Four tiers. Tier 1: operative and enforceable. Tier 2: issued guidance with material gaps that prevent full compliance planning. Tier 3: pending with known timelines. Tier 4: structurally unknowable from public sources. Every entry cites the source document. When status is inferred rather than directly stated, that is marked. When information is not publicly available, the date of last verification is given.
Open this before modeling §45X eligibility, calculating a landed-cost stack, or qualifying a sourcing route for 2027 vehicle programs.
Tier 1: Operative and Enforceable
§45X Advanced Manufacturing Production Credit — PFE Material Assistance Restrictions IRC §45X(c)(1)(A)(ii)(C); OBBBA, Pub. L. 119-21 (2025-07-04). Effective for calendar-year taxpayers: 2026-01-01. Operative. Eligible components produced with material assistance from a prohibited foreign entity do not qualify for §45X. The material assistance cost ratio (MACR) threshold is 60% non-PFE direct material costs for CY2026, rising 5 percentage points annually to 85% by 2031. Separate thresholds apply to §48E energy storage technologies (55%) and §45Y qualified facilities (40%). Source: IRS Notice 2026-15, released 2026-02-12; published in IRB 2026-11, dated 2026-03-09.
§30D Clean Vehicle Credit — FEOC Compliance Requirements 26 USC §30D(d)(7); Final Regulations T.D. 9995 (May 2024); 26 CFR §1.30D-6. Operative. Vehicles placed in service after 2024-12-31 must satisfy both the critical minerals requirement (§30D(e)) and the battery component requirement (§30D(f)), each of which excludes FEOC-sourced content. Vehicles failing either test lose the corresponding $3,750 credit half. The OBBBA (Pub. L. 119-21) phases out the §30D consumer EV credit for vehicles placed in service after certain dates, but the FEOC compliance framework remains operative for the duration of the credit's availability. The graphite traceability exemption (see Tier 3 elevation) is an exception within this framework.
Section 301 Tariffs — EV Lithium-Ion Battery Cells (HTS 8507.60) USTR Final Rule, Federal Register, Sept. 2024. Effective: 2024-09-27. Operative. 100% ad valorem on Chinese-origin EV lithium-ion battery cells. This rate is why direct Chinese EV cell imports are commercially negligible and why the BESS tariff stack below is the operative import channel question.
Section 301 Tariffs — Non-EV Lithium-Ion Batteries (HTS 8507.60.00) Same USTR Final Rule. Effective: 2026-01-01. Operative, legally durable. 25% ad valorem on Chinese-origin non-EV lithium-ion batteries, including grid-scale BESS cells and modules. Section 301 authority (Trade Act of 1974) was unaffected by the February 2026 Supreme Court ruling striking down IEEPA-based tariffs.
Section 301 Tariffs — Natural Graphite (HTS 2504; 3801) Same USTR Final Rule. Effective: 2026-01-01. Operative. 25% ad valorem on Chinese-origin natural graphite.
Section 301 Tariffs — Permanent Magnets (HTS 8505.11) Same USTR Final Rule. Effective: 2026-01-01. Operative. 25% ad valorem on Chinese-origin permanent magnets.
Section 122 Temporary Global Tariff Proclamation No. 11012 (2026-02-20). Effective: 2026-02-24. Being collected, legally contested. 10% ad valorem on most imports. The CIT ruled the tariff unlawful on 2026-05-07 (2-1 decision). The CAFC entered an administrative stay on 2026-05-12, suspending the injunction. CIT denied the government's stay motion on 2026-05-22, but the CAFC stay supersedes. Most importers are still paying. Statutory expiry: 2026-07-24 unless extended by Congress.
Effective Tariff Stack — Chinese-Origin BESS Cells, as of 2026-05-23
| Layer | Rate | Authority | Status |
|---|---|---|---|
| MFN base (HTS 8507.60.00) | 3.4% | HTSUS | Permanent |
| Section 301 | 25% | Trade Act of 1974 | Operative, legally durable |
| Section 122 | 10% | Proclamation 11012 | Collected under CAFC stay; expires 2026-07-24 |
| Total (current) | ~38.4% | ||
| Post-2026-07-24 (absent new action) | ~28.4% |
Note: containerized BESS systems may classify under the same HTS code as standalone cells, but verify CBP classification for specific product configurations.
ITC Negative Injury Finding — Chinese Active Anode Material USITC final determination, March 2026. The Commission found no material injury or threat thereof to a domestic industry. No antidumping or countervailing duties imposed. See ITC anode AD/CVD coverage elsewhere in this issue for full analysis.
BTR New Material — FEOC Designation Designated as a foreign entity of concern by DOE in January 2025, with designation extended to overseas subsidiaries. Predates the OBBBA PFE framework; BTR's status under the post-OBBBA §7701(a)(51) PFE definition has not been separately confirmed in public sources. See BTR New Material coverage elsewhere in this issue for designation basis and supply chain implications.
Tier 2: Issued Guidance with Material Gaps
The guidance below has been published. The gaps govern near-term compliance planning more than the published text does.
IRS Notice 2026-15 — MACR Calculation Methodology IRS Notice 2026-15, released 2026-02-12; IRB 2026-11, dated 2026-03-09. Issued: Interim framework for MACR calculation covering direct cost identification, tracing methodology, supplier certification, documentation standards, and optional interim safe harbors. Taxpayers may rely on the notice for §45X until safe harbor tables are published. Deferred: The notice expressly defers proposed regulations on the PFE definition under §7701(a)(51), including the 25% single-owner and 40% aggregate ownership thresholds, the 15% debt attribution test, governance and veto rights, and the broader scope of "effective control." No proposed regulations, safe harbor tables, or follow-up notices have been issued between the 2026-03-30 comment deadline and 2026-05-23. Verified by absence from IRS IRBs and Federal Register through research date. Decision impact: Producers can calculate their MACR using the interim methodology. They cannot definitively determine whether specific upstream suppliers qualify as PFEs.
IP/Licensing Effective Control Provision OBBBA §7701(a)(51)(D)(ii); IRS Notice 2026-15, Section 5.
Any US battery facility operating under technology licensed from a covered foreign entity faces potential §45X, §45Y, or §48E credit disqualification. Recapture exposure extends up to 10 years for §48E investment tax credits. No operative criteria have been published.
Notice 2026-15 states that Treasury and IRS intend to treat any payment to a specified foreign entity under an IP licensing agreement (entered into or modified on or after 2025-07-04) as conferring "effective control," classifying the taxpayer as a foreign-influenced entity and therefore a PFE. The facility or component would be disqualified from §45X, §45Y, or §48E credits.
No operative criteria for when contractual arrangements confer effective control have been published. The notice states intent; proposed regulations will provide the binding methodology. No publication date has been announced.
This provision applies to any US battery facility operating under technology licensed from a Chinese, Russian, North Korean, or Iranian entity (or entities meeting FIE thresholds). Facilities with pre-existing licensing arrangements that are renegotiated, amended, or extended after 2025-07-04 face potential disqualification. Multiple specialist tax counsel confirm the notice's language but note the absence of operative criteria. If you are operating under a licensing arrangement with a covered entity, this is a live uncertainty with binary credit eligibility consequences, operative now as a chilling effect on licensing negotiations even as enforcement criteria remain pending.
§45X(d)(4) FIE-Specific Provisions — Gap Period OBBBA §45X(d)(4); Miller & Chevalier analysis, Aug. 2025. The OBBBA created two effective dates within §45X(d)(4). PFE material assistance restrictions apply to taxable years beginning after 2025-07-04. Certain FIE-specific provisions apply to components sold in taxable years beginning after 2026-12-31. In CY2026, a producer must comply with the broader PFE/MACR rules, but entities that would be classified as foreign-influenced entities under the full §45X(d)(4) criteria may not trigger disqualification until CY2027. Map compliance obligations to the specific provision and its effective date.
Tier 3: Pending with Known Timelines
▶ Elevated: FEOC Graphite Exemption Expiry — 2026-12-31
The exemption allowing exclusion of graphite from §30D FEOC compliance expires 2026-12-31. No extension has been proposed, announced, or signaled. Procurement decisions for 2027 vehicle programs made today must assume the exemption lapses.
The exemption allowing EV manufacturers to exclude graphite and certain critical minerals from §30D FEOC compliance determinations expires December 31, 2026. No extension has been proposed, announced, or signaled in any public Treasury, IRS, or DOE communication as of 2026-05-23.
Graphite sourcing becomes a compliance-gating constraint on 2027-01-01. Any vehicle whose battery contains graphite that cannot be traced to non-FEOC sources loses §30D eligibility (to the extent §30D remains available under OBBBA). Anode-grade graphite processing is overwhelmingly concentrated in China. The domestic and allied-nation anode material capacity that the policy architecture assumed would exist by this date largely does not. Syrah Vidalia, the only US-scale active anode material facility, is under commercial distress with its Tesla offtake under dispute (see coverage elsewhere in this issue). The ITC's March 2026 negative injury finding on Chinese AAM removed the trade protection mechanism that might have supported alternative domestic buildout.
The constraint compounds starting 2027-01-01. A cell producer sourcing graphite anode material from a PFE faces MACR threshold risk under §45X at the same time their OEM customer faces §30D FEOC disqualification. The producer's credit and the customer's credit are both at risk from the same upstream sourcing gap.
The qualification window is closing or closed. Qualifying a non-FEOC graphite supply chain requires 12–18 months of supplier qualification. Procurement decisions for 2027 vehicle programs made today must assume the exemption lapses.
What would change this assessment: Publication of an extension notice by Treasury/IRS; Congressional action amending the expiry date; issuance of an alternative compliance pathway in forthcoming proposed regulations. None has been signaled.
Safe Harbor Tables — Statutory Deadline 2026-12-31 IRC §7701(a)(52), as amended by OBBBA. Not published. The statute requires Treasury to publish safe harbor tables assigning cost percentages for MACR calculation by 2026-12-31. No draft tables, proposed methodology, or interim guidance on table structure has been issued. The reliance period for §45X producers under Notice 2026-15 extends until publication.
Section 122 Tariff Expiry — 2026-07-24 Trade Act of 1974, §122; Proclamation 11012. The 10% surcharge expires by statutory limit on 2026-07-24 unless Congress acts. No extension legislation identified. The effective tariff on Chinese BESS drops from approximately 38% to approximately 28% on that date absent new action.
New Section 301 Investigation USTR, launched 2026-03-11. USTR opened a new Section 301 investigation targeting Chinese "excess capacity" that could yield additional tariffs before year-end. Multiple sources indicate USTR may expedite the investigation as the Section 122 measure expires. No proposed rate schedule or product scope has been published.
Proposed Regulations on PFE Definition Announced in IRS Notice 2026-15. No publication date announced. No proposed rule has appeared in the Federal Register as of 2026-05-23. These regulations will provide the operative methodology for PFE status under §7701(a)(51), including ownership thresholds, debt attribution, effective control criteria, and the IP/licensing provision described in Tier 2. Until they publish, every PFE determination is provisional.
Tier 4: Structurally Unknowable from Public Sources
No disclosure mechanism, public registry, or enforcement transparency covers these gaps. Better research will not close them. They are the landscape.
§45X Credit Claims by Facility No public registry exists. Claims surface only in individual company filings, and most producers do not disclose. Known data points as of 2026-05-22:
| Company | Period | Amount | Source Type | Source |
|---|---|---|---|---|
| LG Energy Solution | Q1 2026 | Earnings release, estimated | LGES Q1 2026 press release, 2026-04-29 | |
| Samsung SDI | Q1 2026 | Analyst estimate, not company-confirmed | NH Investment & Securities via Asia Business Daily | |
| SK On | Q1 2026 | Not disclosed | No public disclosure identified | — |
| Panasonic Energy | Q1 2026 | Not disclosed | No public disclosure identified | — |
Companies may be claiming §45X credits without disclosing. No mechanism requires or enables public reporting at the facility level. The gap is structural.
Effective Tariff Rate on Chinese BESS After 2026-07-24 Depends on whether Congress extends Section 122, the timing and scope of the new Section 301 investigation, and the outcome of the CAFC appeal. No public information resolves any of these as of 2026-05-23. Model against a range: 28% (Section 301 only) to 50%+ (if new Section 301 action adds a significant increment).
PFE Designation Outcomes for Specific Entities The ownership thresholds (25% single-owner, 40% aggregate), debt attribution test (15%), and effective control criteria are statutory but lack operative guidance. Until proposed regulations on §7701(a)(51) are issued, it is not possible to determine from public sources whether a specific upstream supplier, licensor, or JV partner meets the PFE definition. Facility-specific eligibility assessments require non-public corporate structure data and specialist tax counsel analysis.
State Incentive Clawback Status for Dissolved JVs When a JV sells for $100 or dissolves, clawback provisions in state economic development agreements may be triggered. These agreements are rarely accessible online. Relevant for: NextStar (Ontario/federal Canadian incentives, post-LGES acquisition); BlueOval SK (multiple state packages, post-dissolution); StarPlus Energy (Indiana incentives, BESS pivot; Stellantis had not exited its ownership stake as of early 2026). No public disclosure of clawback enforcement or waiver identified. Last verified: 2026-05-23.
DOE LPO Portfolio Exposure The Loan Programs Office portfolio includes closed loans to facilities whose underlying commercial assumptions have materially changed. At least two facilities with publicly disclosed commercial distress have closed DOE loans: BlueOval SK (JV dissolved) and Syrah Vidalia (DOE $102M loan under forbearance, Tesla offtake under dispute). Whether forbearance terms, covenant modifications, or termination rights have been exercised across the broader portfolio is not systematically disclosed. No portfolio-level risk assessment is publicly available.
Using This Reference
Current as of 2026-05-23. Four items will change the landscape materially before year-end:
- Section 122 expiry — 2026-07-24
- FEOC graphite exemption expiry — 2026-12-31
- Safe harbor table publication deadline — 2026-12-31
- New Section 301 investigation outcome — timeline uncertain, potentially expedited to coincide with Section 122 lapse
Any sourcing decision, §45X eligibility model, or landed-cost calculation built today should be stress-tested against all four.
When this document says a status is "not publicly available," that is the status. Do not infer from silence.
Things to follow up on...
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AESC Fixx Energy divestiture: The FEOC-motivated sale of AESC's Tennessee facility to US-named Fixx Energy raises an unresolved question about whether Fixx's ownership structure actually qualifies as non-FEOC, a determination that cannot yet be made from publicly available corporate filings.
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Section 122 refund mechanics: Importers who paid IEEPA-based tariffs between April 2025 and February 2026 are now eligible for refunds through CBP's CAPE portal, and Gibson Dunn's analysis of the CAFC appeal timeline suggests the Section 122 collection status could shift again before the July 24 statutory expiry.
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LGES North American ESS ramp: LG Energy Solution's claim of more than 50 GWh North American production capacity by year-end 2026 has not been verified by third-party output data, though its Q1 2026 earnings release disclosed KRW 189.8 billion in estimated production incentives as a partial signal of actual output.
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SK On post-Westwater termination: SK On's March 31, 2026 termination of its procurement agreement with Westwater Resources removes another potential domestic anode supply route, a development reported by Westwater that compounds the sourcing gap exposed by the ITC's negative injury finding.