Michael Wagner内部能源和环境 //www.ludikid.com/author/mwagner/ 能源、商品和环境法律和政策开发 Thu,2023年2月23日15:41:00+00 en-US 时钟 一号 https://wordpress.org/?v=6.1.1&lxb_maple_bar_source=lxb_maple_bar_source https://insideenvironmentredesign.covingtonburlingblogs.com/wp-content/uploads/sites/47/2021/06/cropped-cropped-cropped-favicon-3-32x32.png Michael Wagner内部能源和环境 //www.ludikid.com/author/mwagner/ 32码 32码 FHWA购买美国电车充电 //www.ludikid.com/2023/02/fhwa-buy-america-waiver-for-electric-vehicle-chargers/ MichaelWagner和JenniferBentley Thu,2023年2月23日15:40:31+00 拜顿行政 交通策略 双党基础设施法 买美 电动车辆 联邦公路局 IIJA //www.ludikid.com/?p=8465 2023年2月21日FHWA发布美国电车充电通知88FD瑞格10619. 放弃通知后FHWA于2022年8月31日发布建议放弃通知,见87FD瑞格5339.响应强响应Continue Reading… s/www.federalregister.gov/documents/2023/02/21/2023-03498/waiver-buy-arrica-reaments-fer-瑞格10619. 放弃通知后FHWA于2022年8月31日发布建议放弃通知。 87Fed瑞格53369. 响应行业强力响应后,最终免责比拟议免责范围更窄、更精简,将阶段数从四分二分简化,并简化EV充电者定义。免责自2023年3月23日起适用。

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Bruit America,Buy AmericasL.117-58 § 70911.  FHWA has had a longstanding public interest waiver for manufactured products under its Buy America rules, but the new EV charger rule removes EV chargers entirely from the manufactured products waiver.  Instead, the new FHWA rule implements a separate EV charger-specific waiver that adopts a phased approach to domestic content requirements. 

The EV charger waiver has two phases.  From March 23, 2023 through June 30, 2024, for all EV chargers where final assembly takes place in the United States, domestic content requirements are waived.  Starting on July 1, 2024, domestic content requirements are waived for all EV chargers where 1) final assembly takes place in the United States, and 2) the cost of components manufactured in the United States exceeds 55% of the total cost of all components.  The waiver remains in place until terminated, but is required to be revisited after 5 years. 

There are a few caveats to the waiver:  One important carve out is that all predominantly steel and iron EV charger housing components are excluded from the waiver and must meet the Buy America requirements.  Additionally, for the purposes of the waiver, "EV charger" is defined to mean the EV charger unit itself and the equipment contained inside it.  Unlike the proposed waiver, the final waiver definition does not include associated equipment external to the EV charger, adjacent parking areas, and vehicle lanes, meaning that those materials must comply with Buy America as appropriate.

The waiver notice is comprehensive and includes additional detail that is beyond the scope of this blog post.  We will continue to monitor developments in this space.

RFI启动联邦清洁能源采购流程图 //www.ludikid.com/2022/02/rfi-begins-to-chart-course-for-federal-clean-energy-procurements/ Michael Wagner、Sarah Schuler和Peter Terenzio Tue2022年2月15日 碳市场、政策管理 净零能 碳化 清洁能源 电工 政府合同 政府采购 //www.ludikid.com/?p=7691 two联邦机构最近发布联合信息请求(RFI) 最新一系列具体步骤实现拜登政府到2030年实现联邦运营百分之百无碳电目标。RFI由DLA-Energy和GSA发布,为业界提供构建未来FEContinue Reading… p对齐='center'g/p>两个联邦机构最近发布s/sam.gov/opp/c3d70359fd94ab4972e85c418ed/View'RFI下提交的信息虽然本身不是采购契机,但将通知CFE竞赛参数和条件,联邦政府预期从今年起启动,从2023年开始交付合同。

(Our discussion of the EO is available here.)  As the EO recognizes, the Government is a significant consumer of electricity, and the Administration's emphasis on more sustainable energy policies – and accompanying CFE procurements – presents an immense opportunity for the clean energy industry.  DOD alone spent $551 million on electric power, transmission, and distribution services in FY21, and that figure likely will grow while the Administration develops its whole-of-government approach to implementing CFE.

To achieve the desired economies of scale to meet the Administration's goal to transition to 100 percent CFE on a net annual basis by 2030, the Government has signaled that it is willing to combine CFE procurements across multiple agencies, and to extend contract timelines up to 10 years, where appropriate.  The RFI seeks to collect the information to support the solicitation process, and, in terms of content, focuses on collecting information on retail electricity supplied CFE in identified competitive retail markets (specifically PJM, ERCOT, ISO-NE, MISO, and NYISO).[2]  Respondents are encouraged to provide the following details for each market:

  1. proposed or recommended approach to meet the Government's CFE goals,
  2. annual price for retail electricity supplied CFE in a specific market for a range of supply quantities,
  3. baseline hourly matching percentage for the CFE supply proposed under category 1, and
  4. portfolio adjustments necessary to increase the percentage CFE match on an hourly (24/7) basis, as proposed under category 3.

In soliciting this information, the RFI includes a series of tables in which interested respondents are invited to insert information about projected supply, storage, and pricing of CFE, though respondents also may choose to submit information in a narrative format.  The RFI also invites respondents to address their management of Renewable Energy Certificates (RECs) and other CFE accounting mechanisms, as well as the associated price of this tracking and certification process.

Interested respondents have the opportunity to submit questions about the RFI by February 25, and the deadline for responses is currently March 7, 2022.

[1] Carbon pollution-free electricity means "electrical energy produced from resources that generate no carbon emissions, including marine energy, solar, wind, hydrokinetic (including tidal, wave, current, and thermal), geothermal, hydroelectric, nuclear, renewably sourced hydrogen, and electrical energy generation from fossil resources to the extent there is active capture and storage of carbon dioxide emissions that meets EPA requirements."  E.O.14057, 86 Fed.瑞格70935 ,7094213 2021.

Trump新执行命令要求附加美购基础设施项目 //www.ludikid.com/2019/02/trumps-new-executive-order-requires-additional-buy-american-preferences-for-infrastructure-projects/ Sandy Hoe、Michael Wagner和Peter Terenzio Frii2019年2月15日 16:46:27+00 非分类化 基础设施 //www.ludikid.com/?p=7063 p对齐='Center'++p/p>上星期发布新执行令,题目为'加强购买-美对基础建设项目偏爱'。该命令扩展总统2017年4月前期的BuyAmericans and HireAmerica执行令,我们先前曾分析过此空间。2017年4月命令表示“它应该是.Continue Reading…

Last week, President Trump issued a new executive order, entitled "Strengthening Buy-American Preferences for Infrastructure Projects."  This order serves as an extension of the President's earlier April 2017 "Buy American and Hire American" executive order, which we have previously analyzed in this space.  The April 2017 order stated that "it shall be the policy of the executive branch to buy American and hire American," and, among other things, directed agencies to "scrupulously, monitor, enforce, and comply with" domestic preference laws (referred to by the executive order as "Buy American Laws") and to minimize use of waivers that would permit the purchase of foreign end products.

The President's new order continues to emphasize the importance of "the use of goods, products, and materials produced in the United States," but is specifically directed towards infrastructure projects that are recipients of federal financial assistance awards.  As we have reported previously, federally-financed infrastructure has also been a stated area of focus for the Trump administration, although the Administration's "Legislative Outline for Rebuilding Infrastructure in America" released last year curiously lacked any domestic preference requirements.

The new executive order makes up for this previous omission and then some:  it has the potential to affect a vast number of programs and projects, and may in fact impose domestic sourcing requirements in areas—such as internet infrastructure—that are not typically targets for domestic preferences.

Statutory Background

The President's new executive order plays out against a background of two different regulatory regimes for construction.  First, the federal Buy American Act (or "BAA") applies to manufactured articles, materials, and supplies that are used in the construction of a federal building or federal work.  By its terms, the BAA does not apply to state or local construction that receives federal funds.

However, other federal laws (frequently referred to by the confusingly similar name of "Buy America" laws) provide for domestic preferences for certain types of construction projects that receive federal funding.  For example, the Surface Transportation Assistance Act of 1982, which governs the financing of highway and mass transit projects, includes several "Buy America" provisions that generally require the use of "steel, iron, and manufactured products ...受某些放弃权限约束。 23U.S.C§313(a)(高速公路项目)49 U.S.C.§ 5323(j) (mass transit projects).

Format of the Executive Order

The Trump Administration's new executive order is targeted at a third category: federal programs that provide financial assistance (e.g., grants, loans, cooperative agreements, etc.) to infrastructure projects, but do not currently include domestic preference requirements.  More specifically, the order applies to "covered programs," which are defined as "any program for which a focus of the statutory authorities under which it is administered is the award of Federal financial assistance for the alteration, construction, conversion, demolition, extension, improvement, maintenance, reconstruction, rehabilitation, or repair of an infrastructure project in the United States," but not including:

  • programs for which providing a domestic preference is inconsistent with law; or
  • programs providing Federal financial assistance that are subject to comparable domestic preferences.

The emphasis on domestic preference is accomplished by requiring the agencies that administer "covered programs" to "encourage recipients of new Federal financial assistance awards" to use certain products that are "produced in the United States" to the greatest extent possible.(emphasis added).

Agencies are required to begin "encouraging" the use of these products within 90 days of the date of the order (i.e., by May 1, 2019).  In addition, those agencies are required to identify, beyond encouragement, their strategy for maximizing the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in a report to be delivered to the President within 120 days of the issuance of the order (i.e., by May 31, 2019).

Importantly, the agency's report must identify "whether [the] covered programs within the agency['s] jurisdiction would support" the imposition of a "requirement" to use "iron and aluminum as well as steel, cement, and other manufactured products produced in the United States" through the use of terms and conditions on new financial assistance awards.  Thus, while the first effect of the order is to "encourage" the use of domestically-produced construction materials, the intended long-term effect is to generate new terms and conditions of grant and loan awards requiring the use of these materials.

Questions for Contractors

This new executive order raises several potentially thorny questions for members of the contracting community and other stakeholders.

What Projects Are Covered?

The order is aimed at federal assistance programs supporting "infrastructure projects" that currently are not subject to "comparable" domestic preferences, a category that could encompass a vast array of projects.  The term "infrastructure projects" is broadly defined in the order to include any project to provide or support services to the general public in the following sectors:

  • surface transportation, including roadways, bridges, railroads, and transit;
  • aviation;
  • ports, including navigational channels;
  • water resources projects;
  • energy production, generation, and storage, including from fossil-fuels, renewable, nuclear, and hydroelectric sources;
  • electricity transmission;
  • gas, oil, and propane storage and transmission;
  • electric, oil, natural gas, and propane distribution systems;
  • broadband internet;
  • pipelines;
  • stormwater and sewer infrastructure;
  • drinking water infrastructure;
  • cybersecurity;
  • and any other sector designated through a notice published in the Federal Register by the Federal Permitting Improvement Steering Council.

From this list, it appears that any number of federal programs could be affected by the order's domestic preference requirements.  To take just one example, several federal programs allow financial support for the provision of broadband internet to underserved or rural areas—these programs may soon be subject to domestic preference requirements.

What Does It Mean to Be "Produced in the United States"?

In addition to applying to a wide variety of projects, the executive order also applies to a potentially broad array of products that must be "produced in the United States."  The order applies to iron and aluminum, steel, cement, and other "manufactured products."  And the order defines "manufactured products" to include "items and construction materials composed in whole or in part of non-ferrous metals such as aluminum!塑料和聚合物产品,如聚氯管聚合物如混凝土玻璃,包括光纤and lumber."

But despite the broad array of products within the scope of its coverage, the order defines the term "produced in the United States" only with respect to iron and steel.  Left unaddressed is how the government will determine whether the remaining covered products are "produced in the United States."  For instance, the order does not attempt to explain what is required for, say, fiber-optic cable or polymer-based products, to be considered to be "produced in the United States."  Absent some clarification, this ambiguity may result in considerable uncertainty at the implementation stage.

How Will New Domestic Preferences Be Imposed?

The order clearly contemplates that future financial assistance awards for "covered programs" will incorporate domestic preferences for "iron and aluminum as well as steel, cement, and other manufactured products."  The order is unclear, however, how the Administration believes it can impose such preferences.  The order is directed at Executive Branch agencies with no mention of Congress, but it is Congress that has created current domestic preferences for assistance programs in construction, such as the Surface Transportation Assistance Act.  This could set up another battle over the power of the Executive Branch to "legislate."

Alternatively, it is possible that the Administration intends for the executive order to be implemented on a purely contractual basis "through terms and conditions on new federal financial assistance awards."  Yet in that case, the metes and bounds of any domestic preference requirements would be determined entirely by the negotiations of the parties to any financial assistance agreement.  Of course, absent some underlying statutory or regulatory authority, that approach could engender substantial inconsistency and uncertainty.

Conclusion

The new Executive Order could lead to considerable constraints on all types of contractors.从表面上看,它应用到各种各样的项目和范围可能更广的产品-其中一些对强制实施国内偏向是新事物-然而,命令还提出了若干重要问题,无疑将影响任何新国内偏向要求的范围和性质。 使用联邦财政援助的行业的利益有关者将完全建议随着政府在未来数月开始执行最新订单时密切监视这一领域的动态。

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