Waiver of Buy America Requirements for Electric Vehicle Chargers, 10619-10635 [2023-03498]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 88, Number 34 (Tuesday, February 21, 2023)]
[Notices]
[Pages 10619-10635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03498]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. 2022-0023]


Waiver of Buy America Requirements for Electric Vehicle Chargers

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

ACTION: Notice.

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SUMMARY: The Federal Highway Administration (FHWA) is establishing a 
temporary public interest waiver to waive Buy America requirements for 
steel, iron, manufactured products, and construction materials in 
electric vehicle (EV) chargers. This short-term, temporary waiver 
enables EV charger acquisition and installation to immediately proceed 
while also ensuring the application of Buy America to EV chargers by 
the phasing out of the waiver over time. On the effective date of this 
waiver, it will apply to all EV chargers manufactured by July 1, 2024, 
whose final assembly occurs in the United States, and whose 
installation has begun by October 1, 2024. Beginning with EV chargers 
manufactured on July 1, 2024, FHWA will phase out coverage under this 
waiver for those previously covered EV chargers where the cost of 
components manufactured in the United States does not exceed 55 percent 
of the cost of all components. This second phase will therefore apply 
to all EV chargers that are manufactured on or after July 1, 2024, 
whose final assembly occurs in the United States, and for which the 
cost of components manufactured in the United States is at least 55 
percent of the cost of all components. For all phases, EV charger 
housing components that are predominantly steel and iron are excluded 
from the waiver and must meet current FHWA Buy America requirements. As 
of the effective date of this waiver, FHWA is also removing EV chargers 
from its existing general applicability waiver for manufactured 
products.

DATES: The temporary waiver is effective starting on March 23, 2023.
    Comments may be submitted to FHWA's website via the link to this 
waiver on https://www.fhwa.dot.gov/construction/contracts/waivers.cfm 
by February 27, 2023.

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. David Serody, FHWA Office of Chief Counsel, 202-366-4241, 
or via email at [email protected]. Office hours for FHWA are from 8 
a.m. to 4:30 p.m., E.T., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

I. Background

A. Priorities of the Administration

    The Biden-Harris Administration has laid out a bold vision for 
making transformative transportation investments to support job growth 
and reshape the U.S. transportation system, strengthen the U.S. economy 
and competitiveness, and support a sustainable energy and climate 
future. In January 2021, President Biden issued Executive Order (E.O.) 
14008, titled ``Tackling the Climate Crisis at Home and Abroad'' (86 FR 
7619, Feb. 1, 2021). This E.O. states that the U.S. faces ``a climate 
crisis that threatens our people and communities, public health and 
economy, and starkly, our ability to live on planet Earth.'' The 
President directed the Federal Government ``to organize and deploy the 
full capacity of its agencies to combat the climate crisis to implement 
a governmentwide approach that reduces climate pollution in every 
sector of the economy,'' including through the ``deployment of clean 
energy technologies and infrastructure.'' The President has set the 
ambitious goal of building a national network of 500,000 EV chargers by 
2030.\1\
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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/.
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    On November 15, 2021, the President signed into law the Bipartisan 
Infrastructure Law (BIL), enacted as the

[[Page 10620]]

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 5 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 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. The 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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    \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/environmentalternative_fuel_corridors/resources/ev_funding_report_2022.pdf.
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    At the same time as the Administration seeks to ensure successful 
and timely delivery of EV infrastructure projects, the Administration 
also seeks to maximize the use of American made products and materials. 
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). This E.O. states that the U.S. 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.'' The FHWA is committed to 
ensuring strong and effective Buy America implementation consistent 
with E.O. 14005.

B. FHWA Buy America Requirements

    The FHWA's existing Buy America requirements for steel, iron, and 
manufactured products are set forth at 23 U.S.C. 313 and 23 CFR 
635.410. The FHWA also has a standing waiver under 23 U.S.C. 313(b), 
the Manufactured Products General Waiver, which has been in effect 
since 1983 and covers manufactured products that are not predominantly 
steel and iron and are funded under title 23, U.S.C.\4\ See 48 FR 53099 
(Nov. 25, 1983). Thus, FHWA's current Buy America requirements apply to 
FHWA-funded projects and 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. This requirement 
applies to the obligation of funds authorized to carry out title 23, 
U.S.C. In addition, 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 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. In addition, under 23 U.S.C. 
313(h), the Buy America requirements apply to all contracts that are 
eligible for FHWA assistance 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.
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    \4\ As explained in Section III.A below, while the Manufactured 
Products General Waiver continues to remain in effect, FHWA is 
removing EV chargers, as defined below, from its coverage.
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    The BIL also includes new Build America, Buy America (``BABA'') 
provisions to strengthen domestic manufacturing, which expand the 
coverage and application of Buy America preferences in Federal 
financial assistance programs for infrastructure. BIL, div. G sections 
70901-27. The BABA applies those requirements to obligations made after 
May 14, 2022. BIL section 70914(a). However, BABA's domestic content 
procurement preferences only apply 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 section 70917(a)-(b). Where they do apply, BABA requires 
that funds for a Federal financial assistance program for 
infrastructure may not be obligated for a project unless all of the 
iron, steel, manufactured products, and construction materials used in 
the project are produced in the United States. BIL section 70914(a). 
Under BABA, iron or steel products are considered to be produced in the 
United States if all manufacturing processes, from the initial melting 
stage through the application of coatings, occurred in the United 
States. BIL section 70912(6)(A). Manufactured products are considered 
to be produced in the United States if (i) the manufactured product was 
manufactured in the United States; and (ii) the cost of the components 
of the manufactured product that are mined, produced, or manufactured 
in the United States is greater than 55 percent of the total cost of 
all components of the manufactured product, unless another standard for 
determining the minimum amount of domestic content of the manufactured 
product has been established under applicable law or regulation. BIL 
section 70912(6)(B). Finally, under BABA, a construction material is 
considered to be produced in the United States if all manufacturing 
processes for the construction material occurred in the United States. 
BIL section 70912(6)(C).
    By statute at 23 U.S.C. 313, FHWA has domestic content preferences 
for steel, iron, and manufactured products, so the requirements under 
23 U.S.C. 313 apply to steel, iron, and manufactured products instead 
of the requirements under BABA. As FHWA's existing Buy America 
requirement does not specifically cover construction materials, other 
than to the extent that such materials would already be considered 
iron, steel, or manufactured products, the Buy America preferences 
under section 70914 of BABA apply for construction materials. For the 
purpose of this notice, ``Buy America requirements'' refers to FHWA's 
existing requirements for steel, iron, and manufactured products under 
23 U.S.C. 313 and requirements for construction materials under section 
70914 of BABA.
    The BABA further required the Office of Management and Budget (OMB) 
to issue guidance to assist in applying BABA's requirements. BIL 
section 70915. 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'' (``Implementation Guidance''). Section VII(b) of the 
Implementation Guidance states that ``Federal agencies may wish to 
consider issuing a limited number of general applicability public 
interest waivers in the interest of efficiency and

[[Page 10621]]

to ease burdens for recipients.'' Implementation Guidance at p. 10.
    Under 23 U.S.C. 313(b) and section 70914(b) of BABA, FHWA may 
consider a Buy America waiver when either (i) the application of the 
requirements under 23 U.S.C. 313(b) and section 70914 of BABA 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.\5\ This waiver is being issued on 
the basis of its consistency with the public interest.
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    \5\ Section 70914(b)(3) of BABA 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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C. Summary of FHWA's Proposed Waiver of Buy America Requirements for EV 
Chargers

    In order to ensure delivery and meaningful results on EV charging 
projects using Federal-aid highway funds throughout the U.S., FHWA 
issued a Notice of Proposed Waiver of Buy America Requirements for 
Electric Vehicle Chargers on August 31, 2022, at 87 FR 53539. The FHWA 
proposed a waiver of Buy America requirements with respect to steel, 
iron, manufactured products, and construction materials 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. 87 FR 53539. In doing so, FHWA 
also proposed removing EV chargers from the Manufactured Products 
General Waiver to allow for the uniform implementation of all Buy 
America requirements applicable to an EV charger. Through this proposed 
waiver, FHWA sought to treat EV chargers as manufactured products 
subject to their own, separate waiver. FHWA structured the proposed 
waiver to partially phase out over a specified timeframe to a domestic 
content threshold that is generally consistent with how manufactured 
products are covered under section 70914 of BABA. In proposing this 
waiver, FHWA considered information gathered from a November 24, 2021, 
Request for Information (RFI), published collectively by DOT and the 
U.S. Department of Energy. 86 FR 67115 (Nov. 24, 2021). In line with 
FHWA policy, Section 123 of Division A of Public Law 111-117, and 
Section 117 of Public Law 110-244, FHWA also included a link to the 
proposed waiver on its website.\6\
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    \6\ See https://www.fhwa.dot.gov/construction/contracts/waivers.cfm.
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    For the proposed waiver, FHWA proposed that the term ``EV charger'' 
include EV chargers and associated payment systems, distribution 
systems, telecommunications and networking equipment, energy storage 
systems, and other supporting equipment and systems that are (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. The 
FHWA proposed the term ``charger'' exclude parking areas adjacent to 
the EV chargers and lanes for vehicle ingress and egress.
    In the proposed waiver, FHWA proposed 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. The FHWA proposed to 
consider an EV charger as being ``installed in a project'' when the EV 
charger is permanently incorporated into or affixed to a Federal-aid 
funded infrastructure project. Following the initial proposed phase in 
calendar year 2022, FHWA proposed to partially phase-out the waiver in 
two steps during calendar year 2023. Beginning on January 1, 2023, FHWA 
proposed to remove from the waiver EV chargers whose final assembly 
does not occur in the United States. Beginning on July 1, 2023, FHWA 
proposed to additionally remove from the waiver EV chargers for which 
the cost of components manufactured in the U.S. does not exceed 25 
percent of the cost of all components. Beginning on January 1, 2024, 
and thereafter, FHWA proposed to remove from the waiver EV chargers for 
which the cost of components manufactured in the U.S. does not exceed 
55 percent of the cost of all components. The final waiver, which would 
be applicable only if final assembly occurred in the U.S. and the cost 
of components manufactured in the U.S. exceeded 55 percent of the cost 
of all components, was proposed as remaining in place until terminated 
by FHWA.
    In the proposed waiver, FHWA proposed that the cost of components 
that are purchased when they are incorporated into an EV charger be 
determined by including 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). The FHWA proposed that the cost of manufactured components 
include all costs associated with the manufacture of the component 
(including transportation costs and quality testing), and allocable 
overhead costs, but FHWA proposed to exclude profits and any labor 
costs associated with the manufacture of the end product. The FHWA 
proposed that costs include costs incurred specifically for the 
contract; benefit both the contract and other work and can be 
distributed to each in reasonable proportion to the benefits received; 
or are necessary to the overall operation of the business, even if a 
direct relationship to any particular cost objective cannot be shown.
    In the proposed waiver, FHWA requested comments on all aspects of 
the proposed waiver, including the definition of ``EV charger;'' the 
phases of the proposed schedule set forth in the proposed waiver; 
alternative dates and supporting information for alternative dates if 
applicable; whether there should be four phases as proposed; how many 
chargers would be fully compliant with BABA requirements at each phase 
of the proposed waiver and by the end of the 5-year NEVI Program and 
how many would not be compliant at each phase; the reliability of 
chargers; the cost completeness of chargers; production rates and 
capacity of chargers; the timing of delivery upon the order or purchase 
of chargers; whether industry expects its production rates and capacity 
for chargers to be consistent with the proposed schedule; how the 
proposed schedule or alternative dates impact installation schedules in 
the field; whether to establish different phase-out schedules for 
Direct Current Fast Charging (DCFC) chargers and Alternating-Current 
Level 1 (ACL1) and Level 2 (ACL2) chargers; the proposed meaning of 
cost of component; whether to use the installation date of the EV 
charger or some other date to determine which phase a given charger 
would be covered by; whether and how to apply FHWA's existing Buy 
America requirement for iron and steel to any specific predominantly 
steel and iron EV charger components; and the reliable availability of 
such steel and iron components which are capable of complying with 
FHWA's existing Buy America policy.

II. Summary of Major Changes Reflected in the Final Waiver

    In light of the comments received on the proposed waiver 
demonstrating the inability of EV charger manufacturers to produce a 
steady and reliable supply of EV chargers, FHWA is making several 
changes to the timeline in the final waiver for multiple reasons 
described in further detail below, including to allow manufacturers 
additional time to domestically source components for their EV 
chargers:

[[Page 10622]]

    1. FHWA is eliminating the proposed first phase in the proposed 
waiver, which would have applied a complete waiver of Buy America 
requirements to EV chargers and all components of EV chargers.\7\
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    \7\ Throughout this notice, this phase will be referred to as 
the ``complete waiver'' phase.
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    2. The start date of the second phase of the proposed waiver (the 
first phase of the final waiver), which removes from the waiver EV 
chargers whose final assembly process does not occur in the U.S., will 
now occur on the effective date of this waiver instead of January 1, 
2023, and the end date of this phase has been extended to June 30, 
2024.\8\ In addition, during this phase, any housing components that 
are predominantly steel and iron must comply with existing FHWA Buy 
America steel and iron requirements, meaning that if predominantly iron 
and steel housing is used for the EV charger, the housing must be 
entirely manufactured in the United States according to FHWA standards.
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    \8\ Throughout this notice, this phase will be referred to as 
the ``final assembly phase.''
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    3. The third phase of the proposed waiver, which would have removed 
from the waiver EV chargers for which the cost of components 
manufactured in the U.S. does not exceed 25 percent of the cost of all 
components, has been eliminated in the final waiver.\9\
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    \9\ Throughout this notice, this phase will be referred to as 
the ``25 percent phase.''
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    4. The start date of the fourth phase of the proposed waiver (the 
second phase of the final waiver), which removes from the waiver EV 
chargers for which the cost of components manufactured in the U.S. does 
not exceed 55 percent of the cost of all components, has been extended 
from beginning on January 1, 2024, as in the proposed waiver, to 
beginning on July 1, 2024.\10\ In addition, any housing components that 
are predominantly steel and iron must continue to comply with FHWA Buy 
America steel and iron requirements, meaning that the housing must be 
entirely manufactured in the United States according to FHWA standards. 
The cost of predominantly steel and iron EV charger housing will also 
count towards determining whether 55 percent of the cost of all 
components are manufactured in the U.S.
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    \10\ Throughout this notice, this phase will be referred to as 
the ``55 percent phase.''
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    5. As required under section 70914(d) of BABA, FHWA is clarifying 
that it will revisit this waiver and determine whether there is 
continued need for it within 5 years from the effective date of this 
notice. The FHWA will also publish RFIs every 6 months until the start 
of the 55 percent phase to acquire information about the state of the 
EV charging industry.
    6. The proposed waiver also used the installation date of the EV 
charger to determine which phase of the waiver would apply to any given 
EV charger. The final waiver instead uses the date on which an EV 
charger is manufactured, which is defined in further detail below in 
Section III.C. However, any EV chargers manufactured before June 30, 
2024, (the end of the final assembly phase) will need to begin 
installation by October 1, 2024, to be covered by this waiver.
    7. The FHWA also has simplified and narrowed the definition of ``EV 
charger'' in a manner that will maximize the use of domestic goods, 
products, and materials. The proposed waiver defined ``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. The definition of ``EV charger'' as used in this final waiver 
only refers to the self-contained EV charging unit; it does not include 
associated equipment.
    The reasons for these changes are discussed in more detail in the 
next section.

III. Response to Comments Received

    The FHWA received 92 comments and 1 supplemental comment from 89 
different commenters, including automobile manufacturers, EV charger 
manufacturers, EV charger installers, members of the steel and aluminum 
industries, labor organizations, private associations, public 
associations, local public agencies, State departments of 
transportation (State DOT), and several individuals. While several 
commenters raised objections to the waiver as proposed, most commenters 
were in favor of some version of a waiver of applicable Buy America 
requirements. The FHWA discusses the main objections to the proposed 
waiver and major categories of comments below.
    In accordance with section 70916(c) of BIL, FHWA consulted with the 
National Institute of Standards and Technology's Hollings Manufacturing 
Extension Partnership before issuing this waiver.

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

    The proposed waiver suggested removing EV chargers from FHWA's 
Manufactured Products General Waiver. By doing so, the manufactured 
product content in EV chargers would be subject to the requirements of 
23 U.S.C. 313, with this waiver serving to provide a phased approach to 
exempt certain chargers from these requirements over time. The FHWA 
stated that continuing to apply the Manufactured Products General 
Waiver to EV chargers would be inconsistent with the objectives of BABA 
and is not supported by currently available information on domestic 
manufacturing capabilities. Removing EV chargers from the Manufactured 
Products General Waiver and issuing this final waiver allows all 
aspects of EV chargers to be covered by a single waiver and thus Buy 
America-compliant. The FHWA believes that individuals who take 
advantage of this waiver can avoid confusion and know the domestic 
content procurement preferences applicable to EV chargers.
    The FHWA did not receive substantive comments objecting to this 
approach and is therefore removing EV chargers, as defined in this 
waiver, from FHWA's existing Manufactured Products General Waiver.

B. Opposition to the Proposed Waiver

    Eight commenters, (the Steel Manufactures Association (SMA), United 
Steelworkers, Nucor Corporation, Aluminum Extruders Fair Trade 
Committee (AEFTC), American Iron and Steel Institute (AISI), Alliance 
for American Manufacturing (AAM), BorgWarner, Inc., and the American 
Federation of Labor and Congress of Industrial Organizations) expressed 
that they did not support the proposed waiver, presenting various 
objections that are summarized below:
    Indefinite Duration of Proposed Waiver: SMA and the Nucor 
Corporation criticized the proposed waiver as being of an indefinite 
duration, arguing that this was contrary to OMB's Implementation 
Guidance, which stated that waivers should be time-limited. United 
Steelworkers also noted that FHWA's Manufactured Products General 
Waiver remains in place after almost 40 years and was concerned that 
FHWA would similarly fail to narrow the proposed waiver after its 
initialization.
    The FHWA Response: FHWA agrees that the waiver is not, and should 
not be, indefinite and, as clarified in more detail below, will review 
the waiver

[[Page 10623]]

(including by providing an opportunity for public notice and comment) 
within 5 years of its issuance, and will discontinue the waiver if it 
is found to no longer be in the public interest at that time, in 
accordance with section 70914(d) of BABA. The FHWA will also monitor 
the domestic supply of EV chargers throughout the course of this waiver 
and may choose to discontinue this waiver or make changes to the 
timeline described below if FHWA finds that there is a sufficient 
domestic supply of EV chargers available. Specifically, as further 
explained below, this waiver will only feature two phases: a final 
assembly phase and, after a phase-out period, a 55 percent phase. 
During the final assembly phase, FHWA will conduct biannual RFIs to 
assess industry progress on producing a charger that would be covered 
by the 55 percent phase and whether the EV charger industry is on track 
to meet the timeline set out in this waiver. Based on information 
received during these RFIs, FHWA may determine during the final 
assembly phase that domestic manufacturing capacity is able to produce 
a sufficient amount of chargers to meet the demand of recipients that 
would exist under the 55 percent phase. If this occurs, FHWA may 
discontinue the final assembly phase and proceed immediately to the 55 
percent phase by phasing out from this waiver's coverage EV chargers 
for which the cost of components manufactured in the U.S. does not 
exceed 55 percent of the cost of all components.
    Congressional Intent of Domestic Content Preferences: AISI and the 
Nucor Corporation argued that the proposed waiver was contrary to 
Congress' intent in establishing Buy America requirements, as these 
commenters believed that Congress intended Buy America requirements to 
cover all items made primarily of iron and steel. The SMA, AAM, and 
Nucor Corporation added that it is the Administration's policy to 
maximize the use of domestic steel, iron, manufactured products, or 
construction materials in federally funded infrastructure, not to use 
foreign items. Similarly, objecting commenters argued that the waiver 
is contrary to Congress' intent in passing BABA, noting the 
Congressional findings in section 70911 of BABA and stating that 
section 70914(a) required that FHWA ensure that Buy America 
requirements apply to iron, steel, manufactured products, and 
construction materials.
    The FHWA Response: FHWA acknowledges that compliance with Buy 
America is both an Administration priority and required under Federal 
law. Also, EV chargers purchased using funds from the NEVI Formula 
Program established by Congress as part of BIL are to be administered 
under title 23, U.S.C.,\11\ including the Buy America requirements 
under 23 U.S.C. 313. At the same time, however, FHWA does not believe 
that Congress envisioned applying FHWA's Buy America requirement (now 
codified at 23 U.S.C. 313) to EV chargers when it first enacted these 
requirements, starting in 1978 with the Surface Transportation 
Assistance Act of 1978 (Pub. L. 95-599). Rather, for the foreseeable 
future where this waiver is necessary to encourage domestic industry to 
ramp up production of EV chargers, it furthers Congressional intent for 
EV chargers purchased through the NEVI Program to more closely align 
with the requirements of BABA, which, like the NEVI Formula Program, 
was also established in BIL.
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    \11\ See BIL, Division J, Title VIII, Highway Infrastructure 
Program heading, Paragraph 2, twenty-fourth proviso.
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    Pursuant to its authority under Buy America, FHWA believes it is in 
the public interest, as well as more in harmony with the Congressional 
intent behind BABA and the BIL, to waive certain Buy America 
requirements for a temporary period when FHWA is not convinced that 
manufacturers would be able to meet demand for Buy America-compliant EV 
chargers on FHWA-funded projects, which would threaten the ability for 
those infrastructure projects to be completed in a timely manner. The 
FHWA believes it most appropriate to carry out Congress' intent to 
timely complete EV charger infrastructure projects and ensure that the 
steel, iron, manufactured products, and construction materials used in 
infrastructure projects are produced in the United States through a 
specially tailored waiver that balances the need to have a supply of EV 
chargers with the need to ramp up domestic production through a phased 
approach, which, during the 55 percent phase, will cover EV chargers in 
close alignment with the BABA standards for manufactured products. The 
FHWA also proposed and intends to implement a final waiver with a 
phased approach, which provides an incentive for manufacturers to shift 
toward domestic manufacturing processes to comply with the narrowing 
scope of the waiver.
    Further, as discussed in more detail below, FHWA plans to exclude 
the housing, cabinet, or enclosure of an EV charger (hereinafter 
referred to as the ``housing'') of EV chargers, if that component is 
predominantly steel or iron, from coverage under both phases of this 
waiver. Doing so gives effect to FHWA's long-standing practice of 
excluding predominantly steel and iron components of manufactured 
products from the Manufactured Products General Waiver. This also seeks 
to remove uncertainty among recipients \12\ and the EV charger industry 
over which components would need to comply with FHWA's existing 
requirements for iron and steel. The FHWA believes that this final 
waiver therefore is consistent with the public interest and is 
justified pursuant to section 70914(b)(1) of BABA.
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    \12\ When used in this notice, a recipient refers to direct 
recipients of FHWA financial assistance, subrecipients, and pass-
through entities.
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    Presence of Buy America-Compliant EV Chargers: The eight commenters 
that objected to the proposed waiver also disputed points made in the 
notice justifying the proposed waiver and claimed that this meant that 
there was no public interest justification for the proposed waiver. The 
Nucor Corporation, AEFTC, and BorgWarner, Inc., for example, stated 
that there are existing EV chargers that are compliant with FHWA's Buy 
America requirements and that a waiver would disadvantage these 
manufacturers that have already made significant investments to be Buy 
America-compliant. These commenters pointed to companies that responded 
in the 2021 RFI by stating that their EV chargers met FHWA's Buy 
America requirements for steel and iron as well as other companies that 
have stated that they can meet FHWA's overall Buy America requirements.
    The FHWA Response: While FHWA acknowledges the progress that some 
companies have made in manufacturing Buy America-compliant EV chargers, 
FHWA is still uncertain whether these companies can respond to the 
immediate demand for EV chargers that will result from programs under 
BIL, such as the NEVI Formula program and supply equipment that is 
certified as fully Buy America-compliant. The FHWA is also unsure if 
statements that existing EV chargers are Buy America-compliant are 
relying on the Manufactured Products General Waiver being available to 
cover non-domestic components that are not predominantly steel or iron. 
While some manufactures may be able to domestically assemble chargers 
at the present, FHWA is concerned that many manufacturers could not 
produce Buy America-compliant chargers without the Manufactured 
Products General Waiver being in effect. The FHWA believes, as noted 
above, that removing EV chargers

[[Page 10624]]

from the Manufactured Products General Waiver aligns with the goals of 
Buy America requirements and seeks to ensure that EV chargers are 
produced with domestic manufactured components. Finally, FHWA seeks to 
reiterate that this waiver does not prohibit the purchase of Buy 
America-compliant EV chargers by a recipient if such chargers are 
available; the comments received, however, indicate a limited supply of 
EV chargers that is currently insufficient to ensure that EV charger 
infrastructure projects are delivered on time, which is the basis for 
this waiver.
    Existing Buy America Processes: Similarly, commenters mentioned 
that FHWA has long-standing and well-developed regulatory and 
administrative rules related to the implementation and enforcement of 
Buy America requirements for steel and that suppliers on FHWA projects 
have needed to comply with these steel requirements for decades. 
According to these commenters, this history of compliance meant that 
there should be no uncertainty and no additional time needed to comply 
with Buy America steel requirements as applied to EV chargers, contrary 
to what they argued was depicted in the proposed waiver.
    The FHWA Response: FHWA agrees that there are steel suppliers who 
are highly knowledgeable about FHWA's Buy America requirements as they 
apply to steel. At the same time, EV chargers that are currently on the 
market may not have been designed to be compliant with FHWA's Buy 
America requirements, especially considering that they may have been 
designed with the belief that they would be covered by FHWA's 
Manufactured Products General Waiver. Further, they may contain steel 
components obtained from suppliers all over the world. The FHWA 
believes that the presence of steel in an EV charger does not mean that 
recipients could comply with Buy America requirements merely by 
complying with existing Buy America steel requirements. Further, it is 
not clear to FHWA that EV chargers that are currently available on the 
market use Buy America compliant steel, or that other aspects of the EV 
charger would not render them noncompliant with Buy America 
requirements without this waiver going into effect. Again, FHWA 
stresses that the purpose of this waiver is to encourage manufacturers 
of EV chargers to transition to a point where they utilize components 
manufactured in America, including those made out of steel. As noted 
below, while the housing of an EV charger is a specific component that 
when made predominantly of iron and steel does not need to be covered 
by this waiver, this is not true for all components of EV chargers.
    Traceability of Steel Inputs: The Nucor Corporation, SMA, and AISI 
also argued that certifying that steel is Buy America-compliant is not 
new or difficult, contrary to how they claimed it was presented as a 
justification for the proposed waiver. These commenters stated that 
there is nothing unique about the steel used in EV chargers that would 
make Buy America certification more difficult, as mill test 
certificates for steel inputs are routinely provided to distributors 
and fabricators that these commenters allege provide complete 
traceability throughout the distribution chain.
    The FHWA Response: FHWA understands that steel producers have 
developed certain methods they use to certify that their steel is Buy 
America-compliant, but FHWA does not believe that this affects the need 
for this waiver. As set out in the proposed waiver, there is a need to 
establish compliance and certification processes focused specifically 
on EV chargers. The FHWA does not believe that just because there are 
existing processes for certifying that steel is Buy America-compliant 
intrinsically means that there are existing processes for certifying 
that the EV charger and all of its components are Buy America-
compliant.
    At the same time, as described in more detail below, FHWA does 
believe that these commenters make a valid point for predominantly 
steel and iron components of EV chargers that are widely available from 
domestic suppliers. This is one of the reasons why FHWA is excluding 
the housing of a charger if it is predominantly iron or steel from 
coverage under this waiver. The commenters' point, however, does not 
hold for other components that are not predominantly iron or steel and 
for which the ability for any small amount of steel to be accurately 
traced in them does not necessarily ensure that the EV charger is Buy 
America-compliant.
    Environmental Impacts of Foreign Steel: The Nucor Corporation, SMA, 
and AISI further claimed that foreign steel is often produced and 
transported with significantly higher greenhouse gas emissions that 
would occur with domestic production and transportation, which they 
argued meant that allowing for the use of foreign steel would be 
counter to the environmental goals undergirding the purchase and 
installation of EV chargers.
    The FHWA Response: Through this waiver, FHWA seeks to incentivize 
domestic manufacturers to ramp up production and make needed 
investments to build and expand domestic production in order to support 
a sustainable energy and climate future. The FHWA does not intend for 
recipients of FHWA financial assistance to continue to rely on 
components manufactured overseas that might have steel in them to the 
extent practical once those components are manufactured and available 
in the United States; this is the intent behind the phase-out of 
chargers for the 55 percent phase and potential future phases. Further, 
while FHWA's existing Buy America requirements would apply to any steel 
or iron component of an EV charger, they would not cover the charger 
itself. The FHWA believes that this waiver, which, after a phase out 
period, waives Buy America requirements only for EV chargers where 
final assembly occurs in the U.S. and the cost of components 
manufactured in the U.S. exceeds 55 percent of the cost of all 
components, which would align with BABA's requirements for manufactured 
products, encourages recipients, their contractors, and subcontractors 
to utilize more domestic steel than under FHWA's existing Buy America 
requirements.

C. Applicability Date of Waiver and Waiver Phase-Out Periods

    Thirty-three commenters recommended a different date of 
applicability than the installation date used in the proposed 
waiver.\13\ Commenters noted that there may be a significant difference 
in time between when a product is manufactured and when it is installed 
due to unforeseen circumstances, such as permitting delays, supply 
chain constraints, utility interconnection delays, delivery delays, 
prolonged adverse weather, potential workforce shortages, and routine 
certification and quality checks that commercial operators perform on 
industrial products before putting them into service. Such 
circumstances could result in EV chargers being manufactured during one 
phase of the proposed waiver (and consistent with the requirements in 
place during that phase) and installed in another,

[[Page 10625]]

resulting in those chargers no longer being covered by this waiver and 
risking them not being Buy America-compliant. These commenters stated 
that relying on the installation date would prevent recipients, their 
contractors, subcontractors, and EV charger manufacturers from knowing 
which phase of the proposed waiver any given EV charger might be 
covered by, creating uncertainty and financial risk; commenters warned 
that this could discourage parties from moving forward with purchase 
decisions until the start of the 55 percent phase. The EV charger 
manufacturers also noted that they would not be able to certify with 
certainty that their EV chargers were covered by this waiver and 
therefore Buy America-compliant, as they would have no control over the 
date their chargers were installed. Finally, commenters pointed out 
that using the date of installation would potentially risk 
manufacturers either producing a glut of EV chargers that could not be 
used on FHWA-assisted projects or that manufacturers would delay 
producing chargers until those chargers would be compliant with the 55 
percent phase to ensure their ability to be used in FHWA-funded 
projects.
---------------------------------------------------------------------------

    \13\ Unlike the effective date, which is the date where this 
waiver's first phase would begin, the date of applicability refers 
to the date on which an event occurs that determines which phase of 
this waiver would cover a specific EV charger. For example, under 
this final waiver, an EV charger with a date of applicability of 
July 20, 2023, would need to have final assembly occur in the United 
States to be covered by this waiver. An EV charger with a date of 
applicability of July 20, 2024, on the other hand, would need to 
have final assembly occur in the United States and have at least 55 
percent of the cost of all components manufactured in the United 
States to be covered by this waiver.
---------------------------------------------------------------------------

    In terms of alternatives, the most common suggestion made by 
commenters, including Wallbox, USA, Inc. (Wallbox), PowerCharge, bp 
pulse fleet, the Electric Vehicle Charging Association (EVCA), Tesla, 
Inc. (Tesla), the American Association of State Highway Traffic 
Officials (AASHTO), and the Associated General Contractors of America 
(AGC), recommended that FHWA use the manufacture date of the EV charger 
as the date of applicability. AASHTO noted that this would allow EV 
charger manufacturers to sell and install equipment that had been 
manufactured prior to this waiver's effective date. The AGC commented 
that using the manufacture date would reduce the opportunity for 
external factors to cause delays, as the manufacture date occurs at the 
beginning of the EV charger production process. Wallbox stated that 
using the date of final assembly as the date of applicability could 
allow EV suppliers to streamline reporting and enforcement of Buy 
America requirements.
    Eight commenters (including Revel Transit (Revel), EVgo, Electrify 
America, LLC (Electrify America), and FreeWire Technologies (FreeWire)) 
recommended that the date on which FHWA obligated funds be used as the 
date of applicability, arguing that it was more predictable than the 
date of installation. The Kansas Department of Transportation (KDOT) 
commented that using the date of obligation would allow recipients to 
move forward on EV charging infrastructure projects with an exact 
understanding of how this waiver would apply to their projects; EVgo 
similarly stated that this would ensure applicants for FHWA financial 
assistance would be aware of what phase of this waiver would be 
applicable to their project. The Maryland Department of Transportation 
(MDOT) stated that using the date of obligation would allow vendors to 
provide existing EV chargers for projects to enable those projects to 
be implemented as soon as possible.
    Other commenters recommended using the date on which an EV charger 
is purchased as the date of applicability for this waiver and its 
phases. Volta Inc. (Volta) stated that the date a charger is purchased 
is the date at which vendors solidify pricing and orders with their 
suppliers. Shell USA, Inc. (Shell) commented that using the purchase 
date as the date of applicability would enable both the project 
applicant and their EV charger vendor or supplier to ascertain their 
ability to be covered under this waiver and its phases with a high 
degree of predictability.
    Other suggestions for the date of applicability included the date 
on which a solicitation is released, the date where the funding 
agreement between the FHWA and awarded entity is executed, the date on 
which the submission of bids for the project is due, the date that the 
EV charger is shipped from the manufacturer, the date of delivery of 
the EV charger, and to match the phase of the waiver with funding 
dedicated for specific fiscal years.
    The FHWA Response: After reviewing the comments, FHWA agrees that 
relying on the date of installation to determine the date of 
applicability is impractical. Due to the current unavailability of Buy 
America-compliant EV chargers, as well as other factors noted by 
commenters such as the time to acquire proper permits and approvals 
that might delay installation after procurement of an EV charger, 
recipients of FHWA financial assistance who purchase EV chargers might 
not know when those chargers will be installed on their EV 
infrastructure projects at the time of purchase. Using the installation 
date as the date of applicability could mean that those recipients, 
their contractors, and subcontractors would face uncertainty over 
whether, by the time an EV charger is installed, that EV charger would 
still be covered by the phase of the waiver existing when the charger 
was purchased, which FHWA believes will determine how that charger is 
manufactured. The FHWA acknowledges that uncertainty surrounding when a 
procured EV charger will be installed could result in parties waiting 
to purchase EV chargers until the 55 percent phase of this waiver, 
which goes against the purpose of this waiver in promoting the timely 
delivery of EV infrastructure projects.
    In considering alternative effective dates, FHWA acknowledges that 
the goal should be to provide certainty to EV charger manufacturers and 
to those purchasing EV chargers with Federal-aid funds that the EV 
charger they will manufacture, purchase, and install will comply with 
this waiver. For that reason, FHWA agrees with the plurality of 
commenters suggesting an alternative and believes that the most 
appropriate date of applicability would be the date on which an EV 
charger is manufactured. The FHWA considers the ``date of manufacture'' 
to be the date on which the EV charger, as defined further below, has 
its final assembly occur and is in an operational state. The 
manufacturer will be in the best position to know if their chargers 
comply with this waiver, as they would be the ones to ensure that the 
chargers are domestically assembled or sourced. A purchaser can 
therefore be confident that, for example, if they enter into a purchase 
order for a charger that is domestically assembled to comply with the 
final assembly phase of this waiver, they will receive a charger 
compliant with this waiver so long as the manufacturer can manufacture 
a domestically assembled charger by June 30, 2024. If a manufacturer 
cannot, a purchaser can turn to another manufacturer to receive a 
charger that complies with this waiver.
    To ensure the timely delivery of EV charger infrastructure 
projects, for EV chargers manufactured during this waiver's final 
assembly phase, FHWA expects recipients will begin installation of 
those EV chargers by October 1, 2024.

D. Timeline of Waiver

    Removing Phases from the Waiver: The most common category of 
comment FHWA received on the proposed waiver was with respect to the 
phase-out timeline proposed. Of 89 unique commenters, 48 recommended an 
extension for the waiver. Of the other 41 commenters, 17 agreed with 
the need for a waiver without mentioning extending the proposed 
waiver's timelines, 5 had an unclear position, 3 did not mention 
extending the waiver's timeframes but instead requested that the waiver 
have a flexible duration, 2 argued that the final waiver should not

[[Page 10626]]

have any phases, and the remaining 14 argued against a waiver 
entirely.\14\
---------------------------------------------------------------------------

    \14\ Eight of these 14 commenters were the commenters mentioned 
in Section III.A. The remaining six presented objections against the 
waiver without providing substantive arguments as to their 
reasoning.
---------------------------------------------------------------------------

    The two commenters who argued that the final waiver should not have 
any phases, FreeWire and Broadband Telecom Power, Inc. (BTC Power), 
stated that the proposed phases were unnecessary, added compliance 
tracking challenges for the industry, and lacked commensurate benefit 
for EV charging projects. FreeWire also stated that they assumed some 
EV charger manufacturers would be able to more readily source 
components domestically than perform final assembly domestically. 
Instead of phases, BTC Power recommended that the waiver start on its 
effective date with the 55 percent phase.
    The FHWA Response: FHWA does not agree that a single-phase approach 
would serve the public interest more than a waiver where coverage of 
certain chargers is gradually phased out through phases. As noted 
below, commenters raised many more concerns with domestically sourcing 
components than they did with ensuring that final assembly of EV 
chargers occurs in the United States, and FHWA believes that EV charger 
manufacturers will be able to assemble chargers domestically before 
they are able to ensure that 55 percent of components, by cost, are 
manufactured in the United States. The FHWA received no indication that 
there were manufacturers who would have more difficulty having final 
assembly of their chargers occur in the United States, beyond 
FreeWire's assumption, and FHWA does not believe the hypothetical 
existence of such companies justifies adding complexity to the waiver.
    The FHWA also believes that the phased approach provides an 
incentive to manufacturers to ramp up production while, crucially, 
ensuring that there is a steady supply of EV chargers available that 
covered by this waiver and therefore Buy America-compliant. Having the 
waiver start at the 55 percent phase, like BTC Power suggested, risks 
having a limited supply of covered chargers at this waiver's effective 
date, which may unnecessarily delay EV charger infrastructure projects. 
Further, this waiver does not require that EV charger manufacturers 
create chargers that comply with any given phase; manufactures may 
choose to ignore this waiver and produce otherwise Buy America-
compliant chargers. What this waiver does is provide certainty to how 
manufactures can achieve Buy America compliance and sets steps for them 
to reach a point where an EV charger would be covered if the EV charger 
met certain conditions similar to the requirements imposed on a 
manufactured product under BABA.
    Extension of Waiver's Time Periods: Of the 48 commenters arguing 
for an extension of the waiver, there were various suggestions on how 
long that extension should be. Some commenters, such as AASHTO, argued 
for extending the dates of the final assembly, 25 percent, and 55 
percent phases by 2 years from what was in the proposed waiver. Others, 
such as the Electric Drive Transportation Association and PowerCharge, 
recommended extended those same dates by 1 year from what was in the 
proposed waiver. Still others recommended extending those dates by 6 
months from what was in the proposed waiver. Finally, many commenters 
argued for modifying the dates of the phase-out periods from the 
proposed waiver in non-uniform durations. Tesla, for example, 
recommended keeping the start of the final assembly phase on January 1, 
2023, but recommended delaying the start of the 25 percent and 55 
percent phases by 6 months. The Ford Motor Company (Ford), Wallbox, and 
Blink Charging Co. (Blink Charging) similarly recommended keeping the 
start of the final assembly phase at January 1, 2023, but recommended 
delaying the start of the 25 percent phase by 6 months and the start of 
the 55 percent phase by 1 year. Finally, several commenters also asked 
for FHWA to evaluate the progress of the EV charger industry and listen 
to feedback from recipients and the EV charger industry to determine 
whether phases should be subsequently extended.
    These 48 commenters routinely mentioned that the proposed waiver's 
timeline was not achievable and that an extension was necessary to 
ensure that EV chargers which would be covered by this waiver would be 
available. Some commenters stated that EV charger manufacturers would 
not be able to domestically assemble EV chargers on the proposed 
waiver's timeframe. EVgo, for instance, stated that domestically 
assembled chargers would not be available at sufficient scale by 
January 1, 2023, and Electrify America commented that they thought 
domestic assembly of 150 kilowatt (kW) EV chargers would be underway 
industry-wide only by the latter half of 2023, with reliability testing 
concluding and those chargers being available for purchase in 2024. 
EVgo further commented that it conducts up to a yearlong 
``qualification process'' for new suppliers which requires a nearly 
produced or produced test unit.
    Multiple members of the EV charging industry argued in favor of 
extending the proposed waiver's timeframe, generally due to concerns 
with sourcing EV charger components domestically to allow a charger to 
be covered under the 55 percent phase.\15\ The only EV charger 
manufacturer who stated that they could meet the proposed waiver's 
timeframes was ABB E-Mobility.
---------------------------------------------------------------------------

    \15\ As noted above, several members of the EV charging industry 
did not comment on the proposed waiver's timeframe, including 
Tritium, Siemens, Enel X Way, TeraWatt, and FLO EV Charging. 
ChargePoint commented that a blanket waiver for ACL2 chargers should 
be extended until January 1, 2024, without making clear when 
subsequent phases for these chargers would start; this point is 
discussed in Section III.C further below. The bp pulse fleet did not 
comment either way, stating that it would rely on others to speak to 
the appropriate schedule.
---------------------------------------------------------------------------

    FreeWire requested an extension so that recipients and the EV 
charger industry could have time to complete a thorough assessment of 
the cost of components and to establish proper certifications. FreeWire 
also stated that FHWA was underestimating the complexity and long-lead 
time it would take to source components and that ongoing supply chain 
disruptions limited the availability of domestic components. For these 
reasons, FreeWire requested that all Buy America requirements become 
effective on July 1, 2024, one-and-a-half years after the final 
assembly phase and 6 months after the 55 percent phase would have 
started in the proposed waiver.
    SK Signet commented that while domestic assembly might be 
achievable in the near future, some components are not available from 
domestic sources, while other components were available domestically 
but at vastly greater prices than foreign components. SK Signet 
recommended delaying the start of the final assembly phase until July 
1, 2023, and the 55 percent phase until January 1, 2026.
    Blink Charging stated that establishing sufficient domestic 
production, securing new suppliers, and validating the safety of their 
products takes time, which is amplified by the ongoing equipment and 
materials shortages and shipment delays stemming from global supply 
chain constraints. Blink Charging further commented that these 
constraints are particularly acute for DCFC components and recommended 
a 1-year delay in phase-out dates.
    Wallbox stated that it would be ready for final assembly in the 
U.S. shortly but

[[Page 10627]]

that there were significant challenges facing the industry in terms of 
the procurement and sourcing of components, which would be exacerbated 
by the demand for components caused by the NEVI Formula Program. 
Wallbox suggested having the final assembly phase start on January 1, 
2023, as proposed in the waiver, with subsequent phase-out periods each 
starting 1 year later. Wallbox did not clearly indicate that they could 
domestically assemble EV chargers by January 1, 2023; however, they 
hinted that they could and did not recommend an extension to the 
proposed waiver's January 1, 2023, date.
    Volta, on the other hand, commented that they believed it possible 
to domestically assemble EV chargers by January 1, 2023, but thought 
that starting the 55 percent phase on January 1, 2024, was unreasonable 
based on its suppliers' low confidence of being able to produce an EV 
charger that could be covered by the 55 percent phase.
    Among other companies, WiTricity stated that many EV charger 
components are not manufactured in the United States, which they stated 
would only happen if chargers were manufactured in sufficient volume to 
generate adequate demand. Tesla added that an extension to the timeline 
of the proposed waiver would allow manufactures time to fully assess 
their supply chains, calculate domestic content values, enter into new 
supply agreements, and reorient their supply chains.
    Many State officials also argued in favor of extending the proposed 
waiver's timeframe for the same reasons mentioned by EV charger 
manufacturers.\16\ The AASHTO similarly claimed delays and increased 
costs could result if EV charging equipment providers were required to 
shift component sourcing to domestic suppliers, who may struggle with 
availability due to limited quantities of EV chargers and EV charger 
components and high demand. The AASHTO also commented that the 
practical ability for the industry to source American-made EV charger 
components would take longer than the proposed timeframe permitted.
---------------------------------------------------------------------------

    \16\ The AASHTO, the National Association of State Energy 
Officials, and a total of 18 State DOTs submitted comments, with all 
but one State DOT, the New Jersey Department of Transportation 
(NJDOT), indicating that the proposed timeline is not achievable. 
The NJDOT instead argued in favor of a temporary waiver without 
specifically commenting on its proposed timeframe.
---------------------------------------------------------------------------

    State DOTs also requested the proposed timeline be extended due to 
the experience they have had in attempting to procure EV chargers. 
State DOTs pointed to the fact that orders placed for EV chargers 
remain unfilled after considerable time due to supply chain issues. The 
KDOT stated that they had heard from their stakeholders that wait times 
for some electrical components in EV chargers stretched to 60-80 weeks, 
even without considering the increased demand created by the 
investments under BIL. The KDOT also commented that although there are 
some manufacturers with currently available equipment that is Buy 
America-compliant, they did not believe there was adequate capacity yet 
to fill the rapidly expanding need for EV chargers.
    In essence, these commenters stated that the current delay in 
producing EV chargers meant that chargers may be ready for purchase 
after some phases of the proposed waiver have already ended, with 
particular emphasis on this being the case for the first phase, which 
was proposed as ending on December 31, 2022. FreeWire stated that they 
doubted whether any States would complete the installation of NEVI 
projects before the first quarter of 2024, at the earliest. FreeWire 
also stated that they expected it to take State administrators several 
months to design and issue solicitations, with some States expected to 
take longer as they have indicated that they would take 1 to 2 years 
conducting further planning before beginning the procurement process. 
For the States that do issue solicitations for NEVI projects in the 
next several months, FreeWire commented that they expected the 
solicitation period to last several more months, with more time being 
taken for States to make awards. Similarly, EVgo commented that many 
States plan to solicit proposals for charging stations beginning in 
late 2022 and extending into early 2023. The Georgia Department of 
Transportation (GDOT) mentioned that it may not be ready to install EV 
chargers until well after 2022, with installation not expected to occur 
until 2024 at the earliest, meaning that the 2022 waiver period would 
be useless. The MDOT similarly commented that, to its knowledge, no 
State DOT or associated vendor would be able to benefit from the first 
phase of the waiver as the earliest dates for project awards they 
projected would be in the spring of 2023. East Bay Community Energy 
stated that the short timeframe of the first phase would likely have no 
impact on market acceleration, and Tesla commented that the first phase 
would provide little relief since States have not issued requests for 
proposals regarding EV charger deployment. Other issues raised by 
commenters to justify an extension of the proposed waiver's timeframe 
were the difficulty for EV charger manufacturers and their suppliers to 
understand the waiver; price volatility; the need to alter 
manufacturing processes; potentially increased demand for EV chargers 
from both the public and private sector, which may result in 
potentially increased cost; the additional time it would take to 
conduct safety and reliability testing on the newly domestically 
produced chargers; the necessary delay to ensure that there are 
suitable numbers of replacement parts; potential workforce issues; and 
the lack of a final rule from FHWA on the technical requirements for EV 
chargers under the NEVI Formula Program. Due to many of these factors, 
EVgo stated that the limited number of chargers available and the 
significant expected increase in demand meant that chargers may not be 
available until late 2024 or early 2025.
    In terms of the benefits of extending the proposed waiver's 
timeline, Siemens Corporation (Siemens) commented that a delay would be 
necessary to account for the limited supply of EV chargers that are 
currently available, and that the timeline of any waiver needed to 
consider the time it would take to procure, deliver, and install EV 
chargers in order for that waiver to have a meaningful effect. 
Similarly, General Motors (GM) stated that an extension would provide 
the time necessary to onshore supply chains, ramp up production, and 
conduct necessary testing of new chargers.
    The FHWA Response: In terms of the complete waiver phase of the 
proposed waiver, FHWA does not agree with commenters that it is 
necessary to extend this phase beyond the date set out in the proposed 
waiver; FHWA instead believes that commenters indicated why this phase 
is not in the public interest. Commenters argued that the complete 
waiver phase as proposed, which would have occurred only in calendar 
year 2022, would start and end without a steady supply of EV chargers 
available for procurement. The FHWA disagrees with this assessment. For 
the purpose of this waiver, the question is whether there will be 
enough chargers available to satisfy the demand posed by recipients.
    The purpose of the complete waiver phase in the proposed waiver was 
to provide time for EV charger manufacturers to domestically assemble a 
sufficient supply of chargers for when the first phase-out period 
occurred. Once EV charger manufacturers have

[[Page 10628]]

such a supply available, FHWA believes it appropriate to phase out from 
this waiver's coverage all EV chargers that do not have final assembly 
occur in the United States. The EV charger manufacturers, who FHWA 
believes have the most insight as to when they can domestically 
assemble an EV charger, differed on what date they recommended for the 
final assembly phase to start. ChargePoint, Inc. (ChargePoint), Blink 
Charging, and PowerCharge requested that this phase start in 2024; 
however, others, such as Volta and Wallbox, approved of the proposed 
date of January 1, 2023, for the start of the final assembly phase. 
Based on comments received, FHWA expects recipients to start to procure 
chargers in early 2023. The FHWA expects EV charger manufacturers who 
stated a preference for the final assembly phase to start on January 1, 
2023, to be able to provide the limited number of chargers requested by 
recipients in early 2023. Throughout 2023, as more recipients seek to 
procure EV chargers, FHWA expects this demand to be met by increases in 
the number of domestically assembled chargers produced by EV charger 
manufactures.
    As the proposed first phase-out date of January 1, 2023, has 
already occurred and, as described above, FHWA does not believe it 
necessary to delay this date, FHWA finds that a complete waiver phase 
would not be in the public interest.
    Twenty-five Percent Phase: Other commenters criticized the 25 
percent phase of the proposed waiver as being overly complex and 
burdensome. Several commenters pointed out that this phase would not 
assist in reaching the final 55 percent phase of the waiver. Enel X Way 
USA, LLC (Enel X Way) and Tritium commented that by eliminating the 25 
percent phase, manufacturers would be provided more time to solidify 
the necessary partnerships, suppliers, and supply chain resources to 
ensure that EV chargers are covered by the 55 percent phase.
    The FHWA Response: FHWA agrees that the 25 percent phase is 
unnecessary and would not serve the public interest. The FHWA initially 
proposed this phase to serve as a gradual step between having the 
waiver cover chargers whose final assembly process occurred in the 
United States and phasing out from coverage under this 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, 
leading to the 55 percent phase. The FHWA believed that doing so would 
incentivize manufacturers during the 25 percent phase to make progress 
to reaching the point where they could produce chargers that would be 
covered by the 55 percent phase of the waiver. The FHWA intended that 
manufacturers would shift their processes to account for the 25 percent 
threshold and then shift again to account for the 55 percent threshold. 
Based on the comments received, FHWA no longer believes that 
manufacturers will make the initial shift to produce chargers that 
could be covered by the 25 percent phase. Instead, FHWA believes that 
manufacturers will simply shift their processes to produce EV chargers 
that are covered by the 55 percent phase, rendering the 25 percent 
phase pointless for many of them.
    Further, for those manufactures that do attempt to take advantage 
of the existence of the 25 percent phase by altering their processes to 
produce EV chargers where the cost of components manufactured in the 
United States exceeds 25 percent of the cost of all components, FHWA is 
concerned that doing so may hinder these manufactures from producing EV 
chargers that could be covered by the 55 percent phase, which 
undermines this waiver's goal of incentivizing the production of EV 
chargers assembled and sourced in America. While FHWA wishes to 
incentivize companies to produce EV chargers that are Buy America-
compliant as quickly as they are able to, starting with EV chargers 
that would be covered by the 55 percent phase, FHWA no longer believes 
that the 25 percent phase is a useful means in reaching this goal.
    Start of 55 Percent Phase: With the removal of the complete waiver 
phase and the 25 percent phase, this waiver will start with the final 
assembly phase on its effective date and its first phase-out will occur 
at the start of the 55 percent phase. At this time, EV chargers covered 
by the final assembly phase for which the cost of components 
manufactured in the U.S. does not exceed 55 percent of the cost of all 
components will be removed from this waiver's coverage. Removing the 25 
percent phase, however, necessitates consideration of when to now end 
the final assembly phase and begin the first phase-out period that 
commences the 55 percent phase.
    Commenters gave a wide range of dates for when the 55 percent phase 
should start, from January 1, 2024, to January 1, 2026. Again, FHWA 
finds the dates that EV charger manufactures suggested to be important 
considerations, as they will be the ones domestically sourcing chargers 
for the 55 percent phase. Many EV charger manufacturers, such as 
Tritium, Enel X Way, Siemens, and TeraWatt Infrastructure (TeraWatt), 
did not suggest an alternative to the 55 percent phase while making 
recommendations on other aspects of the proposed waiver, indicating 
tacit approval of FHWA's proposed date of January 1, 2024. Others, such 
as Wallbox, PowerCharge, Volta, and Blink Charging, suggested modifying 
this date to January 1, 2025. SK Signet was among the few commenters 
who argued for a proposed date of January 1, 2026.
    The FHWA Response: Given the range of extension timelines suggested 
by commenters, FHWA believes it is appropriate to extend the date of 
the final assembly phase such that it ends on June 30, 2024. The first 
phase-out period under this final waiver, starting the 55 percent 
phase, where FHWA will remove from the waiver EV chargers for which the 
cost of components manufactured in the U.S. does not exceed 55 percent 
of the cost of all components, will therefore begin on July 1, 2024. 
This date is between the two dates proposed by the majority of EV 
charger manufacturers. Similar to the discussion on the final assembly 
phase, this should not affect manufacturers who recommended a start 
date for the 55 percent phase of January 1, 2024. For those that 
recommended later dates, this may serve to expedite the domestic 
sourcing process so these manufactures can compete with ones that are 
able to domestically source by January 1, 2024. In addition, FHWA notes 
that many manufacturers recommended a date for the start of the 55 
percent phase at the same time as they recommended a new date for the 
start of the 25 percent phase. With the 25 percent phase removed, FHWA 
expects manufactures to be able to modify their processes to produce 
chargers covered by the 55 percent phase faster, as these manufactures 
will not have to perform an additional modification of their processes 
to produce chargers that could be covered by the 25 percent phase. The 
FHWA believes that extending the start of this first phase-out for a 
year properly considers the concerns of many commenters regarding the 
time it takes to domestically source components, without extending the 
waiver for so long that it no longer provides a proper incentive for 
manufactures to comply with the Administration's goals of encouraging 
the domestic manufacturing and assembling of EV chargers. The FHWA 
expects all recipients to procure EV chargers during this phase, with 
many recipients that

[[Page 10629]]

had already procured chargers in previous phases using this phase to 
procure additional chargers using NEVI Formula Program funds from 
additional years.
    The FHWA will also regularly monitor the status of the domestic EV 
charger industry. If the industry is advancing with production of Buy 
America-compliant EV chargers faster than expected, FHWA may 
discontinue this waiver or alter this waiver's timelines accordingly. 
To accomplish this goal, FHWA will conduct biannual RFIs to receive 
information on the status of the EV charger industry during the final 
assembly phase, which may lead FHWA to commencing the first phase-out 
and starting the 55 percent phase earlier than July 1, 2024. If FHWA 
plans to modify this waiver, FHWA will provide adequate notice of its 
intention to do so. As required by section 70914(d) of BIL, 5 years 
from the effective date of this waiver, FHWA will also revisit this 
waiver to determine whether there is still a need to continue it or 
whether the domestic EV charger industry has advanced to a point where 
this waiver can be discontinued.
    Removal of Defined Dates: Some commenters went further than merely 
extending the waiver and suggested that the inclusion of any sort of 
date would be inappropriate and that FHWA should base its waiver off of 
market research or other metrics. The Oklahoma Department of 
Transportation (OKDOT) requested FHWA publish an RFI and conduct 
extensive research on the availability of the materials manufactured in 
the U.S. before phasing out the waiver. The GDOT commented that setting 
the duration of any phase in advance would be arbitrary and that the 
only baseline that should be used is EV charger production data. The 
National Association of Truck Stop Operators (NATSO) and the Society of 
Independent Gasoline Marketers of America (SIGMA) jointly commented 
that FHWA should waive Buy America requirements until it is clear that 
a competitive market of products that meet Buy America requirements are 
available at scale. The City of Dallas stated that any timeframe should 
be delayed until a predefined set of manufacturing and installation 
metrics are achieved. The AGC also agreed with using market research to 
identify manufacturing capacity for the purpose of setting phase out 
dates. The AGC argued that setting specific dates may encourage EV 
charger manufacturers to rush production to produce chargers before 
these dates, causing them to fail to test these chargers for safety and 
reliability. The AGC also commented that setting specific dates for the 
start of phases risk manufacturers failing to produce chargers that can 
be covered under a given phase.
    The FHWA Response: FHWA disagrees with commenters suggesting that 
this waiver should not feature specific dates and believes that 
specific timeframes and phase-out dates are useful in providing 
recipients of FHWA financial assistance certainty as to the 
requirements that will apply at any given time for purchases of EV 
chargers. Waiver periods that are tied only to the results of 
contemporary market research may change suddenly, disrupting planning 
made by recipients, their contractors, and subcontractors. In addition, 
specific dates provide industry vendors with a clear timetable to 
encourage them to shift to manufacturing and assembling EV chargers 
domestically as quickly as possible. Again, FHWA is issuing this waiver 
both after considering the current and projected state of the market 
and to encourage an increase in domestic content within the market over 
time. While FHWA acknowledges that some EV charger manufacturers may 
not be able to produce compliant chargers within the timeframe set out 
in this waiver, FHWA believes that delaying the phases of this waiver 
to account for such manufacturers goes against the purpose of Buy 
America requirements and the Administration's goals of realizing 
American production of EV chargers. In addition, FHWA intends to 
collect new information as it becomes available via biannual RFIs and, 
as detailed above, may enter into the 55 percent phase before the 
scheduled July 1, 2024, date depending on the information received.
    Bifurcating Timeframes for ACL2 and DCFC Chargers: Several 
commenters brought up the differences between ACL1 and ACL2 chargers 
and DCFC chargers and argued that these differences justified different 
waiver timeframes for the two kinds of chargers. EVgo commented that 
ACL2 chargers contain fewer components and cost dramatically less than 
DCFC chargers. EVgo further commented that it expected the domestic 
DCFC charger market to take longer to develop to a point where those 
chargers could be produced domestically at scale than they expected for 
the domestic ACL2 charger market. EVgo claimed that DCFCs require more 
highly specialized manufacturing processes, that the ACL2 charger 
market is more robust currently than the DCFC charger market, and that 
the company expected demand to be lower for ACL2 chargers in the NEVI 
Formula Program. Electrify America commented that because ACL2 chargers 
have become relatively commoditized, unlike DCFC chargers which are a 
relatively new technology, there should be different phase-out 
schedules for the two kinds of chargers. Electrify America suggested 
that ACL2 chargers follow the proposed waiver phase-out schedule 
whereas DCFC chargers be permitted an extended schedule. ChargePoint, 
on the other hand, stated that supply chains were less advanced for 
ACL2 chargers than DCFC chargers due to a lack of prior demand for Buy 
America-compliant ACL2 chargers and recommended extending the waiver 
for ACL2 chargers until January 1, 2024, to account for that.
    The FHWA Response: FHWA does not believe that there is a need to 
bifurcate this waiver's phase-out schedule for ACL2 chargers and DCFC 
chargers. To start with, the comments received on this issue differed 
in the basic notion of whether bifurcation was necessary to account for 
delays in the ACL2 charger market or delays in the DCFC charger market. 
Further, FHWA does not intend this waiver to be overly burdensome on 
recipients and believes that bifurcating phase-out periods would 
unnecessarily confuse recipients as to which waiver period a given 
charger may fall into, without providing any clear benefit.

E. 350 kW DCFC Chargers

    Some commenters raised special concerns over 350kW DCFC chargers. 
These comments generally proceeded along the same path. First, these 
commenters stated that DCFC chargers are the best chargers to be 
purchased using NEVI Formula Program funds. Pilot Travel Centers LLC 
(Pilot), for instance, commented that Congress, FHWA, and States EV 
Deployment Plans clearly favored deployment of 350 kW DCFC chargers. In 
a joint comment, Pilot, GM, and EVgo further stated that recent 
investments in EV charging infrastructure illustrate a clear preference 
for 350 kW DCFC chargers and that this also matches a growing trend in 
the automotive industry. Commenters stated that if 350 kW DCFC chargers 
were not available at scale, States would instead purchase lower power 
chargers, such as 150 kW DCFC chargers that meet the proposed standards 
promulgated by FHWA for the NEVI Formula Program.\17\ These

[[Page 10630]]

commenters believed that using 150 kW DCFC chargers instead of 350 kW 
DCFC chargers would result in an EV charging network inadequately 
prepared for the next generation of EVs.
---------------------------------------------------------------------------

    \17\ The FHWA proposed regulations setting minimum standards and 
requirements for projects funded under the NEVI Formula Program on 
June 22, 2022. See 87 FR 37262. The FHWA proposed that the maximum 
power per DCFC charging port be at or above 150 kW, with each 
charging station capable of providing at least 150 kW per charging 
point.
---------------------------------------------------------------------------

    Next, commenters stated that it was not possible for 350 kW DCFC 
chargers to comply with the proposed waiver's timeframe. The Alliance 
for Automotive Innovation mentioned that the proposed waiver did not 
give specific attention to 350 kW DCFC chargers, and the commenter 
believed that the same issues facing all EV chargers were especially 
pronounced for 350 kW DCFC chargers. A joint comment from NATSO and 
SIGMA mentioned that they were unaware of any data suggesting that Buy 
America-compliant 350 kW DCFC chargers were available at scale or will 
be available in time to meet the timelines in the proposed waiver and 
that FHWA should waive Buy America requirements for these chargers 
until it is clear that a competitive market of compliant products is 
available at scale.
    To deal with this perceived concern, some commenters requested FHWA 
additionally extend its waiver schedule specifically for 350 kW DCFC 
chargers. The joint comment from the Pilot, GM, and EVgo requested a 
focused 1-year delay solely for 350 kW DCFC chargers given what they 
claimed were additional complexities and supply chain challenges facing 
these chargers.
    The FHWA Response: FHWA does not agree that it is necessary to give 
special accommodations for 350 kW DCFC chargers in this waiver. The 
FHWA finds that the argument pushed by commentators in favor of such 
preference is flawed at its first premise. The FHWA proposed allowing 
150 kW DCFC chargers to be used on NEVI Formula Program funded 
projects. Commenters in favor of special treatment for 350 kW DCFCs do 
so under the idea that these chargers should be purchased using NEVI 
Formula Program funds and that this waiver should encourage that. The 
FHWA believes that the rulemaking for the NEVI Formula Program, not 
this waiver, is the appropriate place to make that argument. This 
waiver is to encourage the domestic production of chargers that can be 
used on FHWA assisted projects and delaying this waiver's timeframe for 
350 kW DCFC chargers does not comport with this goal.

F. Definition of ``EV Charger''

    Coverage of Waiver: In the proposed waiver, FHWA defined an ``EV 
charger'' as ``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.'' The FHWA also stated that the term would not include 
parking areas adjacent to the EV chargers and lanes for vehicle ingress 
and egress.
    Many commenters expressed concern over this proposed definition, 
with some suggesting that it be expanded while others stating that it 
was overly broad. In the former group, Ford asked for FHWA to consider 
including EV charging posts and cable management systems as part of the 
definition of ``EV charger.'' The KDOT suggested that the waiver also 
apply to other manufactured products that are external to the EV 
charger but in its immediate vicinity, as well as switchboards, 
switchgears, and panelboards. The MDOT recommended that manufactured 
components for battery storage and other alternative power sources, 
such as solar panels, be included in the definition of ``EV charger,'' 
although MDOT admitted doing so may cause confusion. ElectricFish 
similarly requested that the definition apply to battery storage 
systems.
    In the opposite group, many commenters complained that the broad 
definition in the proposed waiver for ``EV chargers'' could cause 
confusion and delay. The AASHTO stated that this definition would muddy 
the parameters surrounding the waiver and complicate the determination 
of compliance when determining the cost of components for the 55 
percent phase. General Motors stated that the broad proposed definition 
may cause project delays since equipment outside of the actual EV 
charger might have its own supply chain considerations, particular with 
respect to utility-related equipment. Volta similarly commented that 
systems and technologies not core to the EV charger itself, such as 
wireless and telecommunications systems, are frequently not 
manufactured in the United States and that moving supply chains to the 
United States for these components would be extremely difficult and 
costly. Revel agreed, stating that the proposed definition could 
increase noncompliance with Buy America requirements because many of 
these systems and technologies are not produced domestically. In 
addition, TeraWatt noted that the EV charging market is not large 
enough to dictate a domestic shift to the telecommunications supply 
chain, potentially resulting in no Buy America-compliant 
telecommunications systems being available and, if the proposed 
definition is used, fewer Buy America-compliant EV chargers. The Zero 
Emission Transportation Association (ZETA) and Shell both noted that 
additional equipment encompassed by FHWA's proposed definition may 
implicate other domestic content procurement preferences, resulting in 
confusion by recipients, their contractors, and subcontractors and 
potential delays. BTC Power commented that including equipment beyond 
the EV charger would make it difficult for EV charger manufacturers to 
certify Buy America compliance, given that they might not necessarily 
have insight into the domestic content of pieces they don't manufacture 
themselves.
    Finally, multiple commenters stated that the proposed definition of 
``EV charger'' would disincentivize the integration of helpful features 
such as on-site renewable energy generation and energy storage systems 
in EV charging stations, since inclusion of such features would require 
them to be Buy America-compliant. Commenters presented concerns that 
such domestically produced technologies were not available and 
therefore may not be included in charging stations featuring EV 
chargers purchased with FHWA financial assistance. The ZETA noted that 
FHWA should encourage including on-site renewable energy generation in 
charging stations, which would be hindered if those technologies were 
required to be Buy America-compliant given that manufacturers were 
unlikely to change their processes to domestically manufacture those 
technologies to support the minimal quantity involved in EV charging 
stations.
    Commenters who suggested a narrower definition that FHWA originally 
proposed presented numerous options. The AASHTO recommended the 
definition only include the self-contained EV charging unit itself. 
Autel Energy (Autel) suggested that the definition should only apply to 
those components that are under the direct control of the EV charger 
manufacturer. Proterra recommended that FHWA limit Buy America 
requirements to items that are directly related to electric vehicle 
supply equipment. Revel suggested that the definition apply only to 
technologies or systems permanently

[[Page 10631]]

affixed to the charger that are essential to the charger's function and 
operation. Finally, Shell commented that Buy America requirements 
should only apply to the portion of the project which the recipient 
deems eligible for EV infrastructure-related Federal-aid funding.
    The FHWA Response: FHWA agrees with the number of commenters 
suggesting that the definition of ``EV charger'' should be narrower 
than what was presented in the proposed waiver. After reviewing the 
comments received, FHWA does not believe it is necessary to include the 
associated equipment specified in the proposed waiver as part of this 
final waiver. Such equipment will fall under FHWA's current Buy America 
requirements, which may include coverage under the existing 
Manufactured Products General Waiver. In this final waiver, FHWA will 
consider an ``EV charger'' as only the EV charger unit itself and the 
equipment contained inside it. As there are various configurations 
possible for EV chargers, FHWA is reliant on manufacturers to determine 
which components are within the EV charger and will therefore be 
covered by this waiver.
    The FHWA believes that it is important to accelerate the domestic 
EV charger manufacturing industry and that it is feasible for 
manufacturers to onshore production in the near future to take 
advantage of the increased funding for EV infrastructure projects. This 
waiver serves to incentivize that process. The FHWA does not believe, 
however, that such incentives exist for equipment associated with the 
EV charger that may have uses beyond EV charging infrastructure 
projects, such as telecommunications equipment; for these pieces of 
equipment, FHWA does not think that the same incentive exists to 
encourage their domestic production. Including them under the 
definition of ``EV charger'' would mean that final assembly of these 
pieces of equipment would need to occur domestically and many of them 
would need to be sourced domestically in order to be covered by this 
waiver, and FHWA does not believe the EV charger market is large enough 
to incentivize manufacturers of these additional pieces of equipment to 
domestically produce those pieces of equipment. Under the proposed 
definition of ``EV charger,'' this would mean that certain pieces of 
equipment associated with an EV charger could not be covered by this 
waiver, potentially leaving many EV charger stations noncompliant with 
Buy America requirements and hindering efforts to complete EV 
infrastructure projects. The FHWA believes that this possibility 
justifies narrowing the definition of ``EV charger'' than what was 
previously proposed.
    In summary, FHWA is choosing to limit this waiver to the EV charger 
itself. The FHWA believes doing so keeps the waiver as simple as 
possible, compared to other suggested definitions. By limiting the 
definition to the EV charger itself, EV charger manufacturers will be 
able to determine if a charger is covered by this waiver, while also 
providing clarity to recipients, their contractors, and subcontractors 
when procuring chargers regarding how this waiver will cover those 
chargers. The FHWA also notes that much equipment associated with EV 
chargers is covered by FHWA's Manufactured Products General Waiver and, 
for this reason, defining ``EV charger'' more narrowly should not 
prevent projects from being delivered on time.
    Utility Equipment: Several commenters sought clarity on how this 
waiver would affect equipment used in utility relocations and upgrades. 
Autel questioned whether products used in utility upgrades would be 
covered by this waiver. The OKDOT commented that the proposed waiver 
did not address whether Buy America requirements extend to utility 
relocations and requested that utilities be excluded from Buy America 
requirements.
    The FHWA Response: Based on the definition used for ``EV charger'' 
in this final waiver, equipment used in utility relocations and 
upgrades would generally not be covered by this waiver; instead, FHWA's 
Buy America requirements would apply to such work. Further, FHWA does 
not believe it is necessary to treat utility-related work for EV 
charger infrastructure projects differently from utility-related work 
for other Federal-aid highway projects.

G. Treatment of Components

    Defining Components of EV Chargers: Multiple commenters requested 
that FHWA clearly delineate what components are covered by this waiver. 
Siemens recommended that FHWA further define items that FHWA considers 
to be components of EV chargers for the purpose of computing the 
domestic content of those components. Tesla and the North Central Texas 
Council of Governments (NCTCOG) commented that FHWA should release a 
list of all components the proposed waiver would apply to. ABB E-
Mobility, on the other hand, argued that FHWA should not create a list 
of what it considers to be a component of an EV charger because EV 
charger technology is developing rapidly, and components vary by 
manufacturer.
    The FHWA Response: In general, any article, material, or supply 
that is directly incorporated into the end product (i.e., EV charger) 
is a component. Given the various ways that EV chargers are structured, 
and may be structured in the future, FHWA agrees with ABB E-Mobility 
that it is not useful to define with particularity every component used 
in an EV charger.
    Determining Cost of Components: Multiple commenters sought 
clarification regarding how to determine the cost of components to 
determine whether an EV charger is covered by the waiver. Enel X Way 
USA and Tritium recommended that the subassembly of foreign parts into 
components qualify as part of the manufacturing process which should be 
treated as part of the cost of a component. Tritium also suggested that 
manufactures should be able to determine the cost of the component 
using their manufacturing costs. The NCTCOG asked whether the exclusion 
of labor costs associated with the manufacture of the end product also 
prohibited inclusion of labor costs associated with manufacture of 
components. Wallbox recommended adding the cost of labor towards final 
assembly as a cost of the component, and Tesla encouraged FHWA to 
include labor costs for components that are manufactured domestically 
and included in the final EV charger. Wallbox also recommended that 
FHWA clarify that all components used in final assembly, including 
components purchased by the manufacturer from upstream suppliers, count 
for domestic content calculations in the 55 percent phase. The National 
Electrical Manufacturers Association questioned whether Manufacturer 
Value Add or Substantial Transformation is part of the cost of a 
component.
    The FHWA Response: FHWA does not believe that changes need to be 
made to how the cost of components are calculated from how was 
described in the proposed waiver. The FHWA proposed to determine the 
cost of components for this waiver using the same methodology used to 
calculate the cost of components for the Buy American statute under 
chapter 83 of title 41, U.S.C., which generally applies to supplies, 
construction, and services acquired for public use. The FHWA believes 
that utilizing existing definitions rather than creating new ones for 
this waiver provides more consistency across Federal agencies and more 
certainty to recipients, their contractors, subcontractors, and EV 
charger manufacturers. Per the

[[Page 10632]]

regulations implementing the Buy American statute, the Federal 
Acquisition Regulations (FAR), ``cost of component'' is defined in FAR 
25.003 as: ``(1) For components purchased by the contractor, the 
acquisition cost, including transportation costs to the place of 
incorporation into the end product or construction material (whether or 
not such costs are paid to a domestic firm), and any applicable duty 
(whether or not a duty-free entry certificate is issued); or (2) for 
components manufactured by the contractor, all costs associated with 
the manufacture of the component, including transportation costs as 
described in paragraph (1) . . . plus allocable overhead costs, but 
excluding profit. Cost of components does not include any costs 
associated with the manufacture of the end product.'' \18\ As the Buy 
American statute is similar in its goals to Buy America, FHWA believes 
that relying on the definition for ``cost of components'' in FAR 25.003 
is preferrable to other methods, such as considering whether 
substantial transformation has occurred. For components purchased and 
then incorporated into an EV charger, the cost of that component would 
be the acquisition cost, including transportation costs to the place of 
incorporation (whether or not such costs are paid to a domestic firm) 
and any applicable duty (whether or not a duty-free entry certificate 
is issued). For components manufactured and then incorporated into an 
EV charger, the cost of that component would be all costs associated 
with the manufacture of the component, including transportation costs 
to the place of incorporation, plus allocable overhead costs, but 
excluding profit. To the extent that costs do not fit into this 
definition, FHWA will not consider them in determining whether an EV 
charger is covered by this waiver's 55 percent phase. For instance, 
this would not cover Manufacturer Value Add as that is not a cost 
associated with the manufacture of the component.
---------------------------------------------------------------------------

    \18\ See 48 CFR 25.003.
---------------------------------------------------------------------------

    This definition would include the cost of subassembly of foreign 
parts into the component for components manufactured by the EV charger 
manufacturer as it is a cost associated with the manufacture of the 
component. For components purchased by the EV charger manufacturer, the 
cost of subassembly of foreign parts would be reflected in the 
acquisition cost of that component. Based on this definition, the cost 
of all components used in final assembly, whether manufactured or 
purchased by the EV charger manufacturer, will be considered when 
determining whether a charger is covered during the 55 percent phase of 
this waiver.
    In terms of labor costs, for purchased components, FHWA expects the 
labor cost to be built into the acquisition cost of the component and 
it should not be accounted for separately. For manufactured components, 
labor costs associated with the manufacture of the end product will not 
be considered to be the cost of a component; however, the labor costs 
associated with the manufacture of the component itself will be. Such 
costs are costs associated with the manufacture of the component.
    Applicability of Buy America Iron and Steel Requirements to 
Predominantly Iron and Steel Components of EV Chargers: Commenters 
disagreed over whether FHWA should apply existing Buy America 
requirements regarding iron and steel to primarily steel and iron 
components of EV chargers. On one side, commenters argued that FHWA 
should not apply such requirements to any specific predominantly iron 
or steel EV charger component. These commenters argued that doing so 
would complicate compliance and pose an undue burden on EV charger 
manufacturers in terms of time and cost. TeraWatt also noted that 
because EV chargers need to have their final assembly occur in the 
United States and meet the cost of component threshold set out in this 
waiver to be covered by it, there was no need to turn to FHWA's 
existing iron and steel requirements to ensure the expansion of 
domestic manufacturing capacity. The ZETA, Enel X Way, and NCTCOG 
argued that imposing FHWA's existing iron and steel requirements under 
Buy America would create additional roadblocks to the completion of EV 
charging infrastructure projects. ABB E-Mobility argued that the 
domestic availability of steel for which all manufacturing processes 
occurs in the United States is limited and could be cost prohibitive 
when integrated into EV chargers and recommended FHWA not require that 
predominantly steel components use steel for which the entire 
manufacturing process occurs in the United States. The AGC further 
argued that singling out any specific component to be excluded from the 
waiver would provide unnecessary complications and potentially cause 
delays. Several commenters added that FHWA's current steel and iron 
requirements under 23 U.S.C. 313 should not apply to EV chargers at any 
point, claiming that while EV chargers may contain iron and steel 
components, they are not predominantly steel and iron. ChargePoint went 
further, recommending that FHWA exclude any steel and iron requirements 
indefinitely.
    Other commenters disagreed and stated that FHWA's existing 
requirements for iron and steel under Buy America should apply to at 
least some EV charger components. Nucor and AISI, two opponents of the 
proposed waiver, agreed that the waiver should not apply to all 
components of an EV charger. These two commenters stated that the 
domestic steel industry has the capacity to supply steel for use in EV 
chargers and that products used in EV chargers, such as the EV 
charger's housing, are readily available from domestic steel producers. 
Tritium also stated that it was comfortable with excluding 
predominantly iron and steel components from coverage under this waiver 
if manufacturers were able to count these excluded components to meet 
the cost of component thresholds.
    The FHWA Response: FHWA agrees with certain commenters that it is 
in the public interest to apply this waiver to all components of an EV 
charger. In general, except with respect to the housing of an EV 
charger, commenters to the proposed waiver did not provide sufficient 
information as to which components were predominantly iron or steel. 
Without readily available information on which components are more 
often than not predominantly iron or steel to apply a categorical rule, 
FHWA does not find it appropriate to place the onus on manufacturers 
and recipients to sift through components one by one to determine which 
are predominantly iron or steel. By specifying which predominantly 
steel and iron components of an EV charger are expected to comply with 
current FHWA Buy America requirements, manufacturers and recipients 
will have certainty over which components are covered, which will allow 
for projects involving those chargers to be completed more 
expeditiously.
    The FHWA believes, however, that it is practical to apply FHWA's 
existing Buy America requirements for predominantly iron or steel 
components to specifically identified components of an EV charger that 
are predominantly iron or steel. Based on comments received, the only 
component identified as potentially being predominantly iron or steel 
is an EV charger's housing. As indicated in the responses to the 2021 
RFI, the housing may comprise over 50 percent of the costs of the 
charger. While other components may contain some amounts of iron and 
steel, the housing was the only component mentioned by commenters to 
the 2021

[[Page 10633]]

RFI as being predominantly iron and steel. In addition, ABB E-Mobility 
commented on the proposed waiver of the significant amounts of steel 
included in the housing.
    After reviewing the comments received, FHWA believes that housing 
predominantly made of iron or steel should not be covered by this 
waiver and therefore must comply with existing FHWA Buy America 
requirements. The purpose of FHWA's Buy America requirements is to 
ensure that, where possible, iron and steel products are produced in 
the United States. The FHWA believes that waivers should be used 
sparingly; if a product would otherwise be covered by FHWA's iron and 
steel Buy America requirements, FHWA believes those requirements should 
apply to that product absent sufficient justification to the contrary. 
An EV charger's housing has been repeatedly described to FHWA as being 
the single component with a significant percentage of its costs being 
comprised of the cost of its steel and iron. This also aligns with 
FHWA's existing treatment of predominantly iron and steel components of 
manufactured products. Current FHWA policy does not distinguish between 
predominantly iron and steel components of any manufactured product and 
predominantly iron and steel components of predominantly iron and steel 
manufactured products, and FHWA does not find it necessary to create 
such a distinction here. The FHWA agrees with Tritium, however, that if 
an EV charger does feature a housing that is predominantly iron or 
steel, FHWA will consider the cost of that cabinet when calculating the 
cost of components to determine whether the EV charger falls under this 
waiver during the 55 percent phase.
    The FHWA does not believe that removing housings that are 
predominantly iron or steel from this waiver's coverage will cause an 
undue burden on EV charger manufacturers, contrary to what was argued 
by some commenters. Based on comments from the steel industry, there is 
an adequate amount of domestic steel available, and commenters did not 
present arguments that there was anything unique about an EV charger's 
housing that would prevent it from being sourced and assembled 
domestically, consistent with how other predominantly steel and iron 
components of manufactured products are treated regularly in Federal-
aid highway projects.

H. Coverage of Subcomponents

    Application of Waiver to Subcomponents: Commenters suggested that 
the domestic content provisions of this waiver should only apply at the 
component level, not at the subcomponent level. In essence, these 
commenters requested that when determining if EV chargers were covered 
by the 55 percent phase, FHWA should determine the cost of components 
manufactured in the United States without including the cost of 
subcomponents. According to these commenters, FHWA should allow for the 
sourcing of subcomponents from international sources throughout the 
lifetime of this waiver due to the delay it would take manufacturers to 
either locate and substitute domestically sourced subcomponents or 
alter the designs of their chargers, the costs of doing so, the 
challenge to track and certify subcomponents, and their opinion that 
applying this waiver at the subcomponent level would not meaningfully 
further FHWA's domestic manufacturing goals. The ZETA added that they 
believe the standard of the 55 percent phase, where the waiver would 
cover EV chargers only if the cost of components manufactured in the 
United States exceeds 55 percent of the cost of all components, could 
only be achievable if subcomponents could be sourced internationally. 
ABB E-Mobility urged FHWA to state that subcomponents could be used 
without regard to their country of origin, arguing that there is a need 
to be able to source subcomponents internationally and that EV charging 
demand is unlikely to shift production of these subcomponents to the 
United States, considering the size of the EV charger industry. BTC 
Power recommended that FHWA should copy the regulatory definition the 
Federal Transit Administration uses for determining whether a 
manufactured product is considered produced in the United States, with 
49 CFR 661.5(d)(2) stating that ``[a] component is considered of U.S. 
origin if it is manufactured in the United States, regardless of the 
origin of its subcomponents.''
    The FHWA Response: To be covered by the initial phase of this 
waiver, the final assembly process of EV chargers must occur in the 
United States; this includes the incorporation of subcomponents into 
the final EV charger. It does not include the assembly of the 
subcomponent itself or the assembly of subcomponents into components. 
To be covered by the 55 percent phase, the cost of components 
manufactured in the United States must exceed 55 percent of the cost of 
all components. In alignment with the definition of ``cost of 
components'' in FAR 25.003, FHWA did not and does not intend for 
subcomponents to be considered when calculating the cost of components 
to determine coverage under the 55 percent phase. While the cost of 
subcomponents may factor into the cost of components, the cost of 
subcomponents should not be separately calculated and used to determine 
whether a charger is covered by this waiver.
    Exclusion of ``Non-Substantial'' Components: PowerCharge requested 
that non-substantial components of EV chargers, such as screws and 
clips, be exempt from the calculation of an EV charger's steel and iron 
content.
    The FHWA Response: FHWA does not believe this change is necessary. 
At all times that this waiver is active, it will cover EV chargers 
where final assembly occurs in the U.S. and, after the first phase-out 
period, where the cost of components manufactured in the U.S. exceeds 
55 percent of the cost of all components. Screws and clips, which 
PowerCharge mentioned as ``non-substantial components,'' will many 
times be considered subcomponents, which, as mentioned above, are not 
included in calculations for the purpose of determining coverage under 
the 55 percent phase. Further, to the extent that a non-substantial 
component exists, is not manufactured domestically, and is included in 
an EV charger, that charger may still be covered under this waiver. 
Such components are likely to cost a de minimis amount, and, even at 
the 55 percent phase, this waiver still covers EV chargers for which 
the cost of components exceeds 55 percent of the cost of all 
components. The FHWA does not believe that including the costs of such 
components in calculating the costs of all components for the purpose 
of the 55 percent phase presents a significant burden to manufacturers 
and does not find it necessary to explicitly exclude minor components.

I. Buy America Processes

    Standardized Certification Process: Commenters routinely requested 
that there be a standardized process to demonstrate compliance with Buy 
America requirements, with most of them suggesting that FHWA develop 
such a process. The AASHTO recommended developing a process for vendors 
to provide information about the percentage of materials that are 
sourced domestically, as well as a consistent method for State DOTs to 
confirm the accuracy of such information. Blink Charging suggested FHWA 
establish a compliance and certification process specifically focused 
on EV chargers. The EVCA expressed

[[Page 10634]]

concern about the potential lack of consistency if certification is not 
standardized at the Federal level. Wallbox suggested that a public or 
third-party entity be responsible for Buy America certification.
    The FHWA Response: To the extent that many commenters suggested a 
Buy America certification process that extended beyond EV chargers, 
that falls outside the scope of this waiver. In terms of designing a 
certification process for EV chargers covered by this waiver, FHWA does 
not believe it necessary to alter its existing certification processes 
specifically for EV chargers. Doing so would create a separate 
certification process for EV chargers, which would cause unnecessary 
confusion and delay as recipients who are accustomed to FHWA's current 
certification process learn how this new process would work.
    List of Buy America-Certified Products: Other commenters suggested 
that FHWA should maintain a list of Buy America compliant products, 
including Buy America compliant EV chargers.
    The FHWA Response: Similarly, to the extent that these commenters 
suggested that FHWA maintain a list of Buy America-compliant products 
outside of EV chargers, that falls outside the scope of this waiver. In 
terms of compiling a list of which EV chargers are covered by this 
waiver, this waiver is not the appropriate place to require that EV 
charger manufactures provide information to the Agency, nor, as 
mentioned above, does FHWA believe it should undertake its own 
certification process for EV chargers.

IV. Final Public Interest Waiver

    Based on all the information available to FHWA, FHWA concludes that 
applying the Buy America requirements of 23 U.S.C. 313 for steel, iron, 
and manufactured products and section 70914 of BABA for construction 
materials to EV chargers on FHWA-assisted infrastructure projects would 
be inconsistent with the public interest. A waiver of these 
requirements under 23 U.S.C. 313(b)(1), 23 CFR 635.410(c), and section 
70914(b) of BABA, structured to phase out over time, is thus 
appropriate. In addition, FHWA is removing EV chargers from being 
covered by the existing Manufactured Products General Waiver, starting 
on the date of this notice. In consideration of the foregoing, FHWA is 
issuing this waiver as stated below:
    The FHWA will apply a waiver of Buy America requirements under 23 
U.S.C. 313 and section 70914 of BABA to EV chargers and all components 
of EV chargers if final assembly occurs in the United States for all 
chargers that are manufactured from the effective date of this waiver 
until June 30, 2024. This phase applies only to EV chargers that are 
manufactured during this period and for which recipients begin 
installation by October 1, 2024. In addition, all predominantly steel 
and iron housing components are excluded from the waiver and must meet 
FHWA's Buy America requirements for steel and iron.
    Starting on July 1, 2024, this waiver will not apply to EV chargers 
for which the cost of components manufactured in the United States does 
not exceed 55 percent of the cost of all components. This means that 
any EV chargers which are manufactured on and after July 1, 2024, would 
be covered by this waiver only if: (i) final assembly occurs in the 
United States; and (ii) the cost of components manufactured in the 
United States exceeds 55 percent of the cost of all components. All 
predominantly steel and iron housing components continue to be excluded 
from the waiver and must meet FHWA's Buy America requirements for steel 
and iron. The cost of any such housing shall be included as a cost of 
an EV charger's components when calculating whether the cost of 
components manufactured in the United States exceed 55 percent of the 
cost of all components. The FHWA considers the ``date of manufacture'' 
to be the date on which the EV charger, as defined further below, has 
its final assembly occur and is in an operational state.
    This waiver will remain in place until terminated by FHWA. In 
accordance with section 70914(d)(1) of BABA, FHWA will commence a 
review of this waiver no later than 5 years from the effective date of 
this waiver, at which time FHWA may discontinue this waiver if it is 
found to no longer be in the public interest. The FHWA, however, 
reserves the right to modify or shorten the duration of this waiver or 
any of its phases if it obtains information indicating that this waiver 
or any or its phases are no longer in the public interest. The FHWA 
will conduct RFIs every 6 months from this waiver's effective date to 
July 1, 2024, to receive information on the state of the EV charger 
industry. This information may lead FHWA to amend this waiver to, for 
example, state that EV chargers are covered by this waiver only if 
final assembly occurs in the United States and the cost of components 
manufactured in the United States exceeds 55 percent of the cost of all 
components for waivers that are manufactured before July 1, 2024, with 
the results of the RFIs determining what this new date will be.
    For the purpose of this waiver, FHWA considers the cost of a 
component to be based on whether it is purchased or manufactured when 
it is incorporated into the EV charger. The FHWA will use the standards 
in FAR 25.003 to determine the allowable costs included in purchased or 
manufactured components and will use the standards in FAR 31.201-4 to 
determine overhead costs that are generally allocable. In other words, 
FHWA will include 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) 
for purchased components. For manufactured components, FHWA will 
include all costs associated with the manufacture of the component 
(including transportation costs and quality testing) and allocable 
overhead costs; FHWA will not include profits and any labor costs 
associated with the manufacture of the end product. The FHWA will 
consider allocable overhead costs to be (a) 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.
    For purpose of this waiver, FHWA defines ``EV charger'' to mean the 
EV charger unit itself and the equipment contained inside it. This 
definition does not include associated equipment external to the EV 
charger, parking areas adjacent to the EV charger, and lanes for 
vehicle ingress and egress. In addition, this waiver does not cover an 
EV charger's housing (also known as its cabinet or enclosure) if it is 
comprised predominantly of steel or iron; however, the cost of housing 
comprised predominantly of steel and iron must be used in the cost of 
components calculation. For the purposes of this waiver, an EV 
charger's housing is defined as the component of the EV charger that 
contains the electronics that convert electricity to direct current.
    For any areas, products, or materials excluded from this waiver, 
FHWA's existing Buy America requirements and policies will continue to 
apply, including the new requirement applicable to construction 
materials established under BABA. This means, for example, that the 
requirements of 23 U.S.C. 313 and section 70914 of BABA will apply to 
the housing of an EV charger if it is predominantly steel or iron. The 
FHWA will consider the cost of an EV charger's housing when

[[Page 10635]]

considering whether the cost of components manufactured in the United 
States exceeds 55 percent of the cost of all components in the EV 
charger, even if that housing is predominantly steel or iron and is not 
covered by this waiver. In other words, starting on July 1, 2024, the 
waiver will apply only to EV chargers for which the cost of all 
components, including the cost of the housing if it is predominantly 
steel or iron, manufactured in the United States exceeds 55 percent of 
the cost of all components, including a housing that is predominantly 
steel or iron.
    For purpose of this waiver, FHWA considers an EV charger to fall 
under the phase of the waiver that exists on the date when that EV 
charger was manufactured.
    The OMB Implementation Guidance 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 finalizing 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.
    In accordance with the provisions of Section 117 of the SAFETEA-LU 
Technical Corrections Act of 2008 (Pub. L. 110-244), FHWA is providing 
this notice as its finding that a waiver of Buy America requirements is 
appropriate. FHWA invites public comment on this finding for an 
additional 5 days following the date of publication of this notice. 
Comments may be submitted to FHWA's website via the link provided to 
the waiver page noted above by February 27, 2023. 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.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
[FR Doc. 2023-03498 Filed 2-17-23; 8:45 am]
BILLING CODE 4910-22-P