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.
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:
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.
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.
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。 见 23U.S.C§313(a)(高速公路项目)49 U.S.C.§ 5323(j) (mass transit projects).
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:
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.
This new executive order raises several potentially thorny questions for members of the contracting community and other stakeholders.
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:
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.
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.
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.
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。