“$625 million was a direct financial benefit to the coal industry,” noted moderator Mark Crowdis, CEO of 127 Energy, describing recent policy moves forcing uneconomic coal plants to continue operating. “We are in weird times.”
Against this backdrop, industry professionals filled Tuesday morning’s policy session, Policy Shifts in Motion: HR1, Trade Rules, and the New Reality for Renewables, at Intersolar & Energy Storage North America (IESNA) Flagship, seeking clarity on two pressing issues: Treasury’s new Foreign Entity of Concern guidance and ongoing anti-dumping/countervailing duty investigations targeting solar imports.
The panel brought together Carolina Nunez Barrera, head of legal and compliance at BayWa r.e. Americas; Peggy Hock, director of utility scale project sales at JA Solar USA; Timothy Brightbill, partner at Wiley Rein; and Christian Roselund, senior policy analyst at Intertek CEA.
When attendees registered their top concerns via a pre-session poll, FIOC restrictions dominated, followed by tariffs and grant reductions.
FIOC Guidance: Clarity with Caveats
Treasury’s January guidance established compliance pathways for developers navigating FIOC restrictions: conduct thorough supplier due diligence or obtain supplier certifications. But the certification route raises concerns about liability.
“Will these suppliers be willing to give this certification? Because it has a tremendous impact on the liability of the parties. The liability is shifted to the supplier,” Nunez Barrera said.
Roselund highlighted an unexpected benefit in the yet-to-be-proposed regulations: “If you’re using a manufactured product component that’s not FIOC, even in a manufactured product made by a prohibited foreign entity, you still get to claim that value. That’s huge,” particularly given that cells are “the biggest piece of the pie” in photovoltaic domestic content calculations.
Brightbill warned against transactions that shift ownership temporarily and noted that Treasury will propose additional regulations to prevent circumventing restrictions. All panelists stressed the need for third-party reviews, even for U.S.-located private companies.
“Start yesterday if you are not doing this work with your suppliers and tax counsel,” Nunez Barrera advised. “We don’t want to have the surprise once we are close to start construction.”
Trade Cases: Duties and Deadlines
Brightbill announced that preliminary countervailing duty determinations for “Solar IV” cases targeting Indonesia, India, and Laos are due February 20, with Commerce Department announcements expected Monday. Preliminary dumping determinations follow around April 21, with final decisions in September or October.
The immediate concern is critical circumstances—a provision allowing retroactive duties up to 90 days before preliminary determinations. “Goods coming in right now from these countries are potentially covered,” Brightbill explained, noting import surges particularly from Indonesia.
India faces severe consequences. “Indian companies have not been participating in these reviews, so they are very likely to be penalized with high dumping margins,” Brightbill said. Roselund added that adverse facts available should result in “extremely high duties on India almost immediately.”
The Manufacturing Capacity Debate
Roselund offered a data-driven assessment challenging the effectiveness of trade cases: “It is very hard to show with data that anti-dumping and countervailing duty cases have led to an increase in U.S. manufacturing capacity.” Significant growth only materialized after the Inflation Reduction Act’s Section 45X production tax credits.
“We now have more manufacturing capacity in modules than we do market demand,” Roselund said, though cell manufacturing remains the bottleneck with only 10 gigawatts currently operational and 20 gigawatts importing equipment.
The timing creates vulnerability. “Over the next 18 months, we’re going to get a lot more cell, but in this next 18 months, there’s not ample supply of cell in the United States.”
His analysis of Commerce Department patterns was sobering: Government Accountability Office data shows an 88% chance that Commerce will find dumping and subsidization once a case is filed. “The writing is on the wall,” Roselund said.
Strategic Imperatives
The session concluded with clear action items for developers and buyers:
On FIOC compliance:
- Engage third-party reviewers for supplier audits immediately
- Work closely with tax counsel on documentation requirements
- Understand that domestic location doesn’t guarantee non-FIOC status
- Prepare for supplier reluctance on certifications due to liability shifts
On trade cases:
- Expect preliminary duties on Indonesia, India, and Laos by late February
- Prepare for potential retroactive duties on recent imports
- Diversify sourcing away from countries under investigation
- Monitor the 20 gigawatts of domestic cell capacity coming online over 18 months
As Crowdis framed it in his opening, navigating these “weird times” requires staying informed and collaborative. With policy shifting rapidly—from coal subsidies to FIOC restrictions to evolving trade cases—the only certainty is continued regulatory complexity.