The American Association of Port Authorities (AAPA) recently commented in favor of the EPA’s Proposed Waiver from Build America, Buy America (BABA) rules for the $3 billion Clean Ports Program. EPA published its proposed waiver in March and gave stakeholders three weeks to comment. EPA announced its intent to publish the waiver on the same day it published the Notices of Funding Opportunity (NOFOs), on February 28th. In the NOFOs, EPA announced that mobile equipment would be subject to BABA rules, a departure from previous EPA policy.

"America's ports and their partners have $50 billion of green energy projects in various lifecycle stages, and EPA's Clean Ports Program recognizes that ports are big movers and users of energy," stated Cary Davis, AAPA President and CEO. "The new program is a big leap forward, but ports need flexibility from stringent equipment procurement rules as outlined in our comment to EPA's waiver. We strongly urge the Biden Administration to grant EPA's waiver quickly to give our ports the time and clarity needed to submit their best possible grant applications."'

In short, the proposed waiver would require all equipment purchased through the program to be finally assembled in America, even if all components were manufactured abroad. The proposed waiver would also give grantees a “de minimus” waiver to allow 10% of mobile equipment to be purchased from abroad. EPA is considering whether to require all iron and steel in mobile equipment to be produced in America.

AAPA commented in favor of the domestic final equipment assembly, in favor of the 10% de minimus waiver, and in opposition to the requirement that iron and steel be sourced from domestic producers.

AAPA also sought clarification on the definition of “final assembly.” Manufacturers are unlikely to set up domestic plants to assemble equipment for a one-time grant program, so EPA should be flexible in its definition of “final assembly” to allow manufacturers to expeditiously deliver equipment.

EPA has also updated its Questions and Answers document with new information in response to AAPA requests. Notably, EPA clarified that port authorities do not need to competitively bid among their terminal operators when choosing a partner on grant applications. Port authorities also do not need to competitively bid for grant writers, engineering firms, and other consultants they have on retainer, provided the vendor was chosen originally through a competitive process.