Notice of Proposed Waiver of Buy America Requirements for Electric Vehicle Chargers, 53539-53547 [2022-18831]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[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 https://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 https://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 [email protected]. For legal questions, please 
contact Mr. Patrick C. Smith, FHWA Office of the Chief Counsel, 202-
366-1345, or via email at [email protected]. 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 https://www.regulations.gov using the docket number listed above. Electronic 
retrieval help and guidelines are also available at https://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