[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Notices]
[Pages 77140-77143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24696]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2023-0029]


Biannual Request for Information on the Status of the Electric 
Vehicle (EV) Charger Industry

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

ACTION: Notice; request for information (RFI).

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SUMMARY: On February 21, 2023, FHWA established a Build America, Buy 
America (BABA) implementation plan by publishing a temporary public 
interest waiver of Buy America requirements for steel, iron, 
manufactured products, and construction materials in electric vehicle 
(EV) chargers. This short-term, temporary waiver was structured to 
enable 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. While promulgating the final 
waiver, FHWA announced that it would conduct biannual RFIs to receive 
information on the status of the EV charger industry. Requests for 
comment include, but are not limited to, the number of chargers 
recently produced by EV charger manufacturers, projections on chargers 
expected to be produced, and the number of EV chargers recently 
purchased by recipients of Federal financial assistance and projected 
to be purchased by recipients of Federal financial assistance in the 
near future.

DATES: Comments must be received on or before December 26, 2023. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit comments by only one of the following ways:
     Federal eRulemaking Portal: Go to www.regulations.gov and 
follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 
p.m. E.T., Monday through Friday, except Federal holidays. The 
telephone number is (202) 366-9329.
     Instructions: You must include the agency name and docket 
number at the beginning of your comments. Except as described below 
under the heading ``Confidential Business Information,'' all 
submissions received, including any personal information provided, will 
be posted without change or alteration to www.regulations.gov. For more 
information, you may review the U.S. DOT's complete Privacy Act 
Statement published in the Federal Register on April 11, 2000 (65 FR 
19477).

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Mr. Brian Hogge, FHWA Office of Infrastructure, (202) 
366-1562, or via email at [email protected]. For legal questions, 
please contact Mr. David Serody, FHWA Office of the 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:

Electronic Access and Filing

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

Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this notice contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this notice, it is important that you 
clearly designate the submitted comments as CBI.
    You may ask FHWA to give confidential treatment to information you 
give to the Agency by taking the following steps: (1) Mark each page of 
the original document submission containing CBI as ``Confidential''; 
(2) send FHWA, along with the original document, a second copy of the 
original document with the CBI deleted; and (3) explain why the 
information you are submitting is CBI. The FHWA will protect 
confidential information complying with these requirements to the 
extent required under applicable law. If DOT receives a FOIA request 
for the information that the applicant has marked in accordance with 
this notice, DOT will follow the procedures described in its FOIA 
regulations at 49 CFR 7.29. Only information that is marked in 
accordance with this notice and ultimately determined to be exempt from 
disclosure under FOIA and Sec.  7.29 will not be released to a 
requester or placed in the public docket of this notice. Submissions 
containing CBI should be sent to: Mr. Brian Hogge, FHWA, 1200 New 
Jersey Avenue SE, HICP-20, Washington, DC 20590 via mail or via email 
at [email protected]. Any comment submissions that FHWA receives that 
are not specifically designated as CBI will be placed in the public 
docket for this matter.

Background

    On August 31, 2022, FHWA issued a notice of a proposed waiver of 
Buy America requirements for EV chargers, at 87 FR 53539 (``Proposed 
Waiver''). After reviewing the comments received, on February 21, 2023, 
FHWA established a BABA Implementation Plan for EV charging equipment 
through a temporary public interest waiver of Buy America requirements 
for steel, iron, manufactured products, and construction materials in 
EV chargers under 23 U.S.C. 313 and section 70914

[[Page 77141]]

of the Bipartisan Infrastructure Law (BIL), enacted as the 
Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58), at 88 
FR 10619 (``Final Waiver''). As of March 23, 2023 (the effective date), 
the Final Waiver applied to all EV chargers manufactured before July 1, 
2024, whose final assembly occurs in the United States, and whose 
installation has begun by October 1, 2024 (``the Final Assembly 
Phase''). Starting with EV chargers manufactured on or after July 1, 
2024, FHWA will begin to phase out coverage of EV chargers under the 
Final Waiver, and the Final Waiver will then only apply to EV chargers 
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 
(``the 55 percent phase''). Further, under the Final Waiver, if an EV 
charger's housing is predominantly iron or steel, such housing is not 
covered by the Final Waiver at any time; instead, such housing must 
comply with FHWA's existing Buy America requirements.
    The FHWA intends to issue at least one additional RFI before July 
1, 2024.

Comments Received After Issuance of Waiver

    In accordance with the provisions of section 117 of the SAFETEA-LU 
Technical Corrections Act of 2008 (Pub. L. 110-244), upon publishing 
the Final Waiver in the Federal Register, FHWA provided an opportunity 
for public comment on this finding until March 22, 2023.\1\ The FHWA 
received four comments during this period: one from the Information 
Technology Industry Council (ITI), one from an individual from the 
Vogel Group (Vogel), one from the Nucor Corporation (Nucor), and one 
from the Aluminum Extruders Council and Aluminum Extrusions Fair Trade 
Committee (AEC/AEFTC). As FHWA believes that communication and 
collaboration with stakeholders is key to ensuring that the Final 
Waiver both enables EV charger acquisition and installation to 
immediately proceed while also ensuring the application of Buy America 
to EV chargers, it is taking this opportunity to respond to these 
comments.
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    \1\ Pursuant to section 117(a)(2) of the SAFETEA-LU Technical 
Corrections Act of 2008, FHWA did not delay the effective date of 
its finding due to the requirement that it provide an opportunity 
for public comment.
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    The ITI commented that it supported the Final Waiver and urged the 
U.S. Government as a whole to consider waiving the application of BABA 
procurement preferences for information technology procured as part of 
infrastructure projects. The FHWA appreciates ITI's support but issuing 
a governmentwide waiver is beyond the scope of this comment period and 
FHWA's authority.
    Vogel commented that there is growing concern that there is not 
enough domestic capacity to meet the demand for the production of the 
housing of EV chargers in the United States and asked how FHWA plans to 
monitor the cost and availability of EV chargers if Buy America-
compliant housing is not available. The FHWA would welcome data on this 
issue (see the questions for EV charger manufacturers below) and will 
use these biannual RFIs to monitor the cost and availability of EV 
chargers. Finally, Vogel questioned whether FHWA is prepared to act if 
a State applies for a waiver of Buy America requirements for the 
housing of an EV charger. The FHWA will respond to all waiver requests 
with respect to the housing of an EV charger in accordance with FHWA's 
existing policies and applicable laws and regulations.
    Vogel also asked several questions regarding the Final Waiver's 
applicability to the housing of EV chargers. In particular, Vogel 
questioned whether it is acceptable to manufacture housing components 
in the United States, export the housing components for partial 
assembly overseas, and then have the partially-completed charger 
imported for final assembly in the United States; what FHWA considers 
to be sufficient documentation that the housing components were 
produced in the United States before exportation; and what FHWA 
considers to be the steel or iron content that makes an EV charger's 
housing predominantly iron or steel. To the extent that FHWA has not 
addressed these concerns in existing guidance documents discussing 
FHWA's Buy America requirements, including the set of frequently asked 
questions (FAQs) responding to questions concerning the Final 
Waiver,\2\ FHWA will seek to do so in subsequent guidance documents. In 
this RFI, FHWA also invites comments on these FAQs as it works to 
develop additional guidance that is useful for stakeholders to achieve 
the Final Waiver's goals of enabling EV charger acquisition and 
installation to quickly proceed while ensuring the application of Buy 
America to EV chargers.
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    \2\ The FAQs related to the Final Waver are available at: 
https://www.fhwa.dot.gov/construction/contracts/buyam_qaev/buyam_qaev.pdf. The FHWA has also issued other FAQs regarding Buy 
America, which can be found at: https://www.fhwa.dot.gov/construction/contracts/buyam_qa.cfm.
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    Nucor and the AEC/AEFTC both provided similar comments, which 
largely repeated concerns raised in their separate comments on the 
Proposed Waiver. Both commenters repeated that the Final Waiver is 
contrary to Congressional intent in enacting BIL, where Congress found, 
in section 70911(4), that ``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.'' Nucor further added that the Final Waiver is contrary to 
Congressional intent in enacting section 165 of the Surface 
Transportation Assistance Act of 1982 (Pub. L. 97-424), which expanded 
Buy America coverage to steel products. The AEC/AEFTC commented that 
the Final Waiver is generally contrary to the Administration's policy 
of maximizing the use of American products in federally funded 
infrastructure and promoting domestic manufacturing in clean energy. 
Nucor and AEC/AEFTC also reiterated their concerns, stated in their 
comments to the Proposed Waiver, regarding the perceived unlimited 
duration of the Final Waiver, as both commenters stated that there is 
no end date specifically provided in the Final Waiver.
    Nucor also repeated the claim it made in the Proposed Waiver that 
the Final Waiver is contrary to the Administration's policy of 
promoting clean energy because it allows for the use of imported steel, 
which prioritizes environmentally unfriendly foreign steel at the 
expense of cleaner America-made steel. Nucor further repeated that FHWA 
has successfully applied its Buy America requirements to steel 
components and subcomponents of manufactured products for decades, that 
suppliers of FHWA products have needed to comply with these 
requirements for years, and that there is nothing unique about steel 
used in EV chargers that would make compliance more difficult. Finally, 
Nucor repeated its belief that domestic steel for use in EV chargers is 
readily available.
    As these comments from Nucor and the AEC/AEFTC repeat what these 
commenters provided in response to the Proposed Waiver, which FHWA 
responded to in issuing the Final Waiver, FHWA does not find it 
necessary to provide further detailed responses.\3\
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    \3\ For FHWA's response that the waiver is contrary to 
Congressional intent in enacting section 165 of the Surface 
Transportation Assistance Act of 1982 and BIL and Administrative 
policy regarding domestic production, see id. At 10623. For FHWA's 
response to Nucor's comment regarding the perceived unlimited 
duration of the waiver, see id. At 10622-23. For FHWA's response to 
Nucor's claims on the environmental impacts of foreign steel, see 88 
FR at 10624. For FHWA's response to Nucor's comment that FHWA has 
successfully applied its Buy America requirements to steel 
components of manufactured products for decades, see id. At 10624. 
For FHWA's response that there is nothing unique about steel used in 
EV chargers that would make compliance more difficult, see id. For 
FHWA's response to Nucor's comment that domestic steel for use in EV 
chargers is readily available, see id. At 10632-33. The FHWA notes 
that in response to comments by Nucor and others that the domestic 
steel industry has the capacity to supply steel for use in EV 
chargers, FHWA determined that it was not in the public interest to 
apply the waiver to the housing of an EV charger if it is 
predominantly iron or steel.

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[[Page 77142]]

    The AEC/AEFTC emphasized that it strongly opposes the Final 
Waiver's coverage of aluminum extrusions used in EV chargers. The AEC/
AEFTC opined that aluminum extrusions--used in EV chargers and 
components of EV chargers--are readily available from domestic sources. 
While this may be true, removing aluminum extrusions from coverage 
under this waiver would mean that these extrusions would need to comply 
with existing Buy America requirements under 23 U.S.C. 313 and section 
70914 of BIL, and it is not clear to FHWA whether the domestic supply 
of aluminum extrusions mentioned by AEC/AEFTC comply with these 
requirements. The comment did not provide data on whether all 
manufacturing processes used to make aluminum extrusions occurred in 
the United States, nor did it state the amount of extrusions that are 
produced in compliance with Buy America requirements and the amount 
required by the EV charger industry for FHWA to ensure that removing 
coverage of extrusions from the Final Waiver would not detrimentally 
impact the delivery of EV infrastructure projects.

Request for Information

    In the Final Waiver, FHWA announced that it would conduct biannual 
RFIs during the final assembly phase to assess industry progress on 
producing an EV charger that would conform with the 55 percent phase 
and determine whether the EV charger industry is on track to meet the 
timeline set out in the Final Waiver. As stated in the Final Waiver, 
based on the information received in response to these RFIs, FHWA may 
modify the start date of the 55 percent phase after providing adequate 
notice of its intention to do so. Under the 55 percent phase, as laid 
out in the Final Waiver, EV chargers that are manufactured on and after 
July 1, 2024, would conform with the Final 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.
    The FHWA encourages commenters to share all information responsive 
to the questions below, including confidential information. Doing so 
will allow FHWA a complete picture of the current state of the domestic 
EV charger industry and its anticipated ability to meet 55 percent 
domestic content standard by July 1, 2024, as provided in the final 
waiver. The FHWA therefore encourages detailed responses where 
possible, including confidential information where applicable, from all 
stakeholders to ensure that FHWA has a complete picture of the domestic 
EV charging industry.
    The FHWA requests information on the following questions. Please 
indicate in your written response which question(s) you are answering. 
The FHWA encourages stakeholders to answer as many questions as 
possible.

EV Charger Manufacturers

    1. Approximately how many EV chargers have you manufactured since 
the beginning of calendar year 2023 until now that are ready for 
installation? What are the charger types (i.e., direct-current fast 
chargers (DCFC) or alternating-current level 2 (ACL2) chargers) and 
specifications (e.g., maximum charging power, connector type)?
    a. Of the chargers manufactured since the beginning of calendar 
year 2023 until now that are ready for installation, how many have 
final assembly occur in the United States and have the housing, if 
predominantly iron or steel, comply with FHWA's existing Buy America 
requirements? What are the types of these chargers (i.e., DCFC or ACL2 
chargers) and specifications (e.g., maximum charging power, connector 
type)?
    b. Of the chargers manufactured since the beginning of the calendar 
year until now that are ready for installation, how many have final 
assembly occur in the United States; have the housing, if predominantly 
iron or steel, comply with FHWA's existing Buy America requirements; 
and have the cost of components manufactured in the United States be at 
least 55 percent of the cost of all components? What are the types of 
these chargers (i.e., DCFC or ACL2 chargers) and specifications (e.g., 
maximum charging power, connector type)?
    2. Of the EV chargers you have manufactured since the beginning of 
calendar year 2023 until now that are ready for installation, how many 
are intended to be compliant with FHWA's NEVI Standards and 
Requirements (23 CFR part 680)?
    a. Of these NEVI-compliant chargers referred to in question 2, how 
many have final assembly occur in the United States and have housing, 
if predominantly iron or steel, that complies with FHWA's existing Buy 
America requirements? What are the charger types (i.e., DCFC or ACL2 
chargers) and specifications (e.g., maximum charging power, connector 
type)?
    b. Of these NEVI-compliant chargers referred to in question 2, how 
many have final assembly occur in the United States; have housing, if 
predominantly iron or steel, that complies with FHWA's existing Buy 
America requirements; and have the cost of components manufactured in 
the United States be at least 55 percent of the cost of all components? 
What are the charger types (i.e., DCFC or ACL2 chargers) and 
specifications (e.g., maximum charging power, connector type)?
    3. What is the average time between when a charger is ordered and 
when it is finished being manufactured? What is the average time 
between when a charger is ordered and when it is shipped? Do these 
times vary? If so, why?
    4. Approximately how many EV chargers do you expect to produce from 
now until June 30, 2024? What do you expect the charger types (i.e., 
DCFC or ACL2 chargers) and specifications (e.g., maximum charging 
power, connector type) to be?
    5. Of the chargers expected to be produced from now until June 30, 
2024, how many are expected to be compliant with FHWA's NEVI Standards 
and Requirements (23 CFR part 680)?
    a. Of the NEVI-compliant chargers expected to be produced from now 
until June 30, 2024, how many are expected to have final assembly occur 
in the United States and have housing, if predominantly iron or steel, 
that complies with FHWA's existing Buy America requirements? What are 
the expected charger types (i.e., DCFC or ACL2 chargers) and 
specifications (e.g., maximum charging power, connector type)?
    b. Of the NEVI-compliant chargers expected to be produced from now 
until June 30, 2024, how many are expected to have final assembly occur 
in the United States; have housing, if predominantly iron or steel, 
that complies with FHWA's existing Buy

[[Page 77143]]

America requirements; and have the cost of components manufactured in 
the United States be at least 55 percent of the cost of all components? 
What are the expected charger types (i.e., DCFC or ACL2 chargers) and 
specifications (e.g., maximum charging power, connector type)?
    6. For chargers expected to be ordered from now until June 30, 
2024, what is the average expected time between when a charger is 
ordered and when its manufacture is complete? What is the average 
expected time between when a charger is ordered and when it is shipped? 
Do you expect that these times will vary? If so, why?
    7. How have Federal incentives for EVs and EV charging 
infrastructure (such as the EV tax credits included in the Inflation 
Reduction Act (Pub. L. 117-169) and the Federal funding for EV charging 
infrastructure included in BIL) affected your business plans and 
models? To what extent have they supported or inhibited expansion or 
onshoring of your operations?
    8. Will you be able to supply EV chargers to all 50 States, as well 
as the District of Columbia and Puerto Rico? Have you experienced or do 
you expect to experience any limitations to distributing EV chargers to 
certain locations? If so, what are these limitations?
    9. What obstacles, if any, have you encountered in conducting final 
assembly of EV chargers in the United States? What obstacles do you 
expect to face in the future?
    10. What costs have you incurred in manufacturing EV chargers that 
comply with the Final Waiver? What costs do you expect to incur?
    11. What obstacles, if any, have you encountered in manufacturing 
EV chargers where the cost of components manufactured in the United 
States is at least 55 percent of the cost of all components? What 
obstacles do you expect to face in the future?
    12. What obstacles, if any, have you encountered in manufacturing 
EV chargers where the housing, if predominantly iron or steel, complies 
with FHWA's existing Buy America requirements?
    13. What benefits have you achieved by producing EV chargers in the 
United States compared to abroad (e.g., jobs created, wages paid, 
innovations spurred, more reliable supply chains, lower transportation 
costs)?
    14. Are there any components currently manufactured outside of the 
United States that could be manufactured in the United States at 
reasonable cost but are not? If yes, what are those components, and why 
do you believe that they are not being manufactured in the United 
States?
    15. What steps can be taken to increase the number of EV chargers 
that have final assembly occur in the United States; have the cost of 
components manufactured in the United States be at least 55 percent of 
the cost of all components; and, if the housing is predominantly iron 
or steel, have housing that complies with FHWA's existing Buy America 
requirements? How long might it take to undertake those steps?
    16. What is the volume of EV chargers that could be shifted to 
being manufactured to the specifications stated in question 15? How 
long would that shift take? How many EV chargers could be manufactured 
if that shift occurred and over what time period?

For Recipients of Federal Financial Assistance

    17. Please identify all EV charger manufacturers currently selling, 
manufacturing, or operating EV chargers in the United States, of which 
you are aware.
    18. Which EV charger manufacturers are you aware of that produce an 
EV charger where final assembly occurs in the United States and where, 
if the housing is predominantly iron or steel, the housing complies 
with BABA's iron and steel standards? Which EV manufacturers are you 
aware of that produce an EV charger where final assembly occurs in the 
United States; where the cost of components manufactured in the United 
States is at least 55 percent of the cost of all components; and where, 
if the housing is predominantly iron or steel, the housing complies 
with FHWA's existing Buy America requirements?
    19. What sources of Federal financial assistance have you used to 
purchase EV chargers from the beginning of calendar year 2023 until 
now? For each source, please list the specific source of Federal 
financial assistance (e.g., FHWA NEVI funds, EPA Clean School Bus 
Program funds), include the number of EV chargers purchased using that 
source of funds, the charger types purchased (i.e., DCFC or ACL2 
chargers) and their specifications (e.g., maximum charging power, 
connector type)?
    20. How many EV chargers do you expect to purchase from now until 
June 30, 2024, using Federal financial assistance? Please list all 
sources of Federal funding used (e.g., FHWA NEVI funds, EPA Clean 
School Bus Program funds). For each source, please include the number 
of EV chargers purchased using that source of funds, the charger types 
purchased (i.e., DCFC or ACL2 chargers) and their specifications (e.g., 
maximum charging power, connector type)?
    21. What is the average time between when EV chargers are purchased 
and when they are delivered? What is the average time between when EV 
chargers are purchased and when they are installed and operational? 
Have you found these times to vary? If so, why do you believe this is 
the case?
    22. Have you received different cost estimates for EV chargers 
manufactured before and after the publication of the Final Waiver on 
February 21, 2023? If so, what is the difference?
    23. Have you received different delivery time estimates for EV 
chargers manufactured before and after the publication of the Final 
Waiver on February 21, 2023? If so, what is the difference?
    24. Has any difficulty in procuring chargers that are compliant 
with the Final Waiver caused you to slow your implementation of EV 
charging? If so, how many chargers were affected and how long was the 
delay?

General

    25. The FHWA also requests comments on the FAQs on Buy America 
requirements for EV chargers that are posted at https://www.fhwa.dot.gov/construction/contracts/buyam_qaev/buyam_qaev.pdf, as 
well as any additional issues or topics that you believe would be 
useful for FHWA to address in subsequent guidance. In providing such 
comments, please refer to the specific question number in the FAQs that 
you are commenting on.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.85.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
[FR Doc. 2023-24696 Filed 11-7-23; 8:45 am]
BILLING CODE 4910-22-P