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.

Tags: Bipartisan Infrastructure Law, Buy America, electric vehicles, Federal Highway Administration, IIJA
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Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

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Photo of Jennifer Bentley Jennifer Bentley

Jennifer Bentley is an associate in the Government Contracts Practice Group. Her practice is focused on litigation, investigations, and regulatory counseling across a range of government contracts matters. She has particular expertise in domestic sourcing issues, including the Buy American Act, Trade Agreements…

Jennifer Bentley is an associate in the Government Contracts Practice Group. Her practice is focused on litigation, investigations, and regulatory counseling across a range of government contracts matters. She has particular expertise in domestic sourcing issues, including the Buy American Act, Trade Agreements Act, and Build America, Buy America. She also maintains an active pro bono practice.

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