Final Guidance Issued on “Foreign Entity of Concern” Criteria
On May 3, 2024, the US Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) issued final regulations (T.D. 9995) concerning the clean vehicle credit under Section 30D of the Internal Revenue Code (the “Code”),1 as amended by the Inflation Reduction Act (“IRA”) and the previously owned clean vehicle tax credit under Section 25D of the Code (the “Final Regulations”). Concurrently, the Department of Energy (“DoE”) issued final guidance (the “Final Guidance”) interpreting the statutory definition of “foreign entity of concern” (“FEOC”) in Section 40207 of the Bipartisan Infrastructure Law (BIL) for the BIL’s battery grant programs. The Final Regulations cross-reference the DoE’s guidance.
Treasury and the IRS published proposed regulations (REG-120080-22) containing guidance under section 30D in April 2023,2 proposed regulations (REG-113064-23) containing guidance under sections 25E and 30D in October 2023, and proposed regulations (REG-118492-23) containing additional guidance under section 30D in December 2023.3 Concurrently with the December 2023 proposed regulations, the DoE issued a notice of proposed rulemaking (88 FR 84082) interpreting the definition FEOC for the BIL’s battery grant programs.4 The Final Regulations and DoE’s guidance generally adopt the proposed regulations and previous guidance, with refinements and clarifications that take into account public comments.
Although the Final Regulations address many aspects of the clean vehicle tax credit under Section 30D of the Code as well as the previously owned clean vehicle tax credit under Section 25D of the Code, this Legal Update focuses on the Final Guidance and only those aspects of the Final Regulations that relate to the FEOC criteria such as the critical mineral sourcing requirement and battery component requirement, in light of the particular interest that the FEOC rules have appropriately attracted.
I. The DoE’s Final Guidance
The DoE’s Final Guidance retains the “two-step” approach for determining whether an entity is a FEOC. To be a FEOC the entity must 1) be a foreign entity, and 2) either subject to the jurisdiction of a covered nation, or owned, controlled, or subject to the direction of a government of a covered nation. DoE’s guidance unpacks each of these terms, setting forth detailed criteria for evaluating an entity’s FEOC status. “Covered nations” means the People’s Republic of China, the Russian Federation, the Democratic People’s Republic of North Korea, and the Islamic Republic of Iran.5 In the Final Guidance, the DoE explicitly states that its criteria for determining whether an entity is a FEOC does not need to match the criteria included in the Department of Commerce’s regulations which do not require an explicit showing of control of an entity by the government of a covered nation.6
A. Foreign Entity
The DoE’s guidance does not make any changes to its proposed interpretation of the term “foreign entity.” The term encompasses:
- A foreign government or foreign political party;
- A foreign individual who is not a US lawful permanent resident, US citizen, or other protected individual under US immigration law; or
- A company or organization established under foreign laws or with its principal place of business in a foreign country.
Importantly, the DoE’s guidance clarifies that US entities can also be considered “foreign” for FEOC purposes if they are owned, controlled, or directed by another entity that meets the foreign entity definition above. A US entity that is a subsidiary of an entity that is a FEOC by reason of the subject to the jurisdiction criteria is not automatically a FEOC. Instead, a determination of whether the US entity is a FEOC is made based on the “two-step” analysis.
In response to comments, the DoE confirmed that a US-headquartered company operating in a covered nation would not be considered a foreign entity merely because of those foreign operations, unless it was actually organized under the laws of the covered nation. However, the DoE noted that entities operating in covered nations are typically required to be legally organized there, in which case they would be considered foreign and subject to that government’s jurisdiction. Under this fact pattern, the entity’s operations in the covered nation would be a FEOC, but that designation would not flow back to the company’s US or third-country operations.
B. Government of a Foreign Country
The DoE’s guidance makes minor clarifying changes to its proposed interpretation of the term “government of a foreign country.” This term is used to determine whether an entity is “owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country.” It is also used in the interpretation of “foreign entity.”
Importantly, the Final Guidance includes subnational governments, which can have significant ownership or control over firms in the supply chain. For certain covered nations, many subnational and local government-owned entities play a large role in the economy, with local state-owned enterprises (“SOEs”) being a major driver of regional economies. The Final Guidance also includes instrumentalities, which are separate legal entities that are organs of the state but where ownership may be unclear, such as utilities or public financial institutions. The DoE clarified that all SOEs, both national and local, are considered government instrumentalities. Therefore, a national SOE’s ownership interests in an entity can be combined with a local SOE’s to reach the 25% FEOC control threshold (described below in Section D).
The DoE’s guidance also includes former senior foreign political figures within the scope of “government of a foreign country.” DoE states that the inclusion of former senior foreign political figures recognizes the reality that in certain covered nations, namely China, government influence over businesses is often exercised through individuals representing the government on corporate boards, or acting at the government’s direction to advance governmental interests when serving as an equity owner, or through voting rights in an otherwise private business. To address situations where officials leave their positions to exert the same type of influence on the government’s behalf, the interpretation also includes former senior government officials and party leaders. The DoE confirmed there is no time limit after which a former official is no longer considered a “senior foreign political figure.” The DoE noted that the concerns arising from serving in a senior government role or membership in certain Chinese Communist Party (“CCP”) bodies do not dissipate merely because an individual no longer holds that position. The standard for a “senior” official is whether the person exercises “substantial authority over policy, operations, or the use of government-owned resources.” For China, members of specified CCP entities are automatically considered senior, but that does not constitute an exhaustive list, as a senior official could also work at a government ministry, SOE, or the military.
Finally, the DoE confirmed that for the CCP, senior officials of the “dominant or ruling political party” include those at the central and local levels. Current, but not former, members of local or provincial Chinese People’s Political Consultative Conferences are considered part of the “government of a foreign country.”
Even with the additional analysis and examples provided in the Final Guidance, significant ambiguity remains as to which individuals in an entity would fall within the scope of the former senior official criteria, and how a taxpayer could provide sufficient documentation or evidence that no one who meets the definition of a former senior official is employed or associated with the entity.
C. Subject to the Jurisdiction
The DoE’s guidance does not make any changes to its proposed interpretation of the term “subject to the jurisdiction.” If an entity is “subject to the jurisdiction” of the government of a covered nation, it is considered a FEOC. A foreign entity is subject to the jurisdiction of a covered nation’s government if it: (i) is incorporated or domiciled in, or has its principal place of business in, a covered nation, or (ii) with respect to the critical minerals, components, or materials of a given battery, it engages in the extraction, processing, or recycling of such critical minerals, or the manufacturing or assembly of such components, or the processing of such materials, in a covered nation. The Final Guidance provides an objective standard based on the common understanding of “jurisdiction,” rather than a subjective one that relies on how an individual nation views its own jurisdictional reach.
Under this interpretation, any organization formed under the laws of a covered nation’s government is a national of that country and therefore subject to its direct legal authority. This is consistent with how US law treats corporations for diversity jurisdiction purposes. As clarified in response to comments, an entity’s “principal place of business” should be determined using the Supreme Court’s “nerve center” test from Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). This looks to the place where the officers direct, control, and coordinate the company’s activities, which is normally the corporate headquarters. In addition, an entity not incorporated in a covered nation could still be a FEOC with respect to the specific inputs and products under that nation’s jurisdiction, but not for its minerals, components, or materials outside that jurisdiction.
In response to comments urging that all subsidiaries of FEOCs be automatically considered FEOCs themselves, even when the parent is a FEOC solely because it is headquartered in a covered nation, the DoE declined to adopt this change. When an entity is a FEOC because it is “subject to the jurisdiction” of a covered nation, its subsidiaries are not automatically considered FEOCs solely because the parent is a jurisdictional FEOC. However, a subsidiary would be a FEOC if it is also either: (1) itself “subject to the jurisdiction” of the covered nation under the criteria above; or (2) “controlled” by the covered nation government through direct or indirect means like ownership, joint ventures, or contracts conferring effective control under the DoE’s guidance. The DoE’s guidance aims to effectuate the purpose of the FEOC provisions, which is to reduce covered nation dependence in battery supply chains, while providing pathways for companies to increase US and allied nation production.
D. Owned by, Controlled by, or Subject to the Direction
The DoE’s Final Guidance is largely consistent with its proposed guidance, but makes some clarifying changes in response to comments. The DoE’s interpretation provides for two types of control: (1) holding 25% or more of an entity’s board seats, voting rights, or equity interest; and (2) a license or contract conferring rights that amount to control (which DoE describes as “effective control”). If parties that directly or indirectly hold 25% or more of the board seats, voting rights, or equity interest or maintain effective control via licensing or contracts are the government of a covered nation, the entity is considered a FEOC. This term is also used in the interpretation of “foreign entity” to account for situations where a US entity is sufficiently controlled to be deemed foreign.
In response to comments, the DoE clarified that the voting rights, equity interests and board seats are each evaluated independently in calculating the 25% control threshold. For example, if a covered nation’s government holds 20% voting rights, 10% equity and 15% of board seats in an entity, these percentages would not be combined to equal 45% control. Rather, each metric is assessed separately, resulting in 20% control at the highest level, which is below the 25% FEOC threshold. That said, the DoE recognizes significant government control across all three metrics may still raise concerns.
The DoE also confirmed that “voting rights” means the actual voting power of owners based on their stock types to the extent reasonably discernable, not just voting by the board or common shareholders. For board seats, their value equals their share of total board voting power, so one government-appointed seat with 25% voting power would trigger FEOC status. Equity interests broadly cover all ownership stakes, including capital, profits and contingent interests, with any reasonably determinable contingent amount included even if conversion is not imminent.
If the DoE’s interpretation of “control” was limited to the 25% voting, equity and board seat thresholds held by a covered nation’s government, the government could circumvent the rules by exerting control through a FEOC’s licenses or contracts with non-FEOCs. To prevent this, the DoE’s control definition includes “effective control” through contracts and licenses, warranting treatment of the FEOC as the entity truly responsible for production. However, many licenses and contracts do not raise these manipulation concerns. To provide a functional bright-line test for evaluating complex battery supply chain agreements, the DoE’s interpretation includes a safe harbor. If a non-FEOC demonstrates through contract that it reserved certain rights to itself or another non-FEOC, it would not be deemed a FEOC solely because of that contractual relationship.
The DoE recognizes that even if a FEOC agreement confers effective control over producing specific minerals, components or materials, the non-FEOC contracting party would not necessarily be government-controlled for other items produced outside that agreement. Therefore, an entity could be a FEOC for the minerals, components, or materials effectively made by the FEOC under the contract, but not for other items produced independently. The DoE’s guidance continues the Biden Administration’s apparent efforts to encourage US firms to engage in licensing arrangements rather than JVs with Chinese entities.
II. Treasury Regulations
A. Definitions
The Final Regulations provide general definitions related to the section 30D clean vehicle credit. We focus on new or modified definitions in the Final Regulations relevant to the FEOC restriction.
1. Applicable Critical Mineral
The Final Regulations generally adopt the definition of “applicable critical mineral” from the proposed regulations, with a clarification that the FEOC restriction determination with respect to an applicable critical mineral takes into account each production step through the step in which the mineral is processed or recycled into a constituent material, even if not in the form prescribed by the advanced manufacturing production credit rules under section 45X(c)(6) at every step of production. Consistent with the proposed regulations, an applicable critical mineral is disregarded if it is fully consumed in the production of the constituent material or battery component and no longer remains in any form in the battery.
2. Associated Constituent Materials
Consistent with the proposed regulations, the Final Regulations add a definition of “associated constituent material” to Treasury Regulation section 1.30D-2(b), providing that an “associated constituent material,” with respect to an applicable critical mineral, is a constituent material that has been processed or recycled from that mineral, even if the processing or recycling transformed the mineral into a form not listed in section 45X(c)(6) relating to applicable critical minerals for purposes of the advanced manufacturing production credit rules. This is relevant in determining whether an applicable critical mineral is FEOC-compliant.
3. Battery Component
Proposed Treasury Regulation sections 1.30D-3(c)(5) and 1.30D-6(a)(6) defined “battery component” as a component that forms part of a battery and is manufactured or assembled from components or constituent materials combined through industrial, chemical, and physical assembly steps. Battery components include items like cathode and anode electrodes, separators, electrolytes, battery cells, and modules. Constituent materials are not battery components even though they may be manufactured into battery components. Some battery components may be made entirely of inputs without constituent materials. Battery components include any piece of the battery cell that contributes to electrochemical energy storage.
Several commenters proposed adding specific items to the non-exhaustive list of battery components, while others requested a complete list for certainty. To clarify the distinction between battery components and constituent materials, the Final Regulations add a definition of “battery materials” to Treasury Regulation section 1.30D-2(b).
4. Battery Materials
“Battery materials” are defined as direct and indirect inputs to battery components produced through processing, rather than manufacturing or assembly. Battery materials are not a type of battery component, although they may be manufactured or assembled into battery components. The three battery materials categories are applicable critical minerals, constituent materials, and battery materials without applicable critical minerals. Examples of battery materials that may or may not contain applicable critical minerals include a separator base film (if not manufactured or assembled) and separator coating. Examples of battery materials without applicable critical minerals include conductive additives, copper foils prior to graphite deposition, and electrolyte solvents.
This new “battery materials” definition is relevant to the FEOC restriction because it distinguishes between materials that are subject to the restriction (applicable critical minerals and the constituent materials derived from them) versus those that are not (battery materials without applicable critical minerals). It also clarifies that battery materials produced through processing, even if they contain applicable critical minerals, are not themselves considered “battery components” manufactured or assembled by a FEOC for purposes of the FEOC restriction.
Given that battery materials are outside the scope of the FEOC restriction, understanding when an input falls within the definition of battery material versus battery component or constituent material is important. This analysis predominantly turns on whether the specific input is “manufactured” or “assembled” which could make it a battery component versus being “processed” which makes it a battery material. The Final Regulations in §1.30D-2 define each of these terms as follows:
Assembly: Assembly, with respect to battery components, means the processing of combining battery components into battery cells and battery modules.
Manufacturing: Manufacturing, with respect to battery component, means the industrial and chemical steps taken to produce a battery component.
Processing: Processing means the non-physical processes involved in the refining of non-recycled substances or materials, including the treating, baking, and coating processes used to convert such substances and materials into constituent materials. Processing includes the chemical or thermal processes involved in refining. Processing does not include the physical processes involved in refining. [Fix formatting.]
5. Definition of “Battery Components” for FEOC Restriction
Several commenters discussed the relationship between the Battery Components Requirement and the FEOC restriction. As noted in the explanation to the December 2023 proposed regulations, Treasury and the IRS intend that terms relevant to both the Critical Minerals and Battery Components Requirement and the FEOC restriction be interpreted consistently. Consistent with that, the Final Regulations include one general “battery component” definition for section 30D purposes and do not adopt a comment suggesting a broader definition for the FEOC restriction. Treasury also stated that the definition of battery components is limited to only “items that contribute to electrochemical energy storage.”
6. Constituent Materials
Proposed Treasury regulation sections 1.30D-3(c)(6) and 1.30D-6(a)(8) defined “constituent materials” as materials containing applicable critical minerals that are employed directly in manufacturing battery components. Constituent materials could include powders of cathode or anode active materials, foils, metals for solid electrodes, binders, electrolyte salts, and electrolyte additives. The “constituent materials” definition distinguishes the extraction, processing, and recycling steps for critical minerals from the subsequent manufacturing and assembly of battery components. Constituent materials are the final products relevant for calculating the value of applicable critical minerals in the battery.
The Final Regulations adopt the “constituent materials” definition from the proposed regulations, consolidate it into Treasury Regulation section 1.30D-2(b), and clarify that battery materials without applicable critical minerals are not constituent materials. Foils and PVDF not made from an applicable critical mineral would be considered battery materials without applicable critical minerals. Lithium hexafluorophosphate produced from an applicable critical mineral and integrated into a battery component would be a constituent material. CMC made from wood pulp or linter pulp and not containing an applicable critical mineral would not be a constituent material.
One commenter requested clarification on powders of cathode active materials (CAM), noting the list does not include precursor materials for making CAM or other intermediate materials incorporating the critical minerals used to produce CAM. The Final Regulations clarify in the “applicable critical mineral” definition that Critical Minerals Requirement and FEOC restriction determinations take into account each extraction, processing, or recycling step through the step where the mineral is processed or recycled into a constituent material. Thus, these precursor or intermediate materials are relevant for both requirements.
7. Non-traceable Battery Materials / Impracticable-to-trace Battery Materials
Treasury and the IRS received numerous comments on the definition of “non-traceable battery materials” and the related FEOC restriction transition rule for such materials. Consistent with the expectation and requirement that OEMs will develop thorough tracing processes in the future, even while such processes do not currently exist, the Final Regulations retain the list but change the name to “impracticable-to-trace battery materials.” After considering extensive comments, the final list includes: graphite in anode materials, and applicable critical minerals in electrolyte salts, electrode binders, and electrolyte additives. Notably, graphite was added to the list, based on comments regarding the difficulty of tracing it due to commingling of natural and synthetic graphite, and challenges tracing synthetic graphite back to the petroleum coke and oil extraction steps.
This definition is relevant to the FEOC restriction because it identifies a subset of applicable critical minerals that may be difficult for manufacturers to trace to their origin to determine FEOC compliance. The Final Regulations provide a temporary transition rule, discussed below, that allows manufacturers to exclude these impracticable-to-trace materials from the FEOC determination for vehicles placed in service before January 1, 2027, provided they submit a report detailing how they will comply with the FEOC rules once the transition period ends.
8. Recycling
The Final Regulations consolidate the “recycling” definition from the proposed regulations into Treasury Regulation section 1.30D-2(b), defining it as the series of activities during which recyclable materials containing applicable critical minerals are transformed into specification-grade commodities and consumed in lieu of virgin materials to create new constituent materials contained in the clean vehicle battery. All physical, chemical, and thermal treatments or modifications converting recycled feedstocks to specification-grade constituent materials are included.
Recycled applicable critical minerals and associated constituent materials are only subject to the requirements under Treasury Regulation sections 1.30D-3 and 1.30D-6 if the recyclable material contains an applicable critical mineral, contains material transformed from an applicable critical mineral, or is used to produce an applicable critical mineral during recycling. The requirements only take into account activities undertaken during the recycling process.
The Final Regulations add an example illustrating which activities are considered for recycling under the Critical Minerals Requirement and FEOC restriction.
B. FEOC Restriction
The Final Regulations provide definitions relevant to the FEOC restriction and substantive FEOC rules. We focus on new or modified definitions and rules in the Final Regulations relevant to the FEOC restriction.
1. Due Diligence and Transition Rule for Non-traceable Battery Materials
a) Due diligence
The Final Regulations adopt the due diligence requirements from the proposed regulations with some clarifications and modifications in response to comments. Under Treasury Regulation section 1.30D-6(b)(1), qualified manufacturers must conduct due diligence on all battery components and applicable critical minerals (and associated constituent materials) that are relevant for determining FEOC compliance. This due diligence must meet industry standards for battery material tracing available at the time of attestation or certification to enable the qualified manufacturer to know the provenance of the minerals, materials and components with reasonable certainty. The Final Regulations clarify that reasonable reliance on a supplier attestation or certification constitutes due diligence if the qualified manufacturer does not know or have reason to know it is incorrect. In response to comments, this reasonable reliance rule is extended to upstream suppliers conducting due diligence under Treasury Regulation section 1.30D-6(c)(5).
The due diligence must be conducted before the qualified manufacturer provides any information to establish the compliant-battery ledger under Treasury Regulation section 1.30D-6(d) and must continue on an ongoing basis. A battery is not considered FEOC-compliant unless the manufacturer has performed this due diligence on all relevant components and minerals and provided the required attestations or certifications.
b) Transition rule for impracticable-to trace-battery materials
The Final Regulations provide a temporary transition rule allowing qualified manufacturers to satisfy the FEOC due diligence requirements by excluding certain hard-to-trace materials through the end of 2026. Specifically, for new clean vehicles for which the manufacturer submits a written report before January 1, 2027, the due diligence requirement may be met by excluding “identified impracticable-to-trace battery materials” and their associated constituent materials. Similarly, these impracticable-to-trace materials may be excluded when determining if a battery cell is FEOC-compliant during the transition period.
To utilize this transition rule, manufacturers must submit a report during the upfront review process detailing how they will comply with the FEOC restrictions after the transition period ends, and all materials must be fully traced through the EV battery supply chain. This report must include information on efforts to date to secure FEOC-compliant battery supplies, such as supplier engagements, offtake agreements, and contracts with domestic or compliant suppliers.
2. FEOC Compliance
The Final Regulations generally adopt the proposed rules for determining FEOC compliance of battery components, cells, and applicable critical minerals (and associated constituent materials), with some modifications in response to comments. The general rule requires physical tracking of these items to make FEOC compliance determinations.
The proposed regulations allowed an exception to physical tracking for battery cells, permitting an allocation-based determination of FEOC compliance by allocating the available mass of FEOC-compliant critical minerals and constituent materials to specific cells produced in a facility, without physically tracking the mass of those minerals and materials to specific cells. However, the proposed regulations made this allocation-based approach a temporary rule available only for vehicles for which the manufacturer submits a written report before January 1, 2027.
After considering the comments and consulting with the DoE, Treasury and the IRS agreed that de-comingling supply chains by 2027 may be difficult, and that tracking individual masses of critical minerals through the supply chain to determine FEOC compliance would be impracticable. Moreover, allocation-based accounting serves the statutory purpose by encouraging manufacturers and suppliers to ensure secure supply chains, as the number of vehicles produced is constrained by the supply of the least FEOC-compliant critical mineral. Therefore, the Final Regulations make the allocation-based compliance determination for battery cells a permanent rule.
However, the Final Regulations do not adopt comments requesting the allocation consider total aggregated mass of FEOC-compliant critical minerals, rather than limiting compliant cells based on the critical mineral with the lowest percentage of FEOC-compliant supply. The agencies found this approach inconsistent with the purposes of the FEOC rules, as it could deem cells compliant based on aggregate compliant minerals, even if one mineral was 0% FEOC-compliant. The Final Regulations also decline to require full mass balance accounting across entire supply chains given manufacturers’ inability to implement such robust tracking in the near term.
3. Compliant-Battery Ledger
The Final Regulations adopt the proposed rules requiring qualified manufacturers to establish a compliant-battery ledger for each calendar year starting with vehicles placed in service after December 31, 2024. Manufacturers must determine and provide information to the IRS to establish the ledger, which tracks the number of FEOC-compliant batteries for the calendar year. Manufacturers may establish one ledger for all vehicles or separate ledgers for specific vehicle models or classes. The Final Regulations maintain the proposed compliant-battery ledger requirements while the agencies continue engaging with industry to refine the upfront review process that operationalizes the ledger.
4. Rule for New Qualified Fuel Cell Motor Vehicles
The Final Regulations clarify that the FEOC restrictions do not apply to new qualified fuel cell motor vehicles. This is because fuel cell vehicles do not contain a clean vehicle battery, and therefore do not have the applicable critical minerals or battery components that would subject them to the FEOC rules. However, the Final Regulations note that a qualified fuel cell motor vehicle that also has a clean vehicle battery, such as a plug-in hybrid fuel cell electric vehicle, would still be subject to the FEOC restrictions due to the presence of the clean vehicle battery.
Although the Final Regulations and DoE guidance declined to make a number of changes suggested in comments submitted to Treasury regarding the FEOC criteria for the BIL’s battery grant programs, the changes that were made were largely favorable and should be welcomed by prospective grant applicants.
1 Unless otherwise specified, all “section” or “§” references are to the Internal Revenue Code of 1986, as amended (Code) or the Income Tax Regulations (26 CFR part 1).
2 These proposed regulations remained silent on the “foreign entity of concern” criteria. See Mayer Brown Legal Update, US Treasury Issues Proposed Regulations on Section 30D Clean Vehicle Credit and Critical Mineral Components. As such, we previously looked at the interpretation of the term by the Department of Commerce under the Creating Helpful Incentives to Produce Semiconductors and Science (“CHIPS”) Act to speculate on where the Treasury will potentially land. See Mayer Brown Legal Update, Final CHIPS Act Regulations May Provide Insight into Definition of a “Foreign Entity of Concern” in the Inflation Reduction Act and the Infrastructure Investment and Jobs Act.
3 See Mayer Brown Legal Update, Biden Administration Provides More Flexible Options for Meeting Foreign Entity of Concern (FEOC) Criteria for Clean Vehicle Tax Credit.
