Buy America - Construction Program Guide - Contract Administration - Construction

Notice of Buy America Waiver Request

Action: Notice, request for comments.

Web posting date: 02/15/2023

Federal Register Notice of Finding Publication Date: To be determined.

Effective Date of Federal Register: 03/23/23

Close of public comment period : 03/22/23

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. The temporary waiver is effective starting on March 23, 2023.

FHWA Contacts: For questions about the notice, Brian Hogge, FHWA Office of Infrastructure, 202-366-1562, or via email at Brian.Hogge@dot.gov; for legal questions, David Serody, FHWA Office of Chief Counsel, 202-366-4241, or via email at David.Serody@dot.gov.

FHWA will only consider a Buy America waiver when the conditions of 23 CFR 635.410( c) have been met: (1) when the application of the provision would be inconsistent with the public interest; or (2) when steel and iron products are not produced in the United States in sufficient and reasonably available quantities, which are of a satisfactory quality.

The FHWA will consider all comments received in the initial 15-day comment period during our evaluation of the waiver request. Comments received after this period, but before notice of our finding is published in the Federal Register, will be considered to the extent practical. Follow-up coordination on the comments received may result in a delay in the publication of our waiver finding in the Federal Register. Comments received during the 15-day comment period after notice of our finding is published in the Federal Register will be reviewed, but the finding will continue to remain valid. Comments received during the comment period after the effective date of the finding will be reviewed, and may influence the FHWA's decision to terminate or modify a finding.

Comments

Information Technology Industry Council (ITI) 02/27/2023
ITI Comments in Support of Temporary Public Interest Waiver of Build America, Buy America Preference February 27, 2023 Federal Highway Administration (FHWA) U.S. Department of Transportation (DoT) Re: Docket: FHWA-2022-0023, Temporary Public Interest Waiver of Build America, Buy America Domestic Content Procurement Preference as Applied to Steel, Iron, Manufactured Products, and Construction Materials in Electric Vehicle Chargers Dear FHWA: Thank you for the opportunity to provide comments on FHWA’s proposed temporary public interest waiver of the Build America, Buy America (BABA) domestic content procurement preference as applied to iron, steel, manufactured products, and construction materials in electric vehicle (EV) chargers, as well as FHWA’s removal of EV chargers from the Manufactured Products General Waiver (48 FR 53099). The Information Technology Industry Council (ITI) is the premier global advocate for technology, representing the world’s most innovative companies. Founded in 1916, ITI is an international trade association with a team of professionals on four continents. We promote public policies and industry standards that advance competition and innovation worldwide. Our diverse membership and expert staff provide policymakers the broadest perspective and thought leadership from technology, hardware, software, services, and related industries. ITI supports FHWA’s temporary public interest waiver for iron, steel, manufactured products, and construction materials in EV chargers, as failing to waive domestic sourcing requirements for these technologies will have significant negative impacts in terms of implementation delays and increased costs. We appreciate FHWA’s thoughtful approach to drafting the waiver based on its significant engagement with industry, and urge the U.S. Government as a whole to consider waiving the application of BABA procurement preferences for IT procured as part of infrastructure projects. We believe this reflects a reasonable approach to enabling the implementation of Buy America requirements and the administration’s objectives while avoiding negative outcomes. Thank you for providing an opportunity for ITI and our member companies to contribute input to the FHWA’s public interest temporary waiver. Sincerely, Megan Petersen Vice President, Public Sector Policy and Counsel Information Technology Industry Council (ITI)
Christopher B. Weld 02/27/2023
Note that the following comments have been submitted via regulations.gov On behalf of Nucor Corporation (“Nucor”), we hereby submit the following comments in response to the Federal Highway Administration’s Notice of Waiver of Buy America Requirements for Electric Vehicle Chargers. Specifically, the Federal Highway Administration (“FHWA”) intends to waive certain Buy America requirements in its regulations and in the Build America, Buy America Act (“BABA”) for steel, iron, manufactured products, and construction materials used in the production of electric vehicle (“EV”) charging infrastructure. As discussed below, Nucor supports FHWA’s exclusion of iron and steel used in the housing of an EV charger from the scope of its waiver. Nucor also supports the agency’s simplified and narrowed definition of “EV charger” for purposes of the scope of the waiver. However, Nucor maintains that waiving the BABA requirements for any steel used in an EV charger is unnecessary and contrary to both Administration policy and Congressional intent. Nucor also has concerns with the unlimited duration of FHWA’s waiver. As an initial matter, Nucor supports FHWA’s exemption of EV charger housing components that are predominantly iron and steel from the scope of the waiver, such that these products must meet existing FHWA Buy America requirements. FHWA’s waiver states that “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.” FHWA should maintain this requirement. Steel products used in the EV charger housing, cabinet and enclosure are standard grade products composed primarily of hot-rolled, cold-rolled and/or corrosion-resistant steel and are readily available from domestic steel producers. Excluding these steel products from the scope of the waiver will help to promote the use of domestic goods, products, and materials in Federal government procurement, consistent with Congressional intent and Administration policy. Nucor also supports FHWA’s simplified and narrowed definition of “EV charger” for purposes of the scope of the waiver. In its proposed waiver, FHWA defined an “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 . . . .” The definition of “EV charger” as used in FHWA’s final waiver “only refers to the self contained EV charging unit; it does not include associated equipment.” By narrowing the definition of an “EV charger,” FHWA also narrows the potential scope of steel and other products subject to the waiver, thereby promoting the use of domestically produced goods in infrastructure projects, as intended. Indeed, the “associated equipment” will “fall under FHWA’s current Buy America requirements.” While Nucor appreciates the fact that the iron and steel used in EV charger housing must comply with FHWA’s Buy America requirements, FHWA should require that all steel used in the production of EV chargers are domestically produced. Indeed, as extensively discussed in Nucor’s September 30, 2022 comments on FHWA’s initial proposed waiver, there is no public interest justification for waiving the Buy America requirements for steel used in EV chargers. First, FHWA has successfully applied its Buy America requirements to steel components/subcomponents of manufactured products for decades, and suppliers on FHWA projects have needed to comply with these requirements for years. There is nothing unique about steel used in EV chargers that would make compliance more difficult. Moreover, domestic steel for use in EV chargers is readily available. According to the American Iron and Steel Institute, the domestic industry’s capacity utilization rate was 74 percent the week ending February 18, 2023 – a 6.8 percentage point decline as compared to the week ending February 18, 2022. Moreover, FHWA’s proposed waiver is contrary to the Administration’s policy of maximizing the use of steel in federally funded infrastructure as well as promoting clean energy. Indeed, a waiver that allows for the use of imported steel in federally funded highway projects, as this waiver does, prioritizes environmentally unfriendly foreign steel (most of which is made from high carbon-emitting blast furnace technology) at the expense of cleaner America-made steel (the majority of which is made with low-emitting electric arc furnace technology). FHWA’s waiver is also contrary to Congress’ intent in enacting Section 165 of the Surface Transportation Assistance Act of 1982 – i.e., to expand Buy America coverage to include all steel products. In addition, waiving the Buy America requirements with respect to steel and other products used in EV chargers also undermines Congress’ findings in enacting BABA. This includes Congress’ determination that “procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States.” Lastly, Nucor reiterates its concern regarding the indefinite duration of FHWA’s proposed waiver. FHWA’s waiver offers a phase-out approach, which would result in the partial phase out of the waiver in multiple steps during the 2023 and 2024 period. However, no end date for the waiver is provided, as the “{t}he waiver would then remain in place until terminated by FHWA.” While FHWA’s final waiver provides for periodic reviews, this fails to compensate for the lack of a termination date, which undermines the incentive to invest in domestic manufacturing and is contrary to the Office of Management and Budget’s guidance that BABA waivers should be “time-limited.”
Robert E. DeFrancesco 02/27/2023
Note that the following comments have been submitted via regulations.gov. On behalf of the Aluminum Extruders Council (AEC) and the Aluminum Extrusions Fair Trade Committee (AEFTC) (collectively “AEC/AEFTC”), we hereby submit the following comments in response to the Federal Highway Administration’s Waiver of Buy America Requirements for Electric Vehicle Chargers. Specifically, in this public interest waiver, the Federal Highway Administration (“FHWA”) is seeking to waive certain Buy America requirements in the Build America, Buy America Act (“BABA”) for steel, iron, manufactured products, and construction materials used in the production of electric vehicle (“EV”) charging infrastructure. For the reasons discussed below, the AEC/AEFTC strongly opposes FHWA’s waiver with respect to aluminum extrusions used in EV chargers. The AEC is an international trade association dedicated to servicing the needs of U.S. extruders. AEC members account for 80 percent of U.S. aluminum extrusion production and have over 80 extrusion operations across 31 U.S. states. In 2010, several AEC members formed the AEFTC—an ad hoc coalition of U.S. aluminum extrusions manufactures—to file antidumping and countervailing duty (“AD/CVD”) petitions with the U.S. Department of Commerce and U.S. International Trade Commission in order to curtail dumped and/or subsidized imports of aluminum extrusions from China that were crippling the U.S. extrusions industry. The AEFTC prevailed in those proceedings, and while the AD/CVD orders imposing tariffs on imports of Chinese extrusions have helped U.S. extruders win back market share of domestic consumption, measures like the Buy America provisions in the BABA are also essential to protecting and bolstering the U.S. extrusions industry. Chinese producers of aluminum extrusions continue to find ways to circumvent the AD/CVD orders via transhipment through third countries, and only provisions like the Buy America requirements in BABA can adequately ensure that U.S. producers get the opportunity to build the infrastructure needed to support the country’s clean energy future. As detailed below, there is no public interest basis for waiving the Buy America requirements with respect to the aluminum extrusions used in EV chargers. As AEC/AEFTC discussed extensively in its September 30, 2022 comments on FHWA’s initial proposed BABA waiver for EV charging infrastructure, there is no public interest justification for waiving the Buy America requirements with respect to aluminum extrusions used in EV chargers. First, aluminum extrusions, which are commonly used in EV charging station manufacturing, are readily available. Second, FHWA’s waiver is contrary to Administration policy and Congressional intent in enacting BABA. Also concerning is the fact that FHWA’s waiver is for an unlimited duration. For these reasons, FHWA should decline to implement its waiver with respect to aluminum extrusions. As an initial matter, aluminum extrusions are widely used in “EV chargers,” as defined in the waiver, and are available in sufficient domestic supply. For example, extrusions are used for various structural components like heat sinks, support feet, hinges and doors, and are further utilized by many EV charging station producers for the outer shell of the charging station itself. Extrusions are also used in internal components of EV charging stations. Importantly, aluminum extrusions used in EV charging stations can be produced by any extruder. There is nothing unique or proprietary about the process of extruding aluminum for EV charging applications that would limit the pool of domestic extruders and create a domestic supply crunch. In fact, several AEC members have bid to supply several of the EV charging station manufacturers listed above, only to lose that business to unfairly priced imports from various countries in Southeast Asia. Extruders in the United States can and do produce and supply aluminum extrusions for these charging stations. In the unlikely circumstance where a particular extrusion product for use in an EV charger is not available domestically in sufficient volumes or the cost is “unreasonable,” parties have the option of seeking a project-specific waiver. A blanket waiver of the Buy America requirements for aluminum extrusions, however, used in EV chargers absent any evidence that domestic extrusions are unavailable is simply not in the public interest. Moreover, FHWA’s proposed waiver is contrary to the Administration’s policy of maximizing the use of U.S. products in federally funded infrastructure. The Administration has clearly expressed its position that when “we spend American taxpayers’ dollars, it should support American workers and businesses.” Indeed, in his first week of office, President Biden signed Executive Order 14005, Ensuring the Future is Made in All of America by All of America’s Workers, which states that “the United States Government should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.” More recently, the Administration declared that, “unlike in the past, Build America, Buy America waivers will not foreclose American manufacturing, but send clear market signals, creating an incentive for firms to invest in America and create good jobs in our communities.” Providing a Buy America waiver for aluminum extrusions used in EV chargers directly undermines these objectives. Waiving the Buy America requirements is also contrary to the Administration’s aim to promote domestic manufacturing in clean energy, including EVs. The Administration has made clear its goal of positioning “the United States to lead the EV future – to create jobs, make more in America, and fight climate change while advancing environmental justice.” President Biden believes that the “future of the auto industry is electric, and America can own that future by building more here at home, creating good-paying jobs in the process.” Allowing the use of imported extrusions in EV charger production clearly undercuts these policy aims. As support for its enactment of BABA, Congress found that “common construction materials used in public works infrastructure projects, including non-ferrous metals,” e.g., aluminum, “are not adequately covered by a domestic content procurement preference, thus limiting the impact of taxpayer purchases to enhance supply chains in the United States.” Congress further found that domestic preference requirements “act to prevent shifts in production to countries that rely on production practices that are significantly less energy efficient and far more polluting than those in the United States.” In addition, Congress found that in “procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States.”11 A blanket public interest waiver for all aluminum extrusions used in the production of EV chargers is inconsistent with the Congressional aims specified in the law. Lastly, AEC/AEFTC has concerns regarding the unlimited duration of FHWA’s waiver. The waiver offers a partial phase-out approach, which would result in the partial phase out of the waiver in multiple steps during the 2023 and 2024 period. However, no end date for the waiver is provided. To the contrary, “{t}he waiver would then remain in place until terminated by FHWA.” That FHWA’s final waiver provides for periodic review does not undermine the fact that no termination date is provided for the waiver. The lack of a termination date undermines the incentive to invest in domestic manufacturing and is contrary to the Office of Management and Budget’s guidance that BABA waivers should be “time-limited.” For the reasons discussed above, FHWA should decline to implement a Buy America waiver for aluminum extrusions a used in EV chargers.
Deanna Archuleta 03/24/2023
1) On February 21, 2023, the Federal Highway Administration published the Waiver of Buy America Requirements for Electric Vehicle Chargers, which established a temporary public interest waiver to waive Buy America requirements for steel, iron, manufactured products, and construction materials in electric vehicle (EV) chargers. This waiver, however, does not apply during any phase to EV charging housing components that are predominantly steel and iron. We are seeking the following information regarding the housing components: Is it acceptable to manufacturer and apply the finishing coatings to the housing components in the United States, and then subsequently export them for partial charger assembly overseas, and eventually have the partially completed charging units be imported for final assembly in the United States? What does FHWA consider to be sufficient documentation that the housing components were produced, stamped or rolled and had finishing coatings applied in the US before export? What does the FHWA consider to be the steel or iron content that determines that a charging housing component is predominantly steel and iron? 2) There is growing concern that there is not enough US capacity to meet the demand for the production of the EV charger housing components in the United States. What was the basis for the FHWA’s determination to exclude the housing components from the public interest waiver? Is FHWA prepared to act if in fact a state applies for a waiver on the housing components if orders cannot be filled under the respective state NEVI programs in a timely manner? How does the FHWA plan to monitor both the cost and availability of EV fast chargers as a result of not providing a waiver for the housing components built outside the US prior to implementation of phase 1?

Information Technology Industry Council (ITI) 02/27/2023

ITI Comments in Support of Temporary Public Interest Waiver of Build America, Buy America Preference February 27, 2023 Federal Highway Administration (FHWA) U.S. Department of Transportation (DoT) Re: Docket: FHWA-2022-0023, Temporary Public Interest Waiver of Build America, Buy America Domestic Content Procurement Preference as Applied to Steel, Iron, Manufactured Products, and Construction Materials in Electric Vehicle Chargers Dear FHWA: Thank you for the opportunity to provide comments on FHWA’s proposed temporary public interest waiver of the Build America, Buy America (BABA) domestic content procurement preference as applied to iron, steel, manufactured products, and construction materials in electric vehicle (EV) chargers, as well as FHWA’s removal of EV chargers from the Manufactured Products General Waiver (48 FR 53099). The Information Technology Industry Council (ITI) is the premier global advocate for technology, representing the world’s most innovative companies. Founded in 1916, ITI is an international trade association with a team of professionals on four continents. We promote public policies and industry standards that advance competition and innovation worldwide. Our diverse membership and expert staff provide policymakers the broadest perspective and thought leadership from technology, hardware, software, services, and related industries. ITI supports FHWA’s temporary public interest waiver for iron, steel, manufactured products, and construction materials in EV chargers, as failing to waive domestic sourcing requirements for these technologies will have significant negative impacts in terms of implementation delays and increased costs. We appreciate FHWA’s thoughtful approach to drafting the waiver based on its significant engagement with industry, and urge the U.S. Government as a whole to consider waiving the application of BABA procurement preferences for IT procured as part of infrastructure projects. We believe this reflects a reasonable approach to enabling the implementation of Buy America requirements and the administration’s objectives while avoiding negative outcomes. Thank you for providing an opportunity for ITI and our member companies to contribute input to the FHWA’s public interest temporary waiver. Sincerely, Megan Petersen Vice President, Public Sector Policy and Counsel Information Technology Industry Council (ITI)

Christopher B. Weld 02/27/2023

Note that the following comments have been submitted via regulations.gov On behalf of Nucor Corporation (“Nucor”), we hereby submit the following comments in response to the Federal Highway Administration’s Notice of Waiver of Buy America Requirements for Electric Vehicle Chargers. Specifically, the Federal Highway Administration (“FHWA”) intends to waive certain Buy America requirements in its regulations and in the Build America, Buy America Act (“BABA”) for steel, iron, manufactured products, and construction materials used in the production of electric vehicle (“EV”) charging infrastructure. As discussed below, Nucor supports FHWA’s exclusion of iron and steel used in the housing of an EV charger from the scope of its waiver. Nucor also supports the agency’s simplified and narrowed definition of “EV charger” for purposes of the scope of the waiver. However, Nucor maintains that waiving the BABA requirements for any steel used in an EV charger is unnecessary and contrary to both Administration policy and Congressional intent. Nucor also has concerns with the unlimited duration of FHWA’s waiver. As an initial matter, Nucor supports FHWA’s exemption of EV charger housing components that are predominantly iron and steel from the scope of the waiver, such that these products must meet existing FHWA Buy America requirements. FHWA’s waiver states that “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.” FHWA should maintain this requirement. Steel products used in the EV charger housing, cabinet and enclosure are standard grade products composed primarily of hot-rolled, cold-rolled and/or corrosion-resistant steel and are readily available from domestic steel producers. Excluding these steel products from the scope of the waiver will help to promote the use of domestic goods, products, and materials in Federal government procurement, consistent with Congressional intent and Administration policy. Nucor also supports FHWA’s simplified and narrowed definition of “EV charger” for purposes of the scope of the waiver. In its proposed waiver, FHWA defined an “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 . . . .” The definition of “EV charger” as used in FHWA’s final waiver “only refers to the self contained EV charging unit; it does not include associated equipment.” By narrowing the definition of an “EV charger,” FHWA also narrows the potential scope of steel and other products subject to the waiver, thereby promoting the use of domestically produced goods in infrastructure projects, as intended. Indeed, the “associated equipment” will “fall under FHWA’s current Buy America requirements.” While Nucor appreciates the fact that the iron and steel used in EV charger housing must comply with FHWA’s Buy America requirements, FHWA should require that all steel used in the production of EV chargers are domestically produced. Indeed, as extensively discussed in Nucor’s September 30, 2022 comments on FHWA’s initial proposed waiver, there is no public interest justification for waiving the Buy America requirements for steel used in EV chargers. First, FHWA has successfully applied its Buy America requirements to steel components/subcomponents of manufactured products for decades, and suppliers on FHWA projects have needed to comply with these requirements for years. There is nothing unique about steel used in EV chargers that would make compliance more difficult. Moreover, domestic steel for use in EV chargers is readily available. According to the American Iron and Steel Institute, the domestic industry’s capacity utilization rate was 74 percent the week ending February 18, 2023 – a 6.8 percentage point decline as compared to the week ending February 18, 2022. Moreover, FHWA’s proposed waiver is contrary to the Administration’s policy of maximizing the use of steel in federally funded infrastructure as well as promoting clean energy. Indeed, a waiver that allows for the use of imported steel in federally funded highway projects, as this waiver does, prioritizes environmentally unfriendly foreign steel (most of which is made from high carbon-emitting blast furnace technology) at the expense of cleaner America-made steel (the majority of which is made with low-emitting electric arc furnace technology). FHWA’s waiver is also contrary to Congress’ intent in enacting Section 165 of the Surface Transportation Assistance Act of 1982 – i.e., to expand Buy America coverage to include all steel products. In addition, waiving the Buy America requirements with respect to steel and other products used in EV chargers also undermines Congress’ findings in enacting BABA. This includes Congress’ determination that “procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States.” Lastly, Nucor reiterates its concern regarding the indefinite duration of FHWA’s proposed waiver. FHWA’s waiver offers a phase-out approach, which would result in the partial phase out of the waiver in multiple steps during the 2023 and 2024 period. However, no end date for the waiver is provided, as the “{t}he waiver would then remain in place until terminated by FHWA.” While FHWA’s final waiver provides for periodic reviews, this fails to compensate for the lack of a termination date, which undermines the incentive to invest in domestic manufacturing and is contrary to the Office of Management and Budget’s guidance that BABA waivers should be “time-limited.”

Robert E. DeFrancesco 02/27/2023

Note that the following comments have been submitted via regulations.gov. On behalf of the Aluminum Extruders Council (AEC) and the Aluminum Extrusions Fair Trade Committee (AEFTC) (collectively “AEC/AEFTC”), we hereby submit the following comments in response to the Federal Highway Administration’s Waiver of Buy America Requirements for Electric Vehicle Chargers. Specifically, in this public interest waiver, the Federal Highway Administration (“FHWA”) is seeking to waive certain Buy America requirements in the Build America, Buy America Act (“BABA”) for steel, iron, manufactured products, and construction materials used in the production of electric vehicle (“EV”) charging infrastructure. For the reasons discussed below, the AEC/AEFTC strongly opposes FHWA’s waiver with respect to aluminum extrusions used in EV chargers. The AEC is an international trade association dedicated to servicing the needs of U.S. extruders. AEC members account for 80 percent of U.S. aluminum extrusion production and have over 80 extrusion operations across 31 U.S. states. In 2010, several AEC members formed the AEFTC—an ad hoc coalition of U.S. aluminum extrusions manufactures—to file antidumping and countervailing duty (“AD/CVD”) petitions with the U.S. Department of Commerce and U.S. International Trade Commission in order to curtail dumped and/or subsidized imports of aluminum extrusions from China that were crippling the U.S. extrusions industry. The AEFTC prevailed in those proceedings, and while the AD/CVD orders imposing tariffs on imports of Chinese extrusions have helped U.S. extruders win back market share of domestic consumption, measures like the Buy America provisions in the BABA are also essential to protecting and bolstering the U.S. extrusions industry. Chinese producers of aluminum extrusions continue to find ways to circumvent the AD/CVD orders via transhipment through third countries, and only provisions like the Buy America requirements in BABA can adequately ensure that U.S. producers get the opportunity to build the infrastructure needed to support the country’s clean energy future. As detailed below, there is no public interest basis for waiving the Buy America requirements with respect to the aluminum extrusions used in EV chargers. As AEC/AEFTC discussed extensively in its September 30, 2022 comments on FHWA’s initial proposed BABA waiver for EV charging infrastructure, there is no public interest justification for waiving the Buy America requirements with respect to aluminum extrusions used in EV chargers. First, aluminum extrusions, which are commonly used in EV charging station manufacturing, are readily available. Second, FHWA’s waiver is contrary to Administration policy and Congressional intent in enacting BABA. Also concerning is the fact that FHWA’s waiver is for an unlimited duration. For these reasons, FHWA should decline to implement its waiver with respect to aluminum extrusions. As an initial matter, aluminum extrusions are widely used in “EV chargers,” as defined in the waiver, and are available in sufficient domestic supply. For example, extrusions are used for various structural components like heat sinks, support feet, hinges and doors, and are further utilized by many EV charging station producers for the outer shell of the charging station itself. Extrusions are also used in internal components of EV charging stations. Importantly, aluminum extrusions used in EV charging stations can be produced by any extruder. There is nothing unique or proprietary about the process of extruding aluminum for EV charging applications that would limit the pool of domestic extruders and create a domestic supply crunch. In fact, several AEC members have bid to supply several of the EV charging station manufacturers listed above, only to lose that business to unfairly priced imports from various countries in Southeast Asia. Extruders in the United States can and do produce and supply aluminum extrusions for these charging stations. In the unlikely circumstance where a particular extrusion product for use in an EV charger is not available domestically in sufficient volumes or the cost is “unreasonable,” parties have the option of seeking a project-specific waiver. A blanket waiver of the Buy America requirements for aluminum extrusions, however, used in EV chargers absent any evidence that domestic extrusions are unavailable is simply not in the public interest. Moreover, FHWA’s proposed waiver is contrary to the Administration’s policy of maximizing the use of U.S. products in federally funded infrastructure. The Administration has clearly expressed its position that when “we spend American taxpayers’ dollars, it should support American workers and businesses.” Indeed, in his first week of office, President Biden signed Executive Order 14005, Ensuring the Future is Made in All of America by All of America’s Workers, which states that “the United States Government should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.” More recently, the Administration declared that, “unlike in the past, Build America, Buy America waivers will not foreclose American manufacturing, but send clear market signals, creating an incentive for firms to invest in America and create good jobs in our communities.” Providing a Buy America waiver for aluminum extrusions used in EV chargers directly undermines these objectives. Waiving the Buy America requirements is also contrary to the Administration’s aim to promote domestic manufacturing in clean energy, including EVs. The Administration has made clear its goal of positioning “the United States to lead the EV future – to create jobs, make more in America, and fight climate change while advancing environmental justice.” President Biden believes that the “future of the auto industry is electric, and America can own that future by building more here at home, creating good-paying jobs in the process.” Allowing the use of imported extrusions in EV charger production clearly undercuts these policy aims. As support for its enactment of BABA, Congress found that “common construction materials used in public works infrastructure projects, including non-ferrous metals,” e.g., aluminum, “are not adequately covered by a domestic content procurement preference, thus limiting the impact of taxpayer purchases to enhance supply chains in the United States.” Congress further found that domestic preference requirements “act to prevent shifts in production to countries that rely on production practices that are significantly less energy efficient and far more polluting than those in the United States.” In addition, Congress found that in “procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States.”11 A blanket public interest waiver for all aluminum extrusions used in the production of EV chargers is inconsistent with the Congressional aims specified in the law. Lastly, AEC/AEFTC has concerns regarding the unlimited duration of FHWA’s waiver. The waiver offers a partial phase-out approach, which would result in the partial phase out of the waiver in multiple steps during the 2023 and 2024 period. However, no end date for the waiver is provided. To the contrary, “{t}he waiver would then remain in place until terminated by FHWA.” That FHWA’s final waiver provides for periodic review does not undermine the fact that no termination date is provided for the waiver. The lack of a termination date undermines the incentive to invest in domestic manufacturing and is contrary to the Office of Management and Budget’s guidance that BABA waivers should be “time-limited.” For the reasons discussed above, FHWA should decline to implement a Buy America waiver for aluminum extrusions a used in EV chargers.

Deanna Archuleta 03/24/2023

1) On February 21, 2023, the Federal Highway Administration published the Waiver of Buy America Requirements for Electric Vehicle Chargers, which established a temporary public interest waiver to waive Buy America requirements for steel, iron, manufactured products, and construction materials in electric vehicle (EV) chargers. This waiver, however, does not apply during any phase to EV charging housing components that are predominantly steel and iron. We are seeking the following information regarding the housing components: Is it acceptable to manufacturer and apply the finishing coatings to the housing components in the United States, and then subsequently export them for partial charger assembly overseas, and eventually have the partially completed charging units be imported for final assembly in the United States? What does FHWA consider to be sufficient documentation that the housing components were produced, stamped or rolled and had finishing coatings applied in the US before export? What does the FHWA consider to be the steel or iron content that determines that a charging housing component is predominantly steel and iron? 2) There is growing concern that there is not enough US capacity to meet the demand for the production of the EV charger housing components in the United States. What was the basis for the FHWA’s determination to exclude the housing components from the public interest waiver? Is FHWA prepared to act if in fact a state applies for a waiver on the housing components if orders cannot be filled under the respective state NEVI programs in a timely manner? How does the FHWA plan to monitor both the cost and availability of EV fast chargers as a result of not providing a waiver for the housing components built outside the US prior to implementation of phase 1?