Sec. 101. Foreign pollution fee
7,967 words·~36 min read·
/bill/118/s/3198/is/section-101A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Chapter 38 of the Internal Revenue Code of 1986 is amended by adding at the end the following new subchapter: Sec. 4691. Imposition of foreign pollution fee. Sec. 4692. Determination of variable charge. Sec. 4693. Calculation of pollution intensity. Sec. 4694. Treatment of international partnerships. Sec. 4695. Covered products. Sec. 4696. National Laboratory Advisory Board on Global Pollution Challenges. Sec. 4697. Definitions. Sec. 4698. Establishment process and reassessments.
In the case of any covered product which is imported by a covered entity into the United States after the applicable date, there is hereby imposed a fee upon entry or importation of such covered product in an amount equal to the product of— the amount of such covered product which is imported into the United States, and the variable charge (as determined under section 4692). For purposes of paragraph (1), the applicable date shall be the date which is 36 months after the date of enactment of this subchapter.
With respect to any covered product produced in a low-income country or lower-middle-income country, the Secretary may extend the applicable date under such clause for a period of not greater than 12 months if the United States Trade Representative issues a certification to the appropriate congressional committees that such country is making progress towards an international partnership agreement. The fee imposed under this section with respect to any covered product shall be paid by the covered entity which imported such product at the same time, and through the same electronic portal, that any payment of custom duties are made.
The Secretary may issue such regulations or other guidance to require, or may direct officers of U.S. Customs and Border Protection to require, a covered entity to file with the Secretary a bond or other security in such amount and with such conditions as the Secretary determines necessary to ensure payment of the fees imposed under this section. The amount of any covered product which is imported into the United States shall be determined by the measure ordinarily used in the course of trade of such covered product (as determined pursuant to the 6-digit HTS subheading number with respect to such product).
The Commissioner of U.S. Customs and Border Protection shall allow payment of the fee imposed under this section for such product to be paid by the covered entity in the same manner in which payment of custom duties are made. The variable charge is an ad valorem fee which is specific to a covered product and determined pursuant to the tier to which such covered product is assigned. Tiers for covered products shall be established as follows: For covered products for which the pollution intensity difference is greater than 10 percent and not greater than 50 percent, tiers shall be established at each 5-percentage-point increment.
For covered products for which the pollution intensity difference is greater than 50 percent and not greater than 200 percent, tiers shall be established at each 10-percentage-point increment. For covered products for which the pollution intensity difference is greater than 200 percent, tiers shall be established at each 20-percentage-point increment. The purposes of the tiers under this section are as follows: To provide for a standardized organization model for each covered product to allow for proper implementation and application of the fee imposed under section 4691, with such tiers to be based on the different pollution intensities for a given covered product based on the country of origin of such covered product (or, subject to section 204 of the Foreign Pollution Fee Act of 2023 , the manufacturer of such covered product).
To allow for determinations of the variable charge under this section in relation to the tiers in a manner which is specific to the covered product. In accordance with paragraph (1), tiers shall be established for each covered product, with the variable charge assigned to each tier in a manner which is consistent with achieving the goals described in subsection (c)(2) with respect to such covered product. The variable charge assigned to a particular tier for a covered product shall not be used to determine the variable charge assigned to the same tier for a different covered product.
Each covered product shall be assigned to the applicable tier which corresponds to the pollution intensity difference with respect to such covered product. The variable charge assigned to each tier for a covered product shall be specific to the achievement of the goals in paragraph (2). During the 6-year period beginning after the applicable date described in section 4691(a)(2) (or, in the case of any covered product added pursuant to subsection
(d)or
(e)of section 4695, the 6-year period subsequent to the date described in subsection
(f)of such section), the goal utilized for establishment of the variable charge with respect to any covered product shall be— in the case of any covered product for which the average pollution intensity difference is greater than 50 percent, to alter trade flows such that the average pollution intensity difference associated with such covered product is not greater than 50 percent, in the case of any covered product for which the average pollution intensity difference is greater than 25 percent and not greater than 50 percent, to alter trade flows such that the average pollution intensity difference associated with such covered product is not greater than 25 percent, and in the case of any covered product for which the average pollution intensity difference is not greater than 25 percent, to alter trade flows such that the average pollution intensity difference associated with such covered product is not greater than 10 percent. During the 6-year period subsequent to the initial 6-year period described in subparagraph (A), the goal for establishment of the variable charge with respect to any covered product shall be— in the case of any covered product which, for the initial 6-year period described in such subparagraph, was described in clause
(i)of such subparagraph, to alter trade flows such that the average pollution intensity difference associated with such covered product is not greater than 25 percent, in the case of any covered product which, for the initial 6-year period described in such subparagraph, was described in clause
(ii)of such subparagraph, to alter trade flows such that the average pollution intensity difference associated with such covered product is not greater than 10 percent, and in the case of any covered product which, for the initial 6-year period described in such subparagraph, was described in clause
(iii)of such subparagraph, to maintain achievement of the goal described in such clause. For any year subsequent to the period described in subparagraph (B), the goal for establishment of the variable charge with respect to any covered product shall be to alter trade flows such that the average pollution intensity difference associated with such covered product is not greater than 10 percent. To the maximum extent practicable, the variable charges assigned to each tier of a covered product to achieve the goals described in paragraph
(2)shall progress through each tier in a manner consistent with an increasing linear interpolation of the variable charge. With respect to any tier for a covered product and the variable charge assigned to such tier, the Board may recommend and the Secretary may finalize a variable charge that deviates from a linear interpolation of the variable charge as described in subparagraph (A), provided that such alteration allows for a higher likelihood that the goals described in paragraph
(2)will be attained. For purposes of this subsection, any variable charge shall be established in a manner which ensures that the goals described under paragraph
(2)are attained while minimizing any potential increase in domestic costs. In the case of any covered product for which the pollution intensity difference is not greater than 10 percent, the variable charge shall be zero. In the case of any covered product for which the Secretary determines there is not sufficient domestic production with respect to such product, the variable charge shall be zero. For purposes of this paragraph, the term sufficient domestic production means any covered product for which an equivalent product which is produced by domestic producers within the United States constitutes greater than the applicable percentage of domestic consumption of such product. For purposes of clause (i), the applicable percentage shall be equal to— 5 percent, or in the case of any covered product described in subclause (II), such percentage below 5 percent as is determined appropriate by the Secretary. A covered product described in this subclause is a product— which the Secretary, in consultation with the United States Trade Representative, has determined requires an applicable percentage below 5 percent for purposes of supporting— national security, prevention of dumping from foreign countries, or development of a domestic industry, or for which, as a result of an international partnership agreement, a country which is a party to such agreement produces not less than 5 percent of United States domestic consumption of such covered product. In the case of any covered product for which no variable charge is imposed under this section pursuant to a determination under subparagraph (A), the Secretary shall— review such determination not less than annually, and if the Secretary's review determines that sufficient domestic production has been attained with respect to such product, terminate application of subparagraph
(A)for such product. This paragraph shall not apply with respect to any product which is included as a covered product pursuant to section 4695(d). The Secretary, in coordination with the Secretary of Defense and the Commissioner of U.S. Customs and Border Protection, may reduce the variable charge to zero for any covered product if the Secretary determines that such product is imported for purposes of fulfilling a contract with— the Department of Defense, or any contractor of the Department of Defense. Any reduction under this subparagraph shall only apply to a covered product— for the period that the contract described in clause
(i)is in effect, and with respect to the quantity of such covered product which is required to fulfill the contract described in such clause. The Secretary shall make public any reduction under this subparagraph with respect to a covered product unless the publication of such information would negatively affect national security. In the case of— any upper-middle-income country, or any country which has entered into a mutual defense treaty or security partnership with the United States, the United States Trade Representative (in consultation with the Secretary of Defense and the Secretary of State) may permit such country to be subject to the requirements applicable to a low-income country or a lower-middle-income country under section 203 of the Foreign Pollution Fee Act of 2023 if completion of an international partnership agreement with such country is determined to assist in the national security or geopolitical positioning of the United States. In the case of any covered product— which is produced in a country with which the United States has a free trade agreement, for which all of the transforming parts or components parts necessary to produce such covered product are produced within— any country with which the United States has a free trade agreement, or the United States, and for which the pollution intensity difference is not greater than 50 percent, the variable charge shall be zero. Subsection
(d)shall not apply to any covered product which is produced in a country which is classified as a nonmarket economy country unless such country— is a low-income country or a lower-middle-income country, and is a party to an international partnership agreement. If the Secretary (in consultation with the United States Trade Representative, the appropriate congressional committees, and any relevant Federal agency) determines that any country is attempting to circumvent application of the fee imposed under section 4691, the Secretary shall adjust the variable charge in such manner is as deemed necessary to offset such circumvention. For purposes of this subsection, circumvention of the fee imposed under section 4691 shall include— artificially decreasing the price for which a covered product is sold, and subsidization to producers within the country of origin to offset such fee. If the Secretary determines that a country is attempting to circumvent application of the fee imposed under section 4691, the Secretary shall publish in the Federal Register— a justification for such determination, the adjusted variable charge applicable to any covered product produced in such country, and the date (not later than 6 months after the date of publication) on which the adjusted variable charge will begin application. For purposes of determining the applicable tiers for covered products under section 4692(b), the Secretary and the Board shall develop consistent methods for calculating the pollution intensity of any covered product which are specific to the country of origin. With respect to any covered product, the pollution intensity of such product shall be expressed based on the average pollution intensity associated with the manufacturing of such product (including point source pollution and upstream pollution) in the country of origin. To the maximum extent practicable, the pollution intensity of a covered product shall be specific to the applicable 6-digit HTS subheading number. In the case of a covered product described in section 4695(a)(4), the pollution intensity of the covered product shall be specific to the applicable 8-digit HTS subheading number. In the case of a covered product (with the exception of a covered product described in section 4695(a)(4)) for which data is not available to determine pollution intensity in a manner specific to the 6-digit HTS subheading number, the Secretary and the Board may determine the pollution intensity based on the applicable 4-digit HTS heading. To the extent necessary for any determination with respect to any covered product, the Secretary and the Board may use— economic, statistical, and engineering models and analysis, pollution monitoring data from facilities, satellites, and other pollution monitoring tools, provided that such data— is publicly available, or is not publicly available but is able to be accessed and verified on a consistent basis by the Secretary or the head of any relevant Federal agency, voluntarily reported data, provided that such data is— a product of monitored emissions, and able to be verified by the Secretary or the Board, the best available information on technology performance levels for the industrial sector that produces such product, and manufacturing and pollution data which is specific to a covered product, including relevant data with respect to the point source pollution and upstream pollution, the industrial sector which is associated with such product, and the country of origin. To the greatest extent possible, in determining baseline pollution intensity, the Secretary and the Board shall give preference to data collected through regulatory reporting methods by the Environmental Protection Agency. To the extent necessary to carry out the purposes of this subchapter, the Administrator may alter the Greenhouse Gas Reporting Program (as established under part 98 of title 40, Code of Federal Regulations) to include the reporting of production from stationary sources regarding— the quantity of any product produced, and the heading, subheading, and statistical reporting number of the HTS under which the product would be classified if the product were imported. The head of every relevant Federal agency shall provide the Secretary and the Board with any information held by or otherwise available to the head of such Federal agency which is relevant to the calculation of pollution intensity. With respect to any information or data relating to operational practices or manufacturing processes of any producer of a covered product which is provided to the Secretary and the Board pursuant to subparagraph (A), unless such information or data is otherwise publicly available, the head of any relevant Federal agency shall take such measures as are necessary to ensure that such information and data is aggregated and anonymized. For purposes of creating a process for calculating the pollution intensity of any covered product under subsection (a), the Secretary and the Board shall— use the best, and most granular, data available in the United States to establish the baseline pollution intensity with respect to such product, and in the case of a covered product produced outside of the United States, base the calculation of the pollution intensity of such product on the process used to establish the baseline pollution intensity for such product. For purposes of calculating the baseline pollution intensity of a covered product, such calculations shall seek to account for differences in pollution intensity due to— varied manufacturing methods, differences in geographic location associated with upstream pollution intensity, and the proportion of manufacturing of such product which is associated with the methods and differences described in subparagraphs
(A)and
(B)relative to total domestic production of such product. Any recycled material (as defined in section 246.101(w) of title 40, Code of Federal Regulations) shall be deemed to have a pollution intensity of zero if recycled (as defined in section 246.101(x) of such title) into— a contributing part, a component part, or a covered product. Any carbon oxide captured from manufacturing processes or from ambient air by the producer of a covered product, or verifiably purchased by the producer of a covered product as an offset from an entity operating carbon capture infrastructure, shall have the effect of reducing the pollution associated with the production of a covered product if such carbon oxide is— utilized in the creation of a contributing part, component part, transforming part, or covered product, utilized to help access a contributing part, component part, transforming part, or covered product that is extracted from a geologic formation, or verifiably sequestered in the country of origin of such product in a manner which provides an accurate accounting of the storage of such carbon oxide. Any carbon oxide utilized or sequestered as described in subparagraph
(A)shall be— treated as a reduction in pollution associated with the production of a covered product based on the total tons of carbon oxide utilized or sequestered, and eligible to offset all forms of pollution based on the relevant carbon dioxide equivalent value. In the case of a covered product described in subparagraph
(B)which contains any covered component part or covered transforming part, to the maximum extent practicable, the pollution intensity of such covered component part or covered transforming part shall be calculated based on— the amount of such covered component part or covered transforming part originating in each country of origin (including the United States) which supply such covered component part or covered transforming part for the covered product, and the pollution intensity associated with production of such covered component part or covered transforming part within the country of origin. For purposes of subparagraph (A), a covered component part or covered transforming part shall not be included if such covered component part or covered transforming part accounts for less than 5 percent of— the total weight of the covered product, the total monetary value of the covered component parts or covered transforming parts contained in the covered product, and the pollution intensity of the covered product (as otherwise determined under such subparagraph). In the case of a petition to include a product which contains any other covered component part or covered transforming part as a covered product under section 4695(d), such petition— shall provide such information as is deemed necessary to make any calculation under subparagraph (A), and may include, at the election of the petitioner, additional calculations to achieve an accurate determination of the pollution intensity of such product which are not tied solely to the pollution intensity of the covered component part or covered transforming part. For the purpose of determining the pollution intensity of any covered product which is produced in a foreign country, if— such product is produced in a facility which is— located in such country, and covered by an agreement established under section 204 of the Foreign Pollution Fee Act of 2023 , and the pollution intensity of the product produced in such facility would otherwise lower the average pollution intensity associated with the production of such product in such country, the pollution intensity of the product produced in such facility shall not be included for purposes of calculating the pollution intensity associated with production of such product in the country of origin. For purposes of determining the pollution intensity values with respect to any country of origin for a covered product, if— the baseline pollution intensity for such covered product was determined utilizing a methodology based on data described in subsection
(c)which was provided at a more localized level, or in more granular detail, than the data available with respect to the country of origin, or due to unavailable or unverifiable data with respect to the country of origin, such determination required estimation through modeling which was not performed for purposes of the calculation of the baseline pollution intensity, the pollution intensity otherwise determined under this section with respect to production of such covered product in such country of origin shall be increased by 20 percent. Any country may provide the Secretary with access to any data necessary to establish an alternative pollution intensity with respect to any covered product. In the case of a country which provides data described in paragraph (1), the Secretary may adjust the pollution intensity with respect to any covered product, provided that the country providing such data— ensures the accuracy of all relevant data for all covered products, provides data at a level of granularity which satisfies the methods established by the Board, and provides the data consistently and in a manner that is verifiable by the Secretary. For purposes of this paragraph, the Board shall assist the Secretary by verifying relevant data and calculating adjustments to pollution intensities. In the case of any pollution intensity with respect to any covered product which is adjusted pursuant to paragraph (2)— the Secretary shall publish such adjustment in the Federal Register, and such adjustment shall take effect in the following calendar year. On or after the date of the first reassessment required under section 4698, the Secretary, in consultation with the United States Trade Representative, may assign a product which is produced by a foreign producer to a tier which is different from the tier determined under section 4692 with respect to the country of origin in which such producer is located if— subsequent to the applicable date (as described in section 4691(a)(2)), such foreign producer has increased production of such product by not less than 5 percent through the establishment of a new production facility or the expansion of an existing production facility, and the increase in production described in subparagraph
(A)results in an increase in pollution intensity associated with production of such product by such foreign producer which is at least 5 percent greater than the pollution intensity associated with production of such product in such country (as determined under paragraph (2)). For purposes of paragraph (1)(B), the pollution intensity associated with production of a covered product in a foreign country shall be equal to the lowest pollution intensity determination with respect to production of such product in such country for any period beginning after the applicable date under section 4691(a)(2). For purposes of paragraph (1), if the Secretary determines that— a foreign producer is owned, operated, or majority financed by— a country (referred to in this paragraph as the base country ) other than the country in which the production facility is located, or an entity which is headquartered in the base country, and the pollution intensity associated with production of the covered product in the base country is greater than the pollution intensity associated with production of such product by the foreign producer, the Secretary shall assign the covered product which is produced by such foreign producer to the same tier determined under section 4692 with respect to production of such covered product in the base country. For purposes of this subsection, the term foreign producer means any producer which is not a domestic producer. In the case of a covered product which is produced in a country which is a party to an international partnership agreement which satisfies the conditions under sections 201 and 202 of the Foreign Pollution Fee Act of 2023 (referred to in this section as a partner country ), no fee under section 4691 shall apply. Section 4693(e) shall not apply to any partner country. The term covered product means articles classifiable under the same 6-digit subheading number of the HTS within one of the following categories: Aluminum classifiable under any of headings 7601 through 7616 of the HTS. Biofuels classifiable under subheading 2207.10 or 2207.20, or heading 3826, of the HTS. Cement classifiable under heading 2523, 6810, or 6811, or subheading 3824.50, of the HTS. Crude oil classifiable under heading 2709 of the HTS. Glass classifiable under any of headings 7001 through 7020 of the HTS. Hydrogen, methanol, or ammonia classifiable under heading 2814 or any of subheadings 2804.10, 2905.11, 3102.10, 3102.30, or 3102.80 the HTS. Iron and steel classifiable under any of headings 7201 through 7326 of the HTS. Lithium-ion batteries classifiable under subheading 8507.60 of the HTS. Minerals classifiable under any of the following headings or subheadings of the HTS: 2504 2825.50 3801.10 2612.10 2827.41 7401 through 7404 2804.69 2833.24 7406 2820.10 2836.91 7501 through 7504 2822.00 2844.10 8105.20 2825.20 2844.20 8105.30 2825.40 2844.30 8111. Natural gas classifiable under subheading 2711.11 or 2711.21 of the HTS. Petrochemicals classifiable under heading 2901 or subheading 2711.14 of the HTS. Plastics classifiable under any of headings 3901 through 3926 of the HTS. Pulp and paper classifiable under any of headings 4701 through 4707 or 4801 through 4813 of the HTS. Refined petroleum products classifiable under any of headings 2710, 2712 through 2715, or 2803 or subheadings 2902.20, 2902.30, or 2902.44, of the HTS. Solar cells and panels classifiable under any of subheadings 8541.42 through 8541.43 or 8501.71 through 8501.80 of the HTS. Wind turbines classifiable under subheading 8502.31 of the HTS. The Secretary shall include, in the final rule required by section 4698, a list of covered products that includes the appropriate heading or subheading of the HTS for each such product. Inclusion of a HTS code under paragraph
(1)shall only apply with respect to a covered product if such product is— described in subsection
(a)and not subject to an exception under section 4692(d)(2), or added pursuant to subsection
(d)or (e). In the case of a naturally occurring covered product which is refined in a manner whereby such product becomes a transforming part for multiple other products (referred to in this paragraph as a resulting product ), the pollution intensity associated with the refining of the naturally occurring covered product shall be divided between the resulting products in a manner consistent with the proportion of the naturally occurring product which is utilized in each resulting product and the quantity of each resulting product. For purposes of this subsection, the term naturally occurring covered product means crude oil or minerals. An eligible entity may submit a petition (or, in the case of more than one eligible entity, may jointly submit a petition) to the Secretary for any product (based on the 6-digit subheading number of the product under the HTS) to be included as a covered product for purposes of this subchapter. For purposes of this subsection, the term eligible entity means, with respect to any product— a domestic producer of such product, trade organizations consisting of producers of such product, labor unions representing individuals employed in the production of such product, and individuals employed in the production of such product. The Secretary may not approve a petition described in paragraph
(1)with respect to any product unless not less than 50 percent of the total annual domestic production with respect to such product is attributable to domestic producers which are represented in such petition. For purposes of determining whether the total annual domestic production requirement under paragraph
(3)has been satisfied, the petitioners may elect whether such determination shall be made on the basis of— net tons of production during the preceding year, or net monetary value of sales of the product during the preceding year. For purposes of subparagraph (A), in the case of a trade organization described in paragraph (2)(B), the total annual domestic production attributable to any domestic producer which is part of such organization shall be included for purposes of determining whether the requirement under such subparagraph has been satisfied. For purposes of subparagraph (A), in the case of a labor union described in paragraph (2)(C) or individuals described in paragraph (2)(D) (referred to in this subparagraph as petitioning employees ), the total annual domestic production attributable to such labor union or the petitioning employees shall be determined based on— the total production of the product during the preceding year by any producer that employs members of such labor union or petitioning employees, and the percentage of the total number of employees of such producers during the preceding year who are members of such labor union or petitioning employees. In the case of more than 1 eligible entity which is included in a petition, the Secretary shall ensure that any production attributable to each such eligible entity is not included in the determination under paragraph
(3)more than once. With respect to any product, the petition described in paragraph
(1)shall include— the applicable HTS code with respect to such product, the eligible entities and the percentage of domestic production represented by such eligible entities, and proposed methods for determination of the pollution intensity with respect to such product. For purposes of paragraph (5)(C), the proposed methods shall— satisfy the applicable requirements under section 4693, utilize existing pollution intensity values for any covered component part, covered contributing part, or covered transforming part contained in the product, and at the election of the petitioner, for purposes of achieving an accurate calculation of pollution intensity, include additional methods to determine the pollution intensity of any component part or transforming part which is not included under subparagraph (B). Not later than 30 days after the date on which the petition described in paragraph
(1)was received by the Secretary, the Secretary shall determine whether the domestic production requirement under such paragraph is satisfied with respect to the product to be included as a covered product. For purposes of subparagraph (A), if the Secretary determines that the domestic production requirement under paragraph
(3)is satisfied with respect to the product— such product shall be included as a covered product for purposes of this subchapter, the inclusion of such product as a covered product shall be published in the Federal Register, and such product shall be subject to the rulemaking process under section 4698(d). Subsequent to any determination under subparagraph
(B)to include a product as a covered product for purposes of this subchapter, the Board shall— review the proposed methods for determination of the pollution intensity with respect to such product (as described in paragraph (5)(C)), and make any adjustments necessary to— ensure compliance with the requirements under section 4693, and account for availability of necessary data and information for such determination. In the case of any mineral which— is not described in subsection (a)(9), and is included on the list of critical minerals published by the United States Geological Survey, the Secretary, in consultation with the United States Trade Representative, may elect to include such mineral as a covered product for purposes of this subchapter. In the case of any mineral which is included as a covered product by the Secretary pursuant to paragraph (1)— the inclusion of such product as a covered product shall be published in the Federal Register, and such product shall be subject to the rulemaking process under section 4698(d). With respect to any product included as a covered product under subsection
(d)or (e), imposition of the fee under section 4691 shall take effect in the first calendar year beginning after the issuance of the final rule described in section 4698(d)(1)(B). There is hereby established the National Laboratory Advisory Board on Global Pollution Challenges (referred to in this subchapter as the Board ). The Board shall— in accordance with section 4693, establish methods of calculating— the baseline pollution intensity, as determined based on production of the covered product in the United States, and the respective pollution intensity for production of such covered product in any foreign country, provide recommendations for rulemaking and reassessments in accordance with section 4698, and provide assistance with regard to subsections
(f)and
(g)of section 4693, as well as any other requests from the Secretary. The chair of the Board (referred to in this section as the Chair ) shall be the Director of the National Energy Technology Laboratory. The deputy chairs of the Board (referred to in this section as the Deputy Chairs ) shall be— the Director of Idaho National Laboratory, the Director of the National Renewable Energy Laboratory, the Director of the Pacific Northwest National Laboratory, and the Chair of the Council of Environmental Quality. In addition to the Chair and Deputy Chairs, the Board shall consist of— 2 representatives from each of the industrial sectors described in paragraphs
(1)through
(16)of section 4695(a), and 1 representative from each relevant Federal agency, as designated by such agency. For purposes of subparagraph (A)(i), each industrial sector described in paragraphs
(1)through
(16)of section 4695(a) shall (pursuant to clause (ii)) designate the representatives to serve for the 36-month period subsequent to the date of enactment of this subchapter. The Secretary shall establish a process by which— an individual who would satisfy the requirements described in subparagraph
(C)can be nominated (including by self-nomination) to serve as a representative on the Board, allows each domestic producer of the relevant industrial sector the opportunity to elect individuals nominated under subclause
(I)to serve on the Board, any representative elected to serve on the Board is designated in a timely manner with respect to relevant rulemakings under section 4698, and a new round of nominations and elections occurs for each reassessment under section 4698(c). For purposes of subparagraph (A)(i), each elected representative shall be the highest ranking officer (or their designee) of a domestic producer which— manufactures a product which is included under paragraphs
(1)through
(16)of section 4695(a), and has annual revenues of greater than $40,000,000. For purposes of any recommendations required to be submitted to the Secretary under subsection (b), not less than two-thirds of the representatives described in paragraph (5)(A)(i) shall be required to approve such recommendation. With respect to carrying out any duties described in paragraph (2), any laboratory described in paragraph
(3)or
(4)may designate staff to assist with such duties. Upon the Board's request, the Administrator, the Secretary of Energy, and the Director of the Office of Science and Technology Policy shall detail, without reimbursement, employees from each agency to assist the Board in carrying out its duties under this section. In any case in which the Board fails to timely transmit a recommendation under section 4698, the Secretary may establish rules, or alter reassessments, required under this section or section 4698 without consultation of the Board. Any recommendation, verification, or report issued by the Board under this section shall not create or give rise to any claim or cause of action. For purposes of this subchapter— The term Administrator means the Administrator of the Environmental Protection Agency. The term appropriate congressional committees means the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives. The term baseline pollution intensity means the pollution intensity associated with production of a covered product in the United States. The term carbon dioxide equivalent means, with respect to a greenhouse gas, the quantity of such gas that has a global warming potential equivalent, determined over a 100-year period, to 1 metric ton of carbon dioxide, as determined pursuant to table A–1 of subpart A of part 98 of title 40, Code of Federal Regulations, as in effect on January 1, 2023. The term component part means, with respect to a covered product, any component which is contained as an independent product utilized in the completed covered product. The term contributing part means, with respect to a covered product, any product which was used in the creation of such covered product in a manner which is consistent with— combustion of such product to provide energy to produce the covered product, or utilization of such product to provide electricity necessary to operate machinery used to create the covered product. The term country of origin means— the country in which a covered product was produced, or the last country in which a covered product was substantially transformed, as determined in a manner consistent with U.S. Customs and Border Protection procedures, directly prior to importation into the United States. The term covered component part means any component part which is itself a covered product. The term covered contributing part means any contributing part which is itself a covered product. The term covered entity means importer of record of a covered product at the time of the importation of such product. The term covered transforming part means any transforming part which is itself a covered product. The term domestic producer means a producer which— has filed their articles of incorporation in the United States, and is not a subsidiary of an entity which is incorporated in a nonmarket economy country. The term export or development financing means financing— for the purposes of— developing international production capacity, or securing the exportation of goods or technology manufactured in the United States (including technologies used to manufacture covered products), and which is provided by— the Department of Energy, the Department of Commerce, the Department of State, the Export-Import Bank of the United States, the United States International Development Finance Corporation, the Trade and Development Agency, the United States Agency for International Development, or the Office of the United States Trade Representative. The term free trade agreement means an agreement with 1 or more countries which— reduces or eliminates tariffs and non-tariff barriers between the countries party to such agreement, and is approved by Congress. The term greenhouse gas has the meaning given such term in section 98.6 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this subchapter). The term HTS means the Harmonized Tariff Schedule of the United States. The term international partnership agreement means an international partnership agreement established pursuant to title II of the Foreign Pollution Fee Act of 2023 . The term nonmarket economy country has the meaning given such term in section 771(18) of the Tariff Act of 1930 ( 19 U.S.C. 1677(18) ). The term point source pollution means pollution emitted into the ambient air at the site of the manufacturing of a product. The term pollution means greenhouse gas emissions. The term pollution intensity means the amount of greenhouse gases (as determined under section 4693), expressed in metric tons of carbon dioxide equivalent, which are emitted into the atmosphere in the production of a single unit of a covered product (as determined pursuant to section 4691(c)). The term pollution intensity difference means, with respect to any covered product, the difference (expressed as a percentage) between— the pollution intensity associated with production of such product in the country of origin, and the baseline pollution intensity with respect to such product. The term producer means the entity responsible for the creation of a product through— a manufacturing process, or in the case of a geologic resource, extraction. The term product means any article, regardless of whether such article is— exported from the country of origin, or produced and sold only within the country of origin. The term relevant Federal agency means— the Department of the Treasury, the Department of Energy, the Office of the United States Trade Representative, the Department of Commerce, the Department of State, the Environmental Protection Agency, the Council on Environmental Quality, the Office of Science and Technology Policy, and the Department of Homeland Security. The term transforming part means a product which is substantially transformed or refined into another product. The term upstream pollution means, with respect to any covered product— the pollution associated with all covered component parts, covered contributing parts, and covered transforming parts, and any fugitive pollution which occurs during extraction, refining, and transport of any part described in subparagraph (A). For purposes of this subchapter— Subject to paragraph (2), the terms high-income country , upper-middle-income country , lower-middle-income country , and low-income country shall be defined based on the classification of the economy of a country by the World Bank. In the case of any country which, as of January 1, 2023, is classified by the World Bank as a high-income country or an upper-middle-income country, such country shall not be eligible to be reclassified as a lower-middle-income country or a low-income country. The processes established under this section shall be utilized to— provide the initial rules for application of the fee imposed under section 4691, and perform any required reassessment. Not later than 12 months after the date of enactment of this subchapter, the Secretary shall issue a final rule for purposes of— determining the appropriate heading or subheading number of the HTS for each covered product (as required under section 4695(b)); and determining the appropriate measurement of any covered product (as described in section 4691(c)). Not later than 18 months after the date of enactment of this subchapter, the Secretary shall publish a final rule establishing— in a manner consistent with section 4693, the pollution intensity with respect to each covered product and country of origin, and methods for any foreign country to establish an alternative pollution intensity with respect to any covered product pursuant to subsection
(f)of such section. Not later than 36 months after the date of enactment of this subchapter, the Secretary shall publish a final rule to address producers described in section 4693(g). Not later than 24 months after the date of enactment of this subchapter, the Secretary (in consultation with the United States Trade Representative) shall issue a final rule establishing the variable charge for covered products for purposes of section 4692. In addition to the rules described in paragraphs
(1)through (3), any rules which are necessary in order to properly apply the fee under section 4691 shall be issued not later than the date which 24 months after the date of enactment of this subchapter. Not later than 3 years after the date of the issuance of any final rule described in subsection (b), and every 3 years thereafter, the Secretary shall reassess and, as necessary, issue a final rule to adjust, the existing final rule. The United States International Trade Commission, in consultation with the Secretary, shall annually publish a notice reflecting headings, subheadings, and statistical reporting numbers of the HTS contained in any rule issued under this section which need to be amended due to revisions to the HTS. With respect to any reassessment described in paragraph (1), the Secretary may utilize any data which is available as a result of enhancements in the ability to assess domestic or foreign pollution pursuant to legislation enacted or developments in technology subsequent to the issuance of the most recent final rule. In the case of an international partnership agreement, the Secretary may, at the time of the establishment of such agreement and in a manner consistent with such agreement, issue a final rule to adjust the pollution intensity for any covered product (as determined pursuant to subsection (b)(2)) produced in a country which is a party to such agreement. In the case of any final rule issued with respect to any reassessment under paragraph (1), the application of such rule shall take effect on January 1 of the first calendar year beginning subsequent to the issuance of such final rule. With respect to any product which is included as a covered product pursuant to subsection
(d)or
(e)of section 4695 following the publication in the Federal Register (as described in subsection (d)(7)(B)(ii) or subsection (e)(2)(A) of such section, as applicable)— not later than 12 months after the date of such publication, the Secretary shall issue a final rule with respect to the pollution intensity of such covered product and any country of origin consistent with the requirements under section 4693, and not later than 6 months after the issuance of the final rule described in subparagraph (A), the Secretary shall issue a final rule establishing the variable charge for such covered product consistent with the requirements under section 4692. Except as provided in subparagraph (B), any classification or rule established pursuant to paragraph
(1)with respect to any covered product shall remain in effect under the next reassessment under subsection (c). With respect to any product included as a covered product under subsection
(d)or
(e)of section 4695, if the date for imposition of the fee under section 4691 (as determined pursuant to section 4695(f)) is less than 1 year from the date of the next reassessment under subsection (c), such product shall not be subject to such reassessment. Not later than 6 months prior to— the date on which any final rule is required to be issued under paragraph (1), (2), or
(3)of subsection (b), and the date on which any reassessment is required to be made under subsection (c)(1), the Board shall provide recommendations to the Secretary with respect to such final rule or reassessment. Not later than 30 days after receiving the recommendations of the Board provided under paragraph (1), the Secretary shall— publish a notice of proposed rulemaking based on such recommendations with respect to the final rule or reassessment, and brief the appropriate congressional committees and consult with such committees regarding such final rule or reassessment. Following the notice under paragraph (2)(A), the Secretary shall provide a public comment period of not less than 60 days. Prior to the issuance of any final rule or reassessment under this section regarding the appropriate classification of covered products, the Secretary shall consult with— the United States Trade Representative, the United States International Trade Commission, the Commissioner of U.S. Customs and Border Protection, and all other relevant Federal agencies. The publication of any final rule required under this section shall include a statement from the Secretary explaining any deviation from the recommendations submitted by the Board pursuant to paragraph (1). The United States Court of Appeals for the District of Columbia Circuit shall have original and exclusive jurisdiction over any claim with respect to any final rule issued under this section. No final rule issued under this section shall be subject to judicial review unless— the claim is filed not later than 30 days after the issuance of such rule, and the person filing such claim— is a citizen of the United States or a domestic producer, and demonstrates that— application of such rule will result in the infliction of a direct and tangible harm to such person, and the rulemaking process was conducted in a manner that was intended to directly harm such person, or demonstrates that such final rule— altered the recommendations made by the Board, and would limit the ability to attain the goals established under section 4692(c)(2). Notwithstanding any claim or cause of action filed with respect to any provision of this subchapter— the applicable date described in section 4691(a)(2), the application of reassessment pursuant to subsection (c), and with respect to covered products included pursuant to subsection
(d)or
(e)of section 4695, the date for imposition of the fee under section 4691 to take effect (as determined under section 4695(f)), shall not be subject to judicial review and shall not be subject to delay or suspension. .
Connectionstraces to 1
Traces to 1 document
U.S. Code
Citation graph
cites case law
Sec. 101
Foreign pollution fee
Cites 1Cited by 0 across 0 sources