Institute (WRI) and the World Business Council for Sustainable Development (WBCSD)—has opened stakeholder surveys concerning the revision of its Corporate Accounting and Reporting Standard, Guidance on Scope 2 Emissions, and the Scope 3 Standard and Scope 3 Calculation Guidance.
The GHG Protocol's standards and guidance are a foundational element of the Science Based Targets initiative (SBTi), which helps shape and verify corporate emissions reductions targets and ensure they are aligned with the goals of the 2015 Paris Agreement.协议是大企业首选碳核算机制:2016年92%以上Fortune500公司向CDP报告排放数据时,根据Hgorm协议会计标准这样做。万博体育app手机登录自2004年以来公司会计报告标准从未修订过,范围2排放指南-即自2010年代初首次发布以来与公司电热三维排放相关联的排放量从未修订过。
i2022年3月宣布利害关系方调查过程时,《温室气体议定书》宣布,“关键焦点将是通过重大披露举措确保与正在开发的核算规则相统一和一致..信息披露创举多多样,跨行业和司法权限,但关键共性在于依赖温室气体协议当前框架 。
,例如,美国证券交易委员会s/www.cov.com/en/news-and-inights/inights/2022/03/sec-proposes-landmark-climate-证交会在其提案中明确纳入并采纳了由《温室气体协议》开发的许多概念。
II万博体育app手机登录可再生能源证书作用2范围发布指南
A万博体育app手机登录RECs当前在2范围报告
Hrefss/default/files/Scope%2020Guidance_Final_Sept26.pdf>>当前2范围指导 (发布于2015年)为实体报告2范围排放量框架-即购买电耗、蒸气、热和冷却间接排放当前,实体可以通过定位法(基于实体地理区域平均产生能源排放量)或市场法(基于实体购买RECs的具体生成器排放物)报告CLE2排放量。
RECs是再生电源发布并出售给其他实体的工具,这些实体可能与直接购买电力合同捆绑或不可包绑万博体育app手机登录当前指南解释RECs销售传递可再生能源需求信号,这些信号驱动生产变化万博体育app手机登录RECs设计创建需求端市场信号,当前指南不要求实体证明RECs额外性也就是说,实体无需证明将排减纳入REC兆瓦本不会实现万博体育app手机登录数个其他报告机制,如英国绿楼理事会净零碳建框架,包含 这一额外性需求协议正考虑改变RECs
A部分修改中,协议似乎在重新评估是否和如何计算RECs协议2022年3月公告宣布由Anders Bjorn研究范围2,夏季Bjorn 二大建议 For each of these fifteen categories, the Guidance prescribes a time boundary to account for all emissions related to the entity's activities in the reporting year, even if those emissions occurred in a prior year or are expected to occur in a future year.万博体育app手机登录计算指南还就每一类别规定了一套专用计算排放法。万博体育app手机登录举例说,购买商品和服务产生的排放可用供应商专用法报告(有特定供应商提供的数据)、混合法报告(有某些供应商提供的数据和二级信息补缺)、平均数据法报告(有货物质量和平均排放因子数据)或开支法报告(有货物经济值和平均排放因子数据) C拟议的改变将显著效果报告2排放
Upstream Downstream emissions from purchased goods and services downstream transportation and distribution capital goods processing of sold products fuel- and energy-related activities (not included in scope 1 or scope 2) use of sold products upstream transportation and distribution end-of-life treatment of sold products waste generated in operations downstream leased assets business travel franchises employee commuting investments upstream leased assets IVsites/default/files/mocket-bases%20Survey%20Memo.pdf如上所述,基于市场的核算方法涉及使用合同工具或抵减信用量测量排放量性能,而《温室气体议定书》允许这些方法处理范围2排放问题。万博体育app手机登录然而,当前指南不包括基于市场报告直接(范围1)或供应链排放(范围3)的计算方法这份调查请求利害相关方反馈各种市场化计算方法-包括抵减信用额、嵌套信用额、供销棚/价值链干预、批量平衡认证和书籍填报证书-可能应用到范围1和3排放报告上。
V万博体育app手机登录公司应该从此难得机会生成碳规则
(a) The make, model, model year, and any other appropriate identifiers of the motor vehicle;
(b) Certification that the motor vehicle is made by a qualified manufacturer, within the meaning of Section 30D(d)(3);
(c) Certification that the motor vehicle is treated as a motor vehicle for purposes of title II of the Clean Air Act;
(d) The gross vehicle weight rating of the motor vehicle;
(e) The battery capacity of the motor vehicle;
(f) The motor vehicle's vehicle identification number!and
(g) Such other information as the Secretary may provide on irs.gov.
With respect to the Section 30D credit, the following additional information needs to be provided:
(a) Certification that the motor vehicle is propelled to a significant extent by an electric motor that draws electricity from a battery that has a capacity of not less than 7 kilowatt hours and the battery is capable of being recharged from an external source of electricity, or the motor vehicle is a new qualified fuel cell motor vehicle;
(b) Certification that the motor vehicle is manufactured primarily for use on public streets, roads and highways (not including a vehicle operated exclusively on a rail or rails) and has at least four wheels;
(c) Certification that the final assembly of the motor vehicle occurred within North America;
(d) Certification of the percentage of the value of the applicable critical minerals contained in the electric vehicle's battery that were (i) extracted or processed in the United States or a FTA partner country, or (ii) recycled in North America;
(e) Certification of the percentage of the value of the EV battery components that were manufactured or assembled in North America;
(f) Whether the motor vehicle is a van, sport utility vehicle, pickup truck, or other vehicle!and
(g) The motor vehicle's manufacturer's suggested retail price.
Similarly, with respect to Section 25E and 45W credits, the manufacturer must provide additional information to show that vehicles satisfy the statutory qualifications for credit eligibility.
A vehicle seller, such as a dealer, must furnish a report to a purchaser not later than the purchase date and an annual report to the IRS, including the following information:
(a) The name and taxpayer identification number of the seller;
(b) The name and taxpayer identification number of the purchaser;
(c) The vehicle identification number, if assigned, of the vehicle;
(d) The battery capacity of the vehicle;
(e) For new clean vehicles, verification that original use of the vehicle commences with the purchaser;
(f) The date of sale, sale price of the vehicle, and maximum credit allowable to the purchaser!and
(g) If a purchaser makes an election to transfer the credit to the selling dealer that satisfies certain requirements for sales after December 31, 2023, any amount paid or allowable as a partial payment or down payment.
This revenue procedure notably does not require qualified manufacturers to certify as to a vehicle's satisfaction of the requirements in Section 30D(d)(7)—that the critical minerals in the battery have not been extracted, processed, or recycled by a "foreign entity of concern" and that the components contained in the battery have not been manufactured or assembled by a foreign entity of concern. This would seem to impose less of a diligence burden on manufacturers.同理,税收程序没有解决车辆购买者如何确定车辆满足这些需求的问题。我们注意到,IRS可添加这项附加认证要求,作为2024或2025前“秘书可能提供的其他信息”的一部分,而2024或2025前外国受关注实体规则生效。
IT似乎报告需要解决车辆信用分数问题万博体育app手机登录As such, two vehicles of the identical make, model, and year may not always have the same credit eligibility, which will vary depending on the composition of critical minerals and components and the location of final assembly.
Manufacturers and sellers must submit a declaration under penalties of perjury that the facts presented in support of this certification are true, correct, and complete. A purchaser of a vehicle can rely on the manufacturer's certification for the Section 30D, 45W, and 25E credits.
This revenue procedure does not provide any guidance on how to determine the value of critical minerals and components. The revenue procedure expressly notes that it does not constitute the guidance the IRS is required to propose regarding Section 30D(e)(1) (Critical Minerals Requirement) and Section 30D(e)(2) (Battery Components). Such guidance is due to be published separately, by no later than December 31, 2022.
最后,我们注意到税收程序没有表示政府会放松信用计划的法定时限-例如提供过渡期-正如许多制造商所请求的那样。
我们将继续监测和报告这些动态。
In a series of prior blog posts, we previously highlighted the historic implications of the Inflation Reduction Act (IRA) for the U.S.'s international climate commitments, as well as for private companies navigating the energy transition. Shortly after our series published, the Senate passed the IRA on Sunday August 7th with only minor modifications to the bill's $369 billion in climate and clean energy spending. Today, the House passed the IRA without any further changes, and soon hereafter President Biden is expected to sign it into law.
However, this is only the beginning of the road!IRA四角将产生广度效果。 未来数月和数年中,我们期望看到对机构规则的强力操纵将决定IRA实施,并判定它作为能源策略的最终成功
As an initial matter, it seems Congress has not finished its work revamping the nation's climate and energy laws. As part of his agreement to support the IRA, Senator Joe Manchin (D-WV) announced that "President Biden, Leader Schumer and Speaker Pelosi have committed to advancing a suite of commonsense permitting reforms this fall that will ensure all energy infrastructure, from transmission to pipelines and export facilities, can be efficiently and responsibly built to deliver energy safely around the country and to our allies." While the exact contours of this legislation are not currently known, Senator Manchin's office recently released a legislative framework, which includes proposals to, among other things:
- tighten environmental reviews under the National Environmental Policy Act (NEPA);
- clarify the permitting and regulatory authorities of the Department of Energy and the Federal Energy Regulatory Commission;
- reform Clean Water Act provisions that allow state and local governments to impose additional requirements on federal permits!and
- create a list of strategically important energy projects, that the President can designate and periodically update, for streamlined permitting reviews.
According to Senator Manchin's office, permitting reform will receive a vote before the end of the fiscal year on September 30, 2022. Unlike the Inflation Reduction Act, which passed through arcane rules of reconciliation—and thus required only a simple majority—permitting reform will be subject to the Senate filibuster and require the support of at least 60 senators (and bipartisan agreement) to become law. At the moment, it is unclear whether broad bipartisan support exists for this measure!some Republicans have publicly signaled skepticism, and environmental activists have long opposed expedited fossil fuel permitting.However, in the past Republican Senators have expressed an interest in speeding the nation's permitting system. During this Congress, a bipartisan group of Senators introduced a law to accelerate infrastructure permitting, and all Republicans and Senator Manchin supported a resolution to disapprove of recent revisions to NEPA. Together, these actions suggest there may be some interest within the Republican caucus in implementing meaningful changes to current law, partisan divisions notwithstanding.
II.万博体育app手机登录减通货膨胀法关键赋值指南 外加,IRA本身有几部分未来数月将通过行政引导和规则制定过程予以澄清和实施守法标准支付工资、学徒和家用内容要求并计算温室气体排放法新税抵免 。
ahrfss/www.insideEnergyandense.com/2022/07/enger-support-for-电机-车-车-车-门-电-电-电-电-电-电-电-电-电-电-电-电-电-电-电-电-电-电-电-电链/>这些规定并不适用于商业电车信用分量 。 具体地说,法律要求电电池组件的一定比例为“制造或组装北美 ”, 并适用百分比逐年变化 。 法律还要求电池中关键矿产品中一定比例为“提取或处理 ”, 在美国或与美国相邻的任何国家中实现“提取或处理 ” 。IRA § 13401(e).鉴于电车供应链的现状,预计许多汽车制造商难以满足这些外包需求万博体育app手机登录
However, key features of these clean vehicle credits have yet to take shape. By the end of this year, the IRA requires the Treasury Department to issue regulatory guidance to help shape and administer the battery and mineral sourcing requirements. Id. Among the questions open for interpretation are acceptable methods for calculating the "percentage of the value" for critical mineral and battery components, as well as better defining the terms "manufacture or assembly" and "extraction or processing." How Treasury addresses these points will have significant ramifications for the short- and medium- term value of the clean vehicle credits.
A much broader set of IRA tax credits seek to promote investment in, and use of, clean electricity, but their value depends on the interpretation of key labor and domestic content requirements. As currently structured, the IRA extends and modifies the Investment Tax Credit and Production Tax Credits that apply to certain renewable sources of power through the end of 2024. Id. §§ 13101, 13102. Beginning in 2025, similar projects will also be eligible for a new technology-neutral Clean Electricity Production Credit and a Clean Electricity Investment Credit, which apply to any domestically produced electricity source with a greenhouse gas emissions rate of zero. Id. §§ 13701, 13702. These credits, and others throughout the IRA, are keyed to the satisfaction of prevailing wage and apprenticeship requirements.
Specifically, if these wage and apprenticeship requirements are not satisfied the credits are worth five times less than they otherwise would be. Additionally, the IRA creates a 10% "domestic content bonus" when facilities certify that certain percentages of steel, iron, and other manufactured products used in the facility are made in America, and further increases the value of the credit for projects located in "energy communities," i.e.棕田网站或经济困境前化石燃料生产网站解释应用将极大影响政府可用支持值。 未来清洁能源项目必须注意确保适当文档并遵守这些条款Finally, many IRA tax credits are pegged to a demonstration of the life-cycle emissions of the underlying facility or fuel. For instance, the value of the clean hydrogen credit varies based on the project's "lifecycle greenhouse gas emissions rate." On the high end, a 100% credit value is awarded to projects with a lifecycle emissions rate of less than .45 kilograms (kgs) of carbon dioxide equivalent (CO2e), but on the low end, projects only receive 20% of the credit value if their emissions rate is between 4 and 2.5 kgs of CO2e. Id. § 13204. Additionally, the availability of the new credit for sustainable aviation fuels depends on a certification that the applicable fuels achieve at least a 50% life cycle greenhouse gas reduction percentage compared to petroleum-based jet fuel!燃料项目再为生命周期温室气体排放量增量百分比增量增益Id.
The full implications of the IRA are yet to be understood. The law is likely to have significant implications for our energy future, leading to sharp growth in the nation's clean energy production and a decline in national greenhouse gas emissions. Though we have laid out some initial consequences, there are undoubtedly many more interpretive questions that will arise in the coming weeks, months, and years. Additionally, by subsidizing and lowering the costs of clean electricity and other low-emissions technology, the IRA could improve the benefit-cost analysis for a variety of environmental regulations, leading to more stringent and durable rules. Further, by bolstering the domestic energy industry, the IRA could alter the political economy of climate policy, creating a broader base of support for future government investments in clean energy production or greenhouse gas curtailment. Regardless of how this future unfolds, it will surely be a dynamic time for energy and environmental law and policy.
The IRA is the latest step in pursuing the Biden Administration's environmental justice goals and it continues to push them forward by funding a variety of projects. The IRA would inject billions of dollars in funding into environmental justice initiatives and, according to Senator Edward Markey (D-Mass.), represent "…the most significant investment in environmental justice and climate action in American history." President Biden said that it would make a "real" investment into environmental justice and many environmental groups have rushed to support the bill calling it "an incredible breakthrough."
If passed the IRA would provide major incentives to produce clean energy and reduce pollution in low-income and disadvantaged communities.该法案提供高达3.6千兆瓦的太阳能和风能减税,足以为低收入社区数以百万计的家庭提供电源该法案还分配47.5亿美元给各州减少温室气体排放,重点是弱势社区。该法案还将向全美部落社区分配数亿元。
disadtage社区也将从30多亿美元联邦公路局获得资金获益,用于改善交通接入、重连低收入区到邻接并减少交通枢纽负面影响等项目。 IRA第60501段还将向社区非盈利组织提供30亿美元,以减少污染、解决有毒污染问题、监控局部污染水平并投资环境恢复能力项目IRA第60201条The Department of Housing and Urban Development would also receive $1 billion to improve the climate resilience and electrification projects in public housing. IRA § 30002.Multiple e-NGOs have urged passage of the IRA and highlighted the contributions it will make to environmental justice. For example, The Sierra Club's statement identifies multiple areas of environmental justice impact that will stem from passage of the IRA. Similarly, WE ACT's statement of support noted, "We acknowledge Members of Congress for returning to the negotiating table and producing an inflation reduction package that has billions of environmental justice funding that can deliver the once-in-a-generation investments needed to make communities of color and areas of low income healthier, cleaner, and economically viable."
This package presents the opportunity for Congress to finish legislating President Biden's Build Back Better agenda, completing the story detailed in our series The ABCs of the AJP. As we left the saga last summer, we noted that the effort to enact that agenda was Not Broken, Simply Unfinished. Today we are updating that series to detail the following energy related elements of the IRA:
- Accelerating efforts to decarbonize the economy and address climate change
- Ten year stability for expanded clean energy tax credits
- New funding for a National Green Bank through a Greenhouse Gas Reduction Fund
- The Creation of a Methane Emissions Reduction Program
- Strong support for the electric vehicle sector and domestic supply chain
- Empowerment of environmental justice
As President Biden noted yesterday, "Sometimes seem like nothing gets done in Washington ...但政府工作可能缓慢和沮丧,有时甚至令人厌烦。 之后拒绝放弃支付的人辛勤工作时日月数计算。历史成真。生活变换 。 至此,这些情感可能还为时过早!Arizona-Has/news/2022/07/28/dmocrats-climate-xacco-Service-Bill-reces-00048459能源和气候政策,随着法案跨过立法过程最后阶段,我们将继续更新和补充覆盖量。
In the July 14 memorandum, Commerce seeks information about the: (1) amount of investment necessary to construct and start-up certain facilities, (2) non-financial barriers (e.g., access to inputs, qualified technical employees, technologies, research and development, etc.) that companies typically face to establish and begin certain operations, and (3) research and development ("R&D") expenses associated with conducting certain operations. These types of facilities/operations involved in:
- refining silicon into solar-grade polysilicon,
- producing ingots from solar-grade polysilicon,
- producing wafers from solar-grade ingots,
- producing solar cells from wafers,
- producing solar modules from solar cells, and
- the same operations and products as foreign producers and exporters responding to Commerce's solar circumvention inquiries.
The agency is particularly concerned with facilities located, and operations performed, in mainland China, Cambodia, Malaysia, Thailand, or Vietnam, but would accept information pertaining to other countries.
Commerce is required to consider the level of investment and R&D expenses where circumvention is alleged due to assembly in a third country. Level of investment and R&D expenses are factors that statutorily must be considered when Commerce assesses whether the processing occurring in Cambodia, Malaysia, Thailand, and Vietnam is "minor or insignificant."[2] It is therefore important that interested parties provide Commerce with the requested information by the fast-approaching deadline of July 21st.
Commerce has requested this information only from "interested parties" in the solar circumvention inquiries which are defined under Commerce's rules to include foreign producers and U.S.Covington完全可以帮助客户响应商务请求提供事实信息或对商业规避查询有更广泛问题瑞格公元前19 0712022.
s1677j(b)(2).While the proposed rules would represent a positive development for foreign manufacturers, U.S.进口商和美国消费者,包括美国太阳项目开发产业,如果以当前形式发布,修改规则是可能的。因此,商务悬疑查询方必须在2022年8月1日之前提交评论 。
The proposed rules directly respond to President Biden's June 6, 2022 emergency declaration, which found that an emergency exists "with respect to the threats to the availability of sufficient electricity generation capacity" and authorized Commerce to issue a moratorium on tariffs on solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam for up to a 24-month period.[4]
The Proposed Rules
The proposed rules appear to respond to concerns raised by the solar project development industry about how the emergency declaration would be implemented in the context of existing agency regulations. Commerce has confirmed that it intends to provide for the temporary, duty-free importation of certain solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam even if Commerce determines that they are circumventing an existing AD/CVD order. In so doing, Commerce has clarified that these new rules—and not the agency's existing circumvention regulations—will apply to such solar cells and modules throughout the pendency of the emergency period.
The proposed rules would be codified as a new part 362 to title 19 of the Code of Federal Regulations, and they would provide that:
- The applicable entries would be those "Southeast Asian-Completed Cells and Modules" that are subject to the solar circumvention inquiries. "Southeast Asian-Completed Cells and Modules" means solar cells and modules completed in Cambodia, Malaysia, Thailand, or Vietnam, using parts and components that are made in China and "subsequently exported from Cambodia, Malaysia, Thailand or Vietnam to the United States."
- The date of termination of the temporary duty-free importation would be June 6, 2024, or the date when the emergency is terminated, whichever occurs first.
- Importation of Southeast Asian-Completed Cells and Modules would be "free of collection" of AD/CVD cash deposits until the termination date of the emergency.
- In the event of an affirmative preliminary or final circumvention determination prior to the date of termination, Commerce would not direct U.S.Customs and Border Protection to suspend liquidation or collect cash deposits. This means that Southeast Asian-Completed Cells and Modules imported at any time prior to the termination of the emergency would not be subject to AD/CVD duties as a result of an affirmative determination in the circumvention inquiries.
- In the event that it issues an affirmative preliminary circumvention determination, Commerce has signaled that it may require certifications for solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam in order to differentiate between (i) Southeast Asian modules with Chinese cells that are already subject to the existing orders and (ii) Southeast Asian modules using Chinese inputs that would become subject to the existing orders solely based upon an affirmative circumvention finding. This certification process would likely create an administrative burden for U.S.进口商
a美国成员太阳能电池制造行业Auxin Solar公司请求绕行查询,因此可能有兴趣对受影响的进口品保持高关税。商业有义务考虑所有提交的评论并可能根据这些评论修改拟议规则。 机构必须听取所有各方的意见,包括那些支持当前形式拟议规则者的意见,以便机构能够充分理解修改规则的后果。Covington深入处理国际贸易和能源问题,完全有能力帮助想提交评论或可能质疑新规则会如何影响业务的客户。
太阳产业一直处在生存危机中,这是威胁对很大一部分美国征收回溯未来关税所触发的导入物2022年4月1日启动危机时商务部启动调查以确定柬埔寨、马来西亚、泰国和越南的太阳能电池和模块是否绕过中国太阳能电池的反倾销税这些国家的太阳能电池大都占美国约80%2020年太阳模块导入量 。
While rarely invoked, section 318(a) was recently used by President Trump to reduce certain burdens on the importation of personal protective equipment during the COVID-19 pandemic.[8] There are other examples of prior Administrations suspending imports tariffs under this provision.[9]
In addition to issuing the Declaration, President Biden invoked the Defense Production Act for solar cells and modules, as well as for: insulation, electric heat pumps, transformers (and electric grid components), electrolyzers, fuel cells, and platinum group metals.The White House indicated that the DPA Determination is intended to: accelerate domestic production of clean energy technologies, including solar panel parts and put the full power of federal procurement to work spurring additional domestic solar manufacturing capacity by directing the development of master supply agreements, including "super preference" status.[10]
The President's emergency action does not impact existing AD/CVD tariffs on imports of solar cells and modules from mainland China and Taiwan including such modules assembled in jurisdictions other than mainland China or Taiwan using cells from mainland China or Taiwan.
What Can We Expect from Commerce?
On the same day the Declaration was issued, Commerce issued a press release in which Secretary Raimondo indicated that Commerce "will issue regulations to temporarily permit for up to 24 months duty-free access to solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam." The Assistant Secretary of Commerce for Enforcement and Compliance, Lisa Wang, who is responsible for AD/CVD determinations, similarly stated: "no solar cells or modules imported from Cambodia, Malaysia, Thailand, and Vietnam will be subject to new antidumping or countervailing duties during the period of the emergency."[11]
Commerce is expected to formalize the moratorium on these AD/CVD tariffs through a regulation.鉴于这一行动的紧急性质,商业界很可能在2022年8月29日初步判定日期前数日或数周发布这项条例而不通知和评论。
商业可能仍然发现柬埔寨、马来西亚、泰国和越南的太阳能电池和模块绕过AD和CVD订单,在这种情况下,关税估计在紧急段过期后开始应用。
Do这些行动解决美国危机太阳产业?
提供总统声明和商务声明,似乎极有可能在今后24个月内不向柬埔寨、马来西亚、泰国和越南的太阳能电池模块征收新的AD/CVD关税,无论规避调查结果如何宣言因此有可能产生关税可预测性,使美国太阳能产业需求继续输入太阳能电池模块太阳能电池生产者已经表示,他们正在考虑对暂停这些关税提出法律挑战上文指出,总统行动似乎与规约一致,法院通常在紧急情况下服从总统鉴此,这种法律挑战不太可能成功,而且由于通常需要时间提出这种挑战,也不太可能在商务8月初步判定前解决。太阳能产业在质疑AD/CVD收费的诉讼中,法院例行发布追溯性补救办法因此,在不大可能成功对《宣言》提出质疑的情况下,法院可追溯性地对太阳能电池和模块适用AD/CVD关税,特别是如果在任何诉讼未决期间采取程序步骤命令最终评估太阳能电池和模块关税。
在24个月紧急状态到期后进口关税水平方面比较不确定(或总统似乎不太可能结束紧急状态时更快)。商业发现规避后,从柬埔寨、马来西亚、泰国和越南等地对太阳能电池模块立即实施关税,目前尚不清楚该点可适用什么率。通常,外国出口商和生产者能够参加对AD/CVD指令的行政审查,以建立自己的公司特有收费率,而不是支付全局AD/CVD通用收费率,根据中国指令,总收费率约为250%(合并计算)。尚不清楚商务是否会允许东南亚国家出口商/生产商在紧急情况下参加评审,因为预计它们的商品在进口时不受关税约束。2024年中 假设紧急端太阳能产业发现极高AD/CVD收费威胁再次锐减美国太阳能电池和模块的供应市场
理解总统或商务对太阳能电池或对太阳能电池模块导入的潜在关税风险对贵公司很重要,Covington完全有条件提供帮助manbext网页版We have a group of attorneys who are well versed in these trade laws and have decades of experience helping clients navigate the tariff risks created by AD/CVD orders.
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If you have any questions concerning the material discussed, please contact the following members of our International Trade and Energy practices: Shara Aranoff, Alexander Chinoy, William Isasi, Andy Jack, and Jay Smith.
[1] Letter from Sen.海因里希森Lujan RepStansbury和Repfernández呼叫Biden总统(5月9日2022日)。
[4] White House, Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia (June 6, 2022).
[5] White House, Memorandum on Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as amended, on Solar Photovoltaic Modules and Module Components (June 6, 2022).
[6] White House, Memorandum on Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as amended, on Solar Photovoltaic Modules and Module Components (June 6, 2022) ("the Secretary shall consider taking appropriate action under section 1318(a) of title 19, United States Code . . . .").
[7] (empahsis added) While the text of this provision references the "Secretary of the Treasury," the notes clarify that the provision today applies to the Secretary of Commerce who is the official that administers U.S.AD/CVD法例.