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The Bipartisan Infrastructure Law (BIL) establishes requirements for U.S. government procurement and assistance to support American manufacturing under the Build America Buy America (BABA) Act. Under BABA, manufactured products must be “produced in the United States,” meaning products must be manufactured in the United States, and the cost of the components mined, produced, or manufactured in the United States must be greater than 55 percent of the total cost of all components of the manufactured product. Exceptions to these requirements are allowable under certain conditions. As part of the waiver process, agencies must submit proposed waivers along with justification to the Made in America Office for review.
The new Clean Ports Program is seeking a Public Interest General Applicability Waiver of BABA Act provisions because market analysis shows that there is a limited number of manufacturers and supply of mobile port equipment that would meet the BABA Act criteria.
EPA is seeking comment on a proposed limited public interest waiver for certain zero-emission (battery electric and hydrogen fuel cell) mobile port equipment (e.g., cranes, drayage trucks, yard trucks, other cargo handling equipment, locomotives, and vessels) to be funded in the $3 billion Clean Ports Program. Industry input and interagency research indicates that certain zero-emission mobile port equipment eligible under the Clean Ports Program may not meet the BABA requirements for manufactured products. Specifically, EPA is proposing:
- To waive the 55% domestic content requirement for zero emissions mobile port equipment. Only the final assembly of zero emissions mobile port equipment must occur in the United States to be considered “produced in the United States” during the waiver period.
- A supplemental de minimis waiver, waiving all aspects of BABA compliance for ten percent of material costs attributable to zero emissions mobile port equipment, that may be used for recipients of the Clean Ports Program only on zero emissions mobile port equipment.
As further detailed in the draft waiver, EPA would appreciate data-supported comments that will help inform the following:
- Near-term volume of (# units) or capacity to produce (# units / unit time) BABA-compliant zero emission port equipment that could be purchased and delivered during the Clean Ports Program period of performance (i.e., January 2025 through December 2028).
- If the equipment is not BABA-compliant today, please explain why and indicate whether final assembly occurs in the United States.
- Please indicate whether domestic production capacity is real (i.e., operational) or planned (i.e., not yet operational), and when planned capacity is projected to come online and reach full capacity utilization / complete production ramp-up.
You can view the proposed waiver on EPA’s BABA Waivers webpage.
We welcome your comments and feedback on this proposed approach. As part of the waiver process, the EPA is opening a 21 day comment period on the proposed waiver. Please submit comments on the waiver by email to BABA-OTAQ@epa.gov using the subject line “Comment on Proposed Waiver of BABA Requirements for Clean Ports Program.” Please note that any comment you submit in response to this waiver request will be treated separately from any materials that you submit as part of an application for Clean Ports Program funding. The EPA would appreciate feedback as soon as possible and no later than the close of the comment period on Monday, April 15, 2024 at 11:59 PM (ET).
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