On February 21, 2023, the Federal Highway Administration (“FHWA”) published a Notice of Waiver for Buy America requirements related to Electric Vehicle (“EV”) Chargers, 88 Fed. Reg. 10619.  This waiver notice follows the Notice of Proposed Waiver published by FHWA on August 31, 2022.  See 87 Fed. Reg. 53539.  In response to a robust response from industry, the final waiver is narrower and more streamlined than the proposed waiver, bringing the number of phases from four to two, and simplifying the definition of an EV charger.  The waiver applies starting March 23, 2023.

The Build America, Buy America (“BABA”) provisions of the Infrastructure Investment and Jobs Act (“IIJA”) require recipients of federal funding for infrastructure to use domestic steel, iron, manufactured products, and construction materials in their projects, to the extent that a domestic preference does not already apply.  Pub. L. 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.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.