Notice of Proposed Waiver of Buy America Requirements for Electric Vehicle Chargers

Notice of Proposed Waiver of Buy America Requirements for Electric Vehicle Chargers

Publication: Federal Register
Signing Official: Stephanie Pollack
Agency: Federal Highway Administration
Date: 31 August 2022

[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Notices]
[Pages 53539-53547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18831]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0023]

Notice of Proposed Waiver of Buy America Requirements for
Electric Vehicle Chargers

AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).

ACTION: Notice; request for comments.

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SUMMARY: The Federal Highway Administration (FHWA) is seeking comments
on a proposal under its Buy America waiver authorities to: modify its
existing general applicability waiver for manufactured products to
remove electric vehicle (EV) chargers; and waive certain Buy America
requirements under FHWA regulations and the Build America, Buy America
Act for the steel, iron, manufactured products, and construction
materials in EV chargers in a manner that, over a deliberate
transitional period, reduces the scope of that waiver. The proposed new
waiver would initially waive all Buy America requirements for EV
chargers and all components of EV chargers that are installed in a
project and then phase-out the waiver with two changes during calendar
year 2023 and one change in January 2024.

DATES: Comments must be received by September 30, 2022.

ADDRESSES: Please submit your comments to the Federal eRulemaking
Portal at http://www.regulations.gov/, Docket: FHWA-2022-0023, and
follow the online instructions for submitting comments.
Instructions: You must include the agency name and docket number at
the beginning of your comments. Except as described below under the
heading ``Confidential Business Information,'' all submissions
received, including any personal information provided, will be posted
without change or alteration to http://www.regulations.gov. For more
information, you may review the U.S. Department of Transportation's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477).

FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Mr. Brian Hogge, FHWA Office of Infrastructure, 202-366-
1562, or via email at Brian.Hogge@dot.gov. For legal questions, please
contact Mr. Patrick C. Smith, FHWA Office of the Chief Counsel, 202-
366-1345, or via email at Patrick.C.Smith@dot.gov. Office hours for
FHWA are from 8:00 a.m. to 4:30 p.m., E.T., Monday through Friday,
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

A copy of this Notice, all comments received on this Notice, and
all background material may be viewed online at http://www.regulations.gov using the docket number listed above. Electronic
retrieval help and guidelines are also available at http://www.regulations.gov. An electronic copy of this document also may be
downloaded from the Office of the Federal Register's website at:
www.FederalRegister.gov and the Government Publishing Office's website
at: www.GovInfo.gov.

Confidential Business Information

Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this notice contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this notice, it is important that you
clearly designate the submitted comments as CBI. You may ask FHWA to
give confidential treatment to information you give to the agency by
taking the following steps: (1) Mark each page of the original document
submission containing CBI as ``Confidential''; (2) send FHWA, along
with the original document, a second copy of the original document with
the CBI deleted; and (3) explain why the information you are submitting
is CBI. Unless you are notified otherwise, FHWA will treat such marked
submissions as confidential under the FOIA, and they will not be placed
in the public docket of this RFI. Submissions containing CBI should be
sent to: Mr. Brian Hogge, FHWA, 1200 New Jersey Avenue SE, HICP-20,
Washington, DC 20590. Any comment submissions that FHWA receives that
are not specifically designated as CBI will be placed in the public
docket for this matter.

Background

The President has laid out a bold vision for making transformative
transportation investments to support job growth and reshape the United
States (U.S.) transportation system, strengthen the U.S. economy and
competitiveness, and support a sustainable energy and climate future.
The President has set the ambitious goal of building a national network
of 500,000 EV chargers by 2030.\1\ On November 15, 2021, the President
signed into law the Bipartisan Infrastructure Law (BIL), enacted as the
Infrastructure Investment and Jobs Act (IIJA), (Pub. L. 117-58). The
BIL makes the most transformative investment in EV charging in U.S.
history, including $5 billion over five years that will be made
available under the new National Electric Vehicle Infrastructure (NEVI)
Formula Program.\2\ As outlined in statute, the purpose of the NEVI
Formula Program is to ``provide funding to States to strategically
deploy EV charging infrastructure and to establish an interconnected
network to facilitate data collection, access, and reliability.'' See
BIL, Division J, Title VIII, Highway

[[Page 53540]]

Infrastructure Program heading, Paragraph (2). This purpose would be
satisfied by creating a convenient, affordable, reliable, and equitable
network of EV chargers throughout the country. BIL also includes many
additional funding and financing programs with eligibilities for EV
charging infrastructure, including formula, discretionary, other
allocated, and innovative finance programs.\3\ These historic
investments across the Federal government in EV charging under BIL will
put the U.S. on a path to meeting the President's goal for EV charging
infrastructure and ensuring a convenient, reliable, affordable, and
equitable charging experience for all users.
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\1\ White House Fact Sheet: Biden Administration Advances
Electric Vehicle Charging Infrastructure (Apr. 22, 2021), available
at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-biden-administration-advances-electric-vehicle-charging-infrastructure/.
\2\ See https://highways.dot.gov/newsroom/president-biden-usdot-and-usdoe-announce-5-billion-over-five-years-national-ev-charging.
\3\ Federal Funding is Available For Electric Vehicle Charging
Infrastructure On the National Highway System, FHWA (April 22,
2022), available at https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/resources/ev_funding_report_2022.pdf.
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BIL includes new Build America, Buy America provisions to
strengthen domestic manufacturing. As the Administration implements the
historic investments in EV charging infrastructure under the BIL, we
seek to maximize the use of American made products and materials while
also ensuring successful and timely delivery of these critical EV
infrastructure projects. The manufacturing, assembly, installation, and
maintenance of EV chargers all have the potential to not only support
the President's policies on sustainability and climate, but also
increase domestic manufacturing, strengthen our supply chains, and
create good-paying, union jobs in the U.S.
In order to ensure delivery and meaningful results on EV charging
projects using Federal-aid highway funds throughout the U.S., FHWA is
considering making judicious use of its waiver authority under Section
313(b)(1) of Title 23 of the U.S. Code and 23 CFR 635.410(c), with
respect to steel, iron, and manufactured products, and Section 70914(b)
of the BIL, with respect to construction materials. Following
establishment of an initial temporary public interest waiver for EV
chargers, FHWA proposes to decrease the scope of the waiver over time
to ensure the maximum utilization of goods, products, and materials
produced in the United States. See BIL Sec. 70935(a). The initial,
temporary public interest waiver for EV chargers will allow
manufacturers a short ramp up period to make needed investments to
build and expand domestic production to quickly proceed in support of a
sustainable energy and climate future. In addition, EV charger
installation and maintenance can immediately create good-paying, union
jobs in America that cannot be outsourced. Moreover, domestic jobs may
also be created to manufacture domestically available components of
those systems.
At the same time, consistent with Executive Order (E.O.) 14005,
FHWA is also seeking to encourage first-movers who bring more EV
charger and component manufacturing and assembly to the U.S. By
shifting manufacturing and assembly processes to the U.S. for EV
chargers and charger equipment as soon as practicable and making
necessary arrangements with vendors to obtain appropriate
certifications showing Buy America compliance, domestic manufacturing
firms have potential to obtain significant first-mover benefits from
the bold investments provided by BIL in this area. By proposing to
gradually reduce the scope of the waiver to increase domestic content,
FHWA aims to further incentivize domestic manufacturing of EV chargers
and charger-related equipment, including maximizing domestic content.
FHWA also seeks to maximize opportunities for American workers to
manufacture, assemble, install, and maintain EV chargers consistent
with BIL Sec. 70935(a). The proposed transitional period, reducing the
scope of the waiver in scheduled intervals, is intended to both support
domestic manufacturing of EV chargers and timely construction of an EV
charging network using Federal-aid highway funds by giving industry a
clear timetable to increase domestic manufacturing and assembly of EV
chargers.
On November 24, 2021, DOT and the U.S. Department of Energy (DOE)
published a Request for Information (RFI) in the Federal Register
intended to gather information from the public on the availability of
EV chargers manufactured and assembled in the United States, including
whether they comply with applicable Buy America requirements for iron
and steel. 86 FR 67115 (Nov. 24, 2021). The results of the RFI are
summarized in the ``November 2021 Request for Information'' Section of
this document.
Based on information obtained through the RFI and in recognition
that the market continues to evolve, FHWA developed this proposal to
support the President's objectives on creating a safe, reliable, and
efficient network of EV charging infrastructure, protecting the
climate, and investing in domestic manufacturing and the expansion of
good paying, union jobs.

Executive Orders

In January 2021, President Biden issued E.O. 14005, titled Ensuring
the Future is Made in All of America by All of America's Workers (86 FR
7475, Jan. 28, 2021). The E.O. states that the United States Government
``should, consistent with applicable law, use terms and conditions of
Federal financial assistance awards and Federal procurements to
maximize the use of goods, products, and materials produced in, and
services offered in, the United States.'' FHWA is committed to ensuring
strong and effective Buy America implementation consistent with E.O.
14005, including for the transformative investment in EV charging
infrastructure under the BIL.
In January 2021, President Biden also issued E.O. 14008, titled
Tackling the Climate Crisis at Home and Abroad (86 FR 7619, Feb. 1,
2021). The E.O. states that the Nation faces ``a climate crisis that
threatens our people and communities, public health and economy, and
starkly, our ability to live on planet Earth.'' E.O. 14008, at Sec.
201. The Federal government has an opportunity to build modern and
sustainable infrastructure, deliver an equitable, clean energy future,
and put the United States on a path to achieve net-zero emissions,
economy-wide, by no later than 2050. Id. The President directed the
Federal government ``to organize and deploy the full capacity of its
agencies to combat the climate crisis to implement a government-wide
approach that reduces climate pollution in every sector of the
economy,'' including through the ``deployment of clean energy
technologies and infrastructure.'' Id. To attain the 2050 target, the
President has set a goal of building a national network of 500,000 EV
chargers by 2030. BIL provides a multi-billion-dollar investment to
make this goal a reality.
This proposal supports the policies of both orders, as well as the
President's broader objectives.

Buy America Requirements

The Buy America requirements for steel and iron set forth at 23
U.S.C. 313 and 23 CFR 635.410 apply on FHWA-funded projects. These
provisions require that all steel and iron that are permanently
incorporated into a project must be produced in the United States
unless a waiver is granted, including predominantly steel and iron
components of a manufactured product. As applied to products other than
iron and steel, the term ``produced'' in 23 U.S.C. 313 includes
physical final assembly and manufacturing processes.

[[Page 53541]]

This requirement applies to the obligation of Title 23, U.S.C. funds.
For all predominantly steel or iron materials, products, or components
to be used in projects that involve the obligation of Title 23, U.S.C.
funds, all manufacturing processes, including application of a coating,
must occur in the U.S. Coating includes all processes which protect or
enhance the value of the material to which the coating is applied. Such
projects involve both the acquisition and installation of such
equipment. Additionally, FHWA's Buy America requirement applies to all
contracts regardless of the funding source if any contract within the
scope of a determination under the National Environmental Policy Act
(NEPA) involves an obligation of Federal funds. See 23 U.S.C. 313(h).
Outside of the context of EV chargers, nothing in this waiver changes
the longstanding requirement for iron and steel.
FHWA also has a longstanding Buy America nationwide general
applicability waiver for manufactured products (Manufactured Products
General Waiver). 48 FR 53099 (Nov. 25, 1983). As of the date of this
notice, FHWA has not modified the Manufactured Products General Waiver,
and the waiver continues to apply to manufactured products that are not
predominantly steel and iron and are funded under Title 23. For this
proposed waiver specific to EV chargers, FHWA proposes to remove EV
chargers from the Manufactured Products General Waiver. Continuing to
apply the Manufactured Products General Waiver to EV chargers would be
inconsistent with the objectives of BIL's Buy America, Build America
Act, discussed below, and is not supported by currently available
information on domestic manufacturing capabilities. (FHWA will be
conducting a separate review of the broader applicability of the
Manufactured Products General Waiver, as required by BIL Sec.
70914(d), including an opportunity for public comment.) The proposed
waiver in this notice only reviews whether FHWA should continue or
discontinue application of the Manufactured Products General Waiver to
EV chargers. OMB Memorandum M-22-11, also discussed below, states at
page 13 that, in reviewing general applicability waivers, ``agencies
should consider narrowing the waiver in a manner that would support
supply chain resilience and boost incentives to manufacture key
products domestically.''
In addition to historic investment in American transportation and
EV chargers, the BIL also includes the Build America, Buy America Act
(the ``Act'' or ``BABA''), which expands the coverage and application
of Buy America preferences in Federal financial assistance programs for
infrastructure. BIL, div. G Sec. Sec. 70901-27. The Act applies those
requirements to obligations made after May 14, 2022. BIL Sec.
70914(a).
The Act provides that the preferences under Section 70914 apply
only to the extent that a domestic content procurement preference as
described in Section 70914 does not already apply to iron, steel,
manufactured products, and construction materials. BIL Sec. 70917(a)-
(b). This provision allows Federal agencies to preserve existing Buy
America policies and provisions that meet or exceed the standards
required by the Act, such as FHWA's existing requirements for iron and
steel. By statute at 23 U.S.C. 313, FHWA has existing Buy America
domestic content preferences for steel, iron, and manufactured
products.
FHWA's existing Buy America requirement at 23 U.S.C. 313 does not
specifically cover construction materials, other than to the extent
that such materials would already be considered iron, steel, or
manufactured products. Accordingly, the new Buy America preferences
included under Section 70914 of the Act for construction materials
became effective on FHWA projects on May 14, 2022. However, in order to
deliver projects and meaningful results while ensuring robust adoption
of Buy America standards, DOT established a temporary public interest
waiver for construction materials (``Temporary Construction Materials
Waiver'') for a period of 180 days beginning on May 14, 2022 and
expiring on November 10, 2022. See Waiver of Buy America Requirements
for Construction Materials, 87 FR 31931 (May 25, 2022). The Temporary
Construction Materials Waiver is applicable to awards that are
obligated on or after May 14, 2022 and before November 10, 2022. Unless
extended, the waiver expires on November 10, 2022.
FHWA will only consider a Buy America waiver when the conditions of
23 U.S.C. 313(b) and Sec. 70914(b) of the Act have been met. This
includes: (i) when the application of the requirements under 23 U.S.C.
313(b) and Sec. 70914 of the Act would be inconsistent with the public
interest; or (ii) when products are not produced in the United States
in sufficient and reasonably available quantities of a satisfactory
quality.\4\ As explained below, this proposed waiver is in the public
interest.
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\4\ Section 70914(b)(3) of the Act also provides a cost-based
condition for a waiver, which FHWA's regulation addresses at 23 CFR
635.410(b)(3) through alternate bid procedures.
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OMB Implementation Guidance

On April 18, 2022, OMB issued memorandum M-22-11, ``Initial
Implementation Guidance on Application of Buy America Preference in
Federal Financial Assistance Programs for Infrastructure'' (``OMB
Implementation Guidance''). The OMB Implementation Guidance addresses
the topic of public interest waivers. The guidance notes that a
``waiver in the public interest may be appropriate where an agency
determines that other important policy goals cannot be achieved
consistent with the Buy America requirements established by the Act.''
OMB Implementation Guidance at p. 10. The guidance also recognizes
several instances in which Federal agencies may consider issuing a
public interest waiver and encourages agencies to consider an
adjustment period where time limited waivers would allow recipients and
agencies to transition to new Buy America preferences, rules, and
processes. Id. at p. 11.

Applicability of FHWA's Manufactured Products General Waiver to EV
Chargers

As of the date of this notice, FHWA's Manufactured Products General
Waiver remains in effect. Under existing policy and practice, FHWA
generally applies its Buy America requirement to predominantly steel
and iron components of manufactured products even if the product itself
is not predominantly steel and iron.\5\ The responses to the 2021 RFI,
as discussed below, indicated that steel may be used in certain
components for EV chargers including the housing, cabinet, or
enclosure. Exclusive reliance on the Manufactured Products General
Waiver based only on assessment of steel and iron content of the
product overall may not be a reliable compliance strategy for EV
chargers with components containing iron and steel.
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\5\ See FHWA's Buy America Questions and Answers for the
Federal-aid Program, available at https://www.fhwa.dot.gov/construction/contracts/buyam_qa.cfm. The answer to question 12
explains that FHWA's Buy America requirements apply to any
predominantly steel or iron component of a manufactured product
regardless of the overall composition of the manufactured product.
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November 2021 Request for Information

As also mentioned above, on November 24, 2021, DOT and DOE
(collectively, ``the Agencies'') published

[[Page 53542]]

an RFI in the Federal Register to gather information from the public on
the availability of EV chargers manufactured and assembled in the
United States, including whether they comply with applicable Buy
America requirements for iron and steel. 86 FR 67115 (Nov. 24, 2021).
The Agencies received 72 individual comments in response to the
notice from a wide array of stakeholders, including state departments
of transportation (State DOTs), local agencies, EV charger
manufacturers and suppliers, auto manufacturers, industry associations,
and transportation advocates.\6\ The majority of comments indicated
that the EV charger industry and State DOTs are not immediately
prepared to certify compliance for EV chargers on FHWA-funded projects,
with many commenters emphasizing strong support for establishing a
waiver. As of the comment closing date for the RFI on January 10, 2022,
approximately 11 manufacturers believed they could produce EV chargers
in compliance with FHWA's Buy America requirement for steel and iron,
although only three of these manufacturers were referring to direct
current fast charging (DCFC) chargers. DCFC chargers will be the
initial focus along the designated corridors for electric vehicles
under the $5 billion NEVI program.\7\ The responding manufacturers who
believed their EV chargers comply with FHWA's Buy America requirement
offered differing interpretations on how that Buy America requirement
is, or should be, applied to EV chargers. At least 13 manufacturers
believed they could meet a domestic final assembly condition for either
DCFC or alternating-current Level 2 (ACL2) chargers--although other
commenters believed the meaning of this condition was too vague and did
not respond. Specific comments from EV charger manufacturers are
discussed in more detail below. A common theme in many comments from
State DOTs, manufacturers, industry associations, and others was the
need for regulatory certainty and further guidance on how FHWA's Buy
America requirement will be applied to EV chargers funded under BIL.
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\6\ The comments can be found at regulations.gov Docket No.
FHWA-2021-0015.
\7\ See NEVI Formula Program Guidance, at 12, 26, available at
https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf.
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Several comments from manufacturers responding to the RFI included
confidential business information (CBI), which is exempt from public
disclosure. Such CBI is not discussed with specificity in this notice.
Comments on DCFC Chargers. In the RFI, the Agencies asked whether
there are existing EV chargers that meet FHWA's Buy America requirement
for steel and iron. The comments revealed limited evidence of immediate
production capability and capacity for DCFC chargers and other charger
equipment that can be certified to meet FHWA's requirement and the
national demand. DCFC chargers enable rapid charging through delivering
DC electricity to the EV. Under the NEVI Formula Program, FHWA has
explained that all EV charger infrastructure installed along the
designated corridors should be DCFC chargers.\8\ At the time of the
RFI, only three manufacturers--ChargePoint, FreeWire Technologies, Inc.
(FreeWire), and Rhombus--believed that they had existing DCFC systems
complying with FHWA's Buy America requirement. Other companies, such as
Tritium, discussed plans to build DCFC chargers meeting FHWA's
requirement in the future. While these comments show significant
potential for the future of DCFC charger manufacturing in the U.S.,
uncertainty remains regarding their ability to immediately meet demand
for Buy America-compliant DCFC chargers and other essential supporting
equipment for EV chargers on FHWA-funded projects throughout the U.S.
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\8\ See NEVI Formula Program Guidance, at 12, 26, available at
https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf.
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ChargePoint believes it has a method to achieve compliance with
FHWA's Buy America requirement for steel and iron for DCFC chargers.
Portions of its comments were marked as containing CBI and will not be
discussed with specificity in this notice.
The second company, FreeWire, believes it would comply based on its
interpretation of FHWA's de minimis threshold for steel and iron under
23 CFR 635.410. FreeWire stated that it intends to manufacture and
deliver approximately 140 DCFC chargers in 2022 and believes it would
comply with Buy America for nearly all of those chargers. FHWA's Buy
America regulation allows for a minimal use of foreign steel and iron
materials, if the cost of such materials, as they are delivered to the
project, does not exceed one-tenth of one percent (0.1 percent) of the
total contract cost or $2,500, whichever is greater. 23 CFR
635.410(b)(4). FreeWire did not disclose the specific cost or amount of
foreign steel and iron content in its DCFC charger system. As the cost
of foreign iron and steel in the FreeWire chargers remains unknown to
FHWA, it is uncertain whether this would be an effective compliance
approach for contracts including multiple chargers or other steel or
iron products. It is also unknown whether FreeWire could also provide
other necessary elements or components of EV chargers to comply with
FHWA's Buy America standard for steel and iron, such as distribution
system upgrades, payment systems, networking and telecommunications
equipment, energy storage systems, and other necessary supporting
equipment. FreeWire stated that it intends to scale up production of
its DCFC chargers in the next five years.
The last company, Rhombus, estimated that it can produce
approximately 3,000 DCFC chargers annually meeting FHWA's Buy America
requirement for steel and iron. It stated that it would trace the
origins of the steel and iron components used in its charger by
requesting certification from the suppliers but did not provide
extensive detail on what that process would entail.
While comments from manufacturers such as ChargePoint, FreeWire,
Rhombus, Tritium, Siemens, and others reveal great potential for
domestic DCFC manufacturing, FHWA remains uncertain regarding their
immediate ability to meet demand on all FHWA projects for EV chargers
that satisfy FHWA's Buy America requirement within the next 12 months.
Reasons for this uncertainty include:
(1) Economy-wide factors outside of manufacturer control: Economy-
wide factors outside of the control of EV charging manufacturers, such
as price volatility, may impact their ability to reliably deploy a
sufficient supply of Buy America compliant EV chargers on FHWA
projects.
(2) Essential elements of EV charger systems outside of
manufacturer control: Certain necessary elements or components of EV
charger systems, such as distribution system upgrades (including, e.g.,
transformers), payment systems, telecommunications and networking
equipment, energy storage systems, and other supporting equipment may,
in many cases, be outside of EV charger manufacturers' control. For
example, distribution system upgrades, generally made by utilities, are
typically required for deployment of EV chargers. Although
manufacturers have different options for components used within the
charger product itself, their control may be more limited over external
elements of the system, which are integral to its reliable function and
operation.

[[Page 53543]]

(3) Readiness of upstream suppliers to provide certifications: EV
charger manufacturers may only be able to demonstrate compliance for
certain components of EV chargers to the extent that upstream suppliers
are willing and able to provide detailed accountings of manufacturing
processes and costs. This may take some time to accomplish.
(4) Extraordinary immediate demand: The unprecedented and immediate
demand created by the transformative investment under BIL for EV
chargers throughout the U.S. may also impact manufacturers' ability to
produce an adequate supply of chargers and other charger components
that satisfy FHWA's Buy America requirement. Reliably meeting demand
for EV chargers on FHWA projects is essential to staying on the path to
meet policy goals in E.O. 14008 and the President's goal of a new
network of 500,000 EV chargers by 2030. Some commenters responding to
the RFI noted that demand for DCFC chargers in the U.S. already
exceeded the available supply even before implementation of the BIL
programs. For example, Veloce Energy noted that manufacturers were
ramping up production in late 2021, but not yet meeting overall demand.
In the near term, the supply of DCFC chargers manufactured to meet
FHWA's Buy America requirement and able to successfully certify
compliance of the same, if any, would likely be a small subset of the
total supply.
(5) Certification processes: There is a need to establish
compliance and certification processes focused specifically on EV
chargers and other elements of EV chargers.\9\ Recipients of DOT
financial assistance, including States, local communities, Tribal
nations, and industrial vendors need to develop and transition to new
compliance and certification processes for EV chargers. Some commenters
expressed concerns about these processes including potentially
inconsistent procedures in different States. Under existing
certification processes, manufacturers may also find it infeasible to
verify compliance without disclosing sensitive CBI.
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\9\ These certification processes will be similar to existing
certification processes employed by DOT.
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(6) Reliability: The reliability of EV chargers may vary greatly in
the industry. A key statutory purpose of the NEVI Formula Program is to
facilitate reliability in the EV charging infrastructure it funds. See
BIL, Division J, Title VIII, Highway Infrastructure Program heading,
Paragraph (2). Given that charger models or systems designed to comply
with Buy America will generally be new or customized, manufacturers
will need time to ensure they are also designed for reliability before
producing them at scale. Designing new systems for reliability
generally involves rigorous mechanical and environmental testing.
Without adequate time for such testing, new or customized systems may
not withstand the rigors of years in the field subjected to heat and
freezing, UV radiation, many cycles of use, harsh handling, or other
variables. Moreover, additional testing will be conducted on these
newly manufactured products by the charging companies installing them
and vehicle manufacturers whose vehicles will plug into them, which is
another issue to consider when ensuring operability and reliability.
Given the factors discussed above, such as existing supply
constraints, it appears unlikely that the limited set of DCFC chargers
identified in response to the RFI as potentially able to meet FHWA's
Buy America requirement could meet the full demand prompted by BIL and
the NEVI program in the immediate future. Since market conditions may
have changed since the time of the RFI in November 2021, FHWA seeks
comment on appropriate waiver schedules below.\10\
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\10\ See, e.g., White House Fact Sheet: Biden-Harris
Administration Catalyzes more than $700 Million in Private Sector
Commitments to Make EV Charging More Affordable and Accessible (Jun.
28, 2022), available at https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/28/fact-sheet-biden-harris-administration-catalyzes-more-than-700-million-in-private-sector-commitments-to-make-ev-charging-more-affordable-and-accessible/.
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Comments on ACL2 Chargers. A larger set of about nine manufacturers
believed they are capable of producing Buy America-compliant ACL2
chargers. ACL2 chargers use an alternating-current electrical circuit
to deliver electricity to the EV. Commenters believed that at least the
following manufacturers can produce ACL2 chargers meeting FHWA
standards: Oasis Charging Corp., d/b/a JuiceBar; Tritium; Wallbox USA,
Inc.; Momentum Dynamics Corporation; BREEZEV, TADD LLC d/b/a Light
Efficient Design; EVSE, LLC; Dunamis Clean Energy Partners, LLC;
Siemens; and Blink Network, LLC. As with DCFC chargers, while these
comments show significant potential for the future of ACL2 charger
manufacturing in the U.S., uncertainty remains regarding their ability
to immediately meet demand for Buy America-compliant ACL2 chargers and
other essential supporting equipment on FHWA-funded projects throughout
the U.S.
Some of these manufacturers acknowledged that their chargers
contain small amounts of foreign iron or steel that cannot presently be
traced but appear to rely on either FHWA's de minimis threshold or
Manufactured Products General Waiver. For the reason discussed above on
FHWA's de minimis threshold, it is uncertain whether this would be an
effective compliance approach for contracts including multiple chargers
or other steel or iron products. Also, exclusive reliance on FHWA's
Manufactured Products General Waiver may not be an effective compliance
strategy for EV Chargers containing steel and iron components.
Moreover, through this notice, FHWA specifically proposes to remove EV
chargers from coverage under the Manufactured Products General Waiver.
Other ACL2 manufacturers, although believing their chargers are
manufactured domestically, discussed potential obstacles to obtaining
formal certification of compliance with FHWA's Buy America requirement.
For example, some manufacturers may be unable to certify compliance of
all component parts or their ability to certify those parts may be
affected by factors outside of their control.
It is also unknown whether these ACL2 charger manufacturers could
provide other necessary elements or components of ACL2 chargers to
comply with FHWA's Buy America requirement, such as distribution system
upgrades, payment systems, networking and telecommunications equipment,
energy storage systems, and other necessary supporting equipment.
Comments on Interpretation of FHWA's Manufactured Products General
Waiver. Other EV charger manufacturers also offered legal
interpretations on why either a DCFC system or ACL2 charger system may
comply with FHWA's Buy America requirement even if containing more than
a de minimis amount foreign iron and steel. These interpretations
generally relied on FHWA's Manufactured Products General Waiver and a
1997 FHWA policy memorandum related to that waiver.\11\ Commenters
stated that EV chargers may fall under the Manufactured Products
General Waiver because they are not predominantly comprised of iron or
steel. FHWA's RFI requested information on what percent of the total
price of an EV charger is typically for steel and iron. Responses from

[[Page 53544]]

manufacturers varied widely, from over 50 percent to only one or two
percent.
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\11\ See https://www.fhwa.dot.gov/programadmin/contracts/122297.cfm.
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Many of the responses addressing the Manufactured Products General
Waiver focused on the overall steel and iron content of EV chargers but
gave less information on the steel and iron content of charger
components. As explained above, even if the product itself is not
predominantly iron and steel, FHWA's Buy America requirement applies to
predominantly steel and iron components of manufactured products under
existing policy and practice. Steel is often used in components of EV
chargers including the housing, cabinet, or enclosure.
Comments on Steel and Iron Components of EV Chargers. Commenters
indicated that EV chargers with housing, cabinets, or enclosures made
mostly of steel generally have a higher percentage of steel and iron
content, usually ranging from five to 30 percent of the total costs of
the charger, but also exceeding 50 percent in some cases. Commenters
also indicated that EV chargers with housing, cabinets, or enclosures
made mostly of other materials such as aluminum or plastic generally
have a much lower percentage of steel and iron content, often below
five percent. Many commenters indicated that most of the cost and value
of an EV charger is in the parts found inside the housing, cabinet, or
enclosure.
In addition to the housing, cabinet, or enclosure, commenters also
identified at least the following components or subcomponents of EV
chargers as potentially containing some amounts of iron or steel: (i)
the framework or the internal structural frame; (ii) the pedestal;
(iii) power modules; (iv) the power transformer; (v) heating and
cooling fans; (vi) brackets and mounting brackets; (vii) cord and cable
management components; and (viii) screws, bolts, and washers.
Comments on Domestic Final Assembly Condition. The Agencies also
asked in the RFI whether there are existing EV chargers that are
currently assembled in the United States that could meet a domestic
final assembly condition. Manufacturers and other commenters provided a
range of responses with some manufacturers believing they meet the
condition and others believing that no manufacturers meet the condition
at present. Manufacturers that believed they could meet a domestic
final assembly condition for either DCFC or ACL2 chargers include at
least: In-Charge Energy, Inc.; Oasis Charging Corp, d/b/a JuiceBar;
Wallbox USA, Inc.; Momentum Dynamics Corporation; ChargePoint; Siemens;
Electrify America, LLC; BTC Power; EVSE, LLC; Dunamis Clean Energy
Partners, LLC; Atom Power; EvoCharge Philips and Temro; and Rhombus.
Some commenters noted that they were not aware of a precise and
consistent definition of ``domestic final assembly'' and this
uncertainty prevented them from opining on the question.
Regarding a possible domestic final assembly condition, some
commenters questioned whether manufacturers meeting such a condition
could immediately meet all existing market demand for EV chargers in
the U.S. in late 2021--even before considering the anticipated surge in
market demand prompted by the investment in EV chargers under the BIL.
Given practical constraints on immediately ramping up production
capacity, significant uncertainty remains on whether demand could be
met throughout the U.S. if such a condition were applied to the
proposed EV charging waiver. It is also unknown whether other necessary
elements or components of EV chargers could be supplied to meet the
same domestic final assembly condition, such as distribution system
upgrades, payment systems, networking and telecommunications equipment,
energy storage systems, and other necessary supporting equipment.
Veloce Energy commented that it believes it could meet such a condition
for battery energy storage systems, but little additional information
is available on the ability of supporting equipment for EV chargers to
meet a domestic final assembly condition.
Comments on Potential Waiver of Buy America Requirements. Many
commenters also offered opinions on the best application of Buy America
during the initial implementation of programs with eligibilities for EV
charging under BIL. These commenters requested a wide range of
timelines to allow manufacturers to ramp up production of EV chargers
that meet Buy America requirements and resolve supply chain issues and
other compliance and certification concerns. Many commenters suggested
establishing a waiver period for EV chargers ranging from a few months
to several years. Others recommended an incremental approach to
applying Buy America requirements to EV chargers to ensure that a
sufficient volume of chargers is available immediately while allowing
gradual progress on production capability and capacity.
For example, the American Association of State Highway and
Transportation Officials (AASHTO) strongly recommended a ``staged'' or
incremental approach to the application of Buy America requirements to
EV charger equipment during the initial implementation of the BIL to
facilitate efficient and effective deployment in the first few years.
Electrify America suggested establishing a 36-month path to compliance
during which DOT should exercise enforcement discretion on Buy America
requirements to allow companies to expand their U.S. operations. Amp Up
observed that the delivery time for EV chargers is significantly
delayed at present and may lead to project timelines in excess of over
a year under Buy America requirements. The Zero Emissions
Transportation Association (ZETA) recommended establishing an interim
national Buy America waiver for EV chargers to allow near-term
implementation of BIL programs with eligibilities for EV chargers.
Comments Requesting Additional Buy America Guidance. Many
commenters also requested additional guidance on the application of Buy
America requirements to EV chargers to provide regulatory certainty and
reduce the potential for inconsistent interpretations and applications
of Buy America requirements on FHWA-funded EV charger projects. For
example, AASHTO indicated that agencies and vendors need additional
technical guidance. It suggested that nationwide consistency is needed
in this area, as well as consistency between modal agencies within DOT.
Another comment recommended consistent regional interpretation of
FHWA's Buy America requirements and enabling manufacturers to
demonstrate compliance through secure channels, such as independent
third-party compliance verification. Another comment recommended
clarification from FHWA to industry on Buy America requirements to
address confusion in the market around the rules, definitions,
interpretation, and audit measures in the areas of iron and steel
calculation, percent of domestic content, applicability of waivers such
as the Manufactured Products General Waiver, the meaning of
``predominantly,'' and necessary documentation for audits and
compliance. ZETA recommended that FHWA provide certainty on whether EV
Chargers qualify for its Manufactured Products General Waiver. FLO
Services, USA also requested FHWA to clarify whether chargers are
manufactured products exempt from FHWA Buy America requirements; this
commenter believes that if EV chargers are classified as iron and steel
products it would likely exclude the entire industry

[[Page 53545]]

from accessing funding in BIL for EV chargers.

Content of Proposed Waiver and Request for Comments

With respect to EV chargers as defined in this proposal, FHWA is
requesting comment on its consideration of applying its authority under
Section 313(b)(1) of Title 23 of the U.S. Code and 23 CFR 635.410(c),
with respect to steel, iron, and manufactured products, and Section
70914(b) of the Act, with respect to construction materials, to provide
a waiver of applicable Buy America requirements for EV chargers on
FHWA-assisted infrastructure projects, on the basis that applying the
domestic content preferences for these materials would be inconsistent
with the public interest. Outside of the context of EV chargers as
defined in this proposal, FHWA does not propose any additional changes
to its existing policies and requirements for steel, iron, manufactured
products, or construction materials through this notice, which may be
addressed through separate processes. FHWA wants to ensure that its
waiver allows recipients and subrecipients to use Federal-aid highway
funds for EV chargers on their projects in support of policies and
goals stated in E.O. 14008 as a partial phase-out is implemented during
calendar year 2023.
FHWA seeks to establish a schedule that will ensure a sufficient
and reliable supply of EV chargers is available for Title 23 U.S.C. and
BIL-funded programs, including NEVI, to allow timely and strategic
deployment of EV charging infrastructure across the United States. See,
e.g., BIL, Division J, Title VIII, Highway Infrastructure Program
heading, Paragraph (2). Based on comments received in response to this
notice, FHWA may also find that different alternative dates are
warranted for the final waiver. FHWA requests comments on all phases of
the proposed schedule set forth in this notice, including:
[ssquf] Supporting information for alternative dates if applicable;
[ssquf] Whether there should be four phases as proposed;
[ssquf] Whether industry expects its production rates and capacity
for chargers to be consistent with the proposed schedule; and
[ssquf] How the proposed schedule or alternative dates impact
installation schedules in the field.
For comments urging an extension of the timeline, FHWA requests an
indication of how many chargers would be fully compliant with BABA
requirements at each phase of the proposed waiver and by the end of the
five-year NEVI program \12\--and also how many would not be compliant
at each phase. For comments urging a shortening of the timeline, FHWA
requests information supporting the reliable availability of compliant
chargers earlier than proposed. FHWA also generally requests comment
regarding the reliability of chargers, including new and custom
chargers designed to comply with domestic content procurement
preferences; cost competitiveness of chargers; production rates and
capacity of chargers; and timing of delivery upon order or purchase of
chargers. FHWA also includes additional requests for comment below in
the context of specific elements of the proposed waiver.
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\12\ See NEVI Program Fact Sheet, available at https://www.fhwa.dot.gov/bipartisan-infrastructure-law/nevi_formula_program.cfm.
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Initial Phase and Removal of EV Chargers from Manufactured Products
General Waiver. FHWA is proposing to initially apply a complete waiver
to EV chargers and all components of EV chargers that are installed in
a project during calendar year 2022, including waiving requirements for
steel, iron, and manufactured products under Section 313(b)(1) of Title
23 of the U.S. Code and 23 CFR 635.410(c); and requirements for
construction materials under Section 70914(b) of the Act. FHWA also
proposes to remove EV chargers from its existing Manufactured Products
General Waiver on the effective date of this proposed waiver. Removing
EV chargers from the scope of the existing Manufactured Products
General Waiver will avoid confusion and allow FHWA to clearly describe
the domestic content procurement preferences applicable to EV chargers
within the scope of a single waiver.
Partial Phase-Out of Waiver. Following the initial proposed phase
in calendar year 2022, FHWA proposes to partially phase-out the waiver
in two steps during calendar year 2023 and arrive at the final proposed
phase on January 1, 2024. Specifically:
Beginning on January 1, 2023, FHWA proposes to remove from
the waiver EV chargers whose final assembly process does not occur in
the United States. On and after that date, for EV chargers that are
installed in a project FHWA proposes the waiver would be applicable
only if final assembly occurs in the U.S.
Beginning on July 1, 2023, FHWA proposes to also remove
from the waiver EV chargers for which the cost of components
manufactured in the United States does not exceed 25 percent of the
cost of all components. On and after that date, for EV chargers that
are installed in a project through December 31, 2023, FHWA proposes the
waiver would be applicable only if: (i) final assembly occurs in the
U.S.; and (ii) the cost of components manufactured in the United States
exceeds 25 percent of the cost of all components.
Beginning on January 1, 2024, and thereafter, FHWA
proposes to also remove from the waiver EV chargers for which the cost
of components manufactured in the United States does not exceed 55
percent of the cost of all components. On and after that date, FHWA
proposes the waiver would be applicable only if: (i) final assembly
occurs in the U.S.; and (ii) the cost of components manufactured in the
United States exceeds 55 percent of the cost of all components.
The waiver would then remain in place until terminated by FHWA.
However, in accordance with Section 70914(d)(1) of the Act, FHWA would
commence a review of the waiver not less than 5 years after the date on
which the waiver is issued.
Consideration of Different Schedules for DCFC and L1/L2 Chargers.
FHWA also seeks comments on whether to establish different waiver
phase-out schedules for: (i) DCFC chargers; and (ii) Level 1 and ACL2
chargers based on projected and anticipated availability and volume of
different types of chargers. If different schedules are warranted, FHWA
also seeks comment on what the phase-out schedules should be for those
categories and why they should differ.
Proposed Meaning of Cost of Component Under Waiver. For the purpose
of this waiver, FHWA proposes the cost of a component to be based on
whether it is purchased or manufactured when it is incorporated into
the EV charger. To determine the allowable costs included in purchased
or manufactured components, FHWA proposes to use FAR 25.003.\13\ To
determine overhead costs that are generally allocable, FHWA proposes to
use FAR 31.201-4.\14\
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\13\ 48 CFR 25.003.
\14\ 48 CFR 31.201-4.
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FHWA proposes the costs for purchased components to include the
acquisition costs (including transportation costs to the place of
incorporation into the end product) and any applicable duty (regardless
of whether a duty-free certificate of entry is issued). FHWA proposes
the costs for manufactured components to include all costs associated
with the manufacture of

[[Page 53546]]

the component (including transportation costs and quality testing), and
allocable overhead costs, but to exclude profits and any labor costs
associated with the manufacture of the end product. FHWA proposes
allocable overhead costs to generally: (a) include costs incurred
specifically for the contract; (b) benefit both the contract and other
work and can be distributed to each in reasonable proportion to the
benefits received; or (c) are necessary to the overall operation of the
business, even if a direct relationship to any particular cost
objective cannot be shown.
FHWA requests comments on the proposed meaning of cost of component
described in this notice.
Proposed Meaning of EV Charger Under Waiver. For the purpose of
this waiver, FHWA proposes the term ``EV charger'' to include EV
chargers and associated payment systems, distribution systems,
telecommunications and networking equipment, energy storage systems,
and other supporting equipment and systems: (i) in the immediate
vicinity of a charger or group of chargers; and (ii) essential to the
function or operation of a charger or group of chargers. For the
purpose of this waiver, FHWA proposes the term ``charger'' to exclude
parking areas adjacent to the EV chargers and lanes for vehicle ingress
and egress. For any areas, products, or materials excluded under the
waiver, FHWA's existing Buy America requirements and policies will
continue to apply, including the new requirement applicable to
construction materials established under BABA following expiration of
DOT's Temporary Construction Materials Waiver. FHWA requests comment on
this definition, including whether the waiver should apply to
manufactured products that are external to the EV charger itself but in
its immediate vicinity and essential to its function or operation.
Proposed Meaning of Installation Under Waiver. For the purpose of
this waiver, FHWA proposes ``installed in a project'' to mean the point
at which an EV charger is permanently incorporated into or affixed to a
Federal-aid funded infrastructure project.
Consideration of Use of Either Installation Date or Other Date for
Waiver Effective Date and Phase-Out Dates. FHWA also seeks comments on
whether to use the installation date of the EV charger (as proposed) or
some other date (e.g., the date of obligation of funds, the
manufacturing date, the date of final assembly) as the effective date
for the waiver and the dates for the phase-out schedule of the waiver.
FHWA proposes to use the installation date in this notice but will
consider using a different trigger as the compliance date based on
comments received.
Consideration of Exclusion of Predominantly Steel and Iron
Components from Coverage Under Waiver. FHWA seeks comments on whether
and how to apply its existing Buy America requirement for iron and
steel to any specific predominantly steel and iron EV charger
components (e.g., by excluding certain predominantly steel and iron
components from the scope of the waiver). For example, steel and iron
items identified in the RFI include the housing, cabinet, or enclosure;
the framework or the internal structural frame; the pedestal; power
modules; and others. Finally, FHWA also requests information supporting
the reliable availability of such steel and iron components, which are
capable of complying with FHWA's existing Buy America policy.
Request for Comments on Proposed NEVI Requirements for OSHA and
Energy Star Certifications. Under the NEVI program notice of proposed
rulemaking (NPRM), FHWA proposes to require all EV chargers to obtain
certification from an Occupational Safety and Health Administration
(OSHA) Nationally Recognized Testing Laboratory. 87 FR 37262 (Jun. 22,
2022). The NEVI NPRM also proposes to require ENERGY STAR certification
for ACL2 chargers. FHWA requests comment on whether EV chargers
discussed in response to other questions in this notice would meet the
proposed NEVI requirements for OSHA and Energy Star certifications.

Justification for Proposed Waiver

With the goal of accelerating the deployment of crucial EV chargers
projects in a timely manner, and ensuring that FHWA's transportation
partners in States, Tribes, Territories, and MPOs can use BIL funding
for EV chargers, FHWA is considering the waiver on the basis that: (i)
immediately applying all applicable domestic content preferences for
these products would be inconsistent with the public interest because
it is likely to delay immediate implementation of BIL programs
providing funding for EV chargers, which are a key strategy for
reducing greenhouse gas emissions, during an interim phase period
between the effective date of the waiver and December 31, 2022; (ii)
during the intermediate phase during calendar year 2023, it is in the
public interest to gradually reduce the scope of the waiver to provide
industry with a clear timetable to increase domestic manufacturing and
assembly of EV chargers while still ensuring that a supply of EV
chargers is widely available for Federal-aid highway projects; and
(iii) following the intermediate phase proposed to end on December 31,
2023, it is in the public interest to apply a single domestic content
procurement preference to EV chargers, which is consistent with the
domestic content procurement preference under section 70912(6)(B) of
the Act generally applicable to manufactured products on infrastructure
projects receiving Federal financial assistance.
This phased approach will encourage manufacturers to adjust their
production processes to increase the amount of domestic content over
time, consistent with Congressional direction in BIL Sec. 70935(a),
while providing an incentive and advantage to those able to do so more
quickly. Applying uniform Buy America requirements, regardless of the
source of Federal funding, would benefit potential suppliers of those
products by providing a single market for federally assisted projects.
Because this new waiver would be applicable to EV chargers and
components, FHWA also proposes removing EV chargers from its
Manufactured Products General Waiver.
FHWA's Buy America requirements provide that 100 percent of all
steel and iron that is permanently incorporated into a project must be
domestically manufactured. Additionally, under existing practice,
FHWA's Manufactured Products General Waiver applies to all manufactured
products except for predominantly steel and iron manufactured products,
and predominantly steel and iron components of manufactured products.
See ``Buy America Requirements'' Section above for additional
discussion of existing FHWA policies. Although their overall iron and
steel content may be small--in some cases less than five percent--EV
chargers typically include components containing steel and iron, which
may also be covered by FHWA's requirement. In today's global
manufacturing industry, the components of EV chargers may be obtained
from suppliers all over the world. Considering this, it appears
impractical for manufacturers in the current market to immediately
certify that an EV charger meets FHWA's regulatory requirement of 100
percent domestic iron and steel content. Moreover, it appears
impractical to require States, contractors, and manufacturers to have
to potentially comply with multiple different

[[Page 53547]]

standards applicable to the various components comprising the products.
Although FHWA received some promising responses to its RFI on both DCFC
and ACL2 chargers, for the reasons discussed above in the section
summarizing those comments, it remains uncertain whether these
manufacturers are able to meet the unprecedented and immediate demand
for Buy America-compliant EV chargers on FHWA-funded projects
throughout the U.S.
In ensuring strong and effective Buy America implementation
consistent with E.O. 14005, FHWA must also ensure that important
Federal programs for transportation infrastructure investment,
including EV charger programs specifically, are able to complete
infrastructure projects in a timely manner. In response to the RFI,
stakeholders have voiced concerns regarding the implementation of Buy
America requirements for EV chargers, such as comments indicating that
certain components for EV chargers meeting FHWA's Buy America
requirement are not currently available to meet anticipated demand.
FHWA also received comments indicating that States and industry need
additional time to develop processes to certify and demonstrate
compliance for EV chargers. FHWA recognizes both the importance of
ensuring Buy America compliant EV chargers and the need to implement
the requirement in a way that is not overly burdensome to producers and
funding recipients or prevents timely and effective delivery of EV
charger projects. At present, based in part on information from the
RFI, FHWA is proposing to issue the waiver discussed in this notice.
Based on the responses from the RFI, FHWA is proposing to issue a
waiver that would step down in incremental stages. The proposed waiver
will, if issued, provide an initial interim period during which FHWA's
Buy America requirement is completely waived while industry ramps up
domestic production of EV chargers. Following this initial period in
calendar year 2022, FHWA proposes to partially phase-out the waiver
with two changes occurring during calendar year 2023 and one additional
change on January 1, 2024. Following that transition period, FHWA
proposes to leave the waiver in place as a general applicability
standing waiver for EV chargers, subject to the mandatory periodic
review requirement in the BIL. This approach will provide recipients of
FHWA financial assistance and their industrial vendors a reasonable
transition period to increase the domestic content of their EV
chargers.
This proposal is designed to ensure wide availability of EV
chargers in the immediate future on FHWA-funded projects but also
provide a strong incentive for manufacturers to rapidly shift toward
domestic manufacturing processes to comply with the narrowing scope of
the waiver for EV chargers during calendar year 2023 and arriving at
the final proposed phase on January 1, 2024. FHWA believes this
approach will be effective in fulfilling the purpose of E.O. 14005 to
help American businesses and workers compete and thrive in the global
marketplace.
Should the proposed waiver become effective, FHWA will publish its
decision in the Federal Register. The proposed FHWA dates are subject
to shortening, extension, or other modification--either prior to
issuance of a final waiver or following the effective date of the final
waiver and the applicable notice and comment period for modifying the
waiver--based on relevant considerations including, but not limited to:
(i) the ability of the domestic industry to supply EV chargers that
comply with the proposed waiver phases, including producing sufficient
volume to meet demand needed for NEVI program goals discussed above;
(ii) the ability of States and industry to effectively certify such
compliance with the proposed waiver phases. FHWA requests comment on
other factors that would be relevant to considering such an adjustment.
We also note that phases of this waiver are proposed for efficiency.
Should a recipient be unable to meet the general phases of this waiver,
a recipient still has the option to request that FHWA grant a project-
specific waiver under 23 U.S.C. 313, for iron, steel, and manufactured
products, and Section 70194(b) of the BIL, for construction materials.
The OMB Implementation Guidance also provides that, before granting
a waiver in the public interest, to the extent permitted by law,
agencies shall assess whether a significant portion of any cost
advantage of a foreign-sourced product is ``the result of the use of
dumped steel, iron, or manufactured products or the use of injuriously
subsidized steel, iron, or manufactured products.'' OMB Implementation
Guidance at p. 12. E.O. 14005 at Section 5 includes a similar
requirement for ``steel, iron, or manufactured goods.'' However,
because the public interest waiver that FHWA is proposing in this
notice is not based on consideration of the cost advantage of any
foreign-sourced steel, iron, or manufactured product content in EV
chargers, there is not a specific cost advantage for FHWA to now
consider.

Comment Period for Proposed Waiver

FHWA will consider comments received in the 30-day comment period
during our evaluation of the waiver request. This comment period length
exceeds the minimum comment period requirement in 23 U.S.C. 313(g), and
is consistent with the minimum comment period for reviewing general
applicability waivers specified in Section 70914(d) of the Act.
Comments received after this period, but before notice of our finding
is published in the Federal Register, may be considered to the extent
practicable. Section 117 of the SAFETEA-LU Technical Corrections Act of
2008 (Pub. L. 110-244, 122 Stat. 1572) requires an additional 5-day,
comment period after FHWA publishes a waiver finding notice. Comments
received during that period will be reviewed, but the finding will
continue to remain valid. Those comments may influence FHWA's decision
to terminate or modify a finding.

Issued in Washington, DC, under authority delegated in 49 CFR
1.85 on August 26, 2022.
Stephanie Pollack,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2022-18831 Filed 8-30-22; 8:45 am]
BILLING CODE 4910-22-P