[Federal Register Volume 91, Number 29 (Thursday, February 12, 2026)]
[Notices]
[Pages 6721-6723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-02825]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2025-0070]
Notice of Proposed Modification of the Waiver of Buy America
Requirements for Electric Vehicle Chargers
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT)
ACTION: Notice; request for comments
-----------------------------------------------------------------------
SUMMARY: The Federal Highway Administration (FHWA) is seeking comments
on its February 21, 2023 Waiver of Buy America Requirements for
Electric Vehicle (EV) Chargers. FHWA is specifically seeking comment on
whether it should modify the waiver to increase the cost threshold of
components manufactured in the United States for EV Chargers used in
Federal-aid highway projects from 55 percent to up to 100 percent of
the cost of all components. Following review and consideration of
comments, FHWA will determine whether it should continue the waiver,
modify the waiver, or discontinue the waiver.
DATES: Comments must be received by March 16, 2026.
ADDRESSES: Please submit your comments to the Federal eRulemaking
Portal at www.regulations.gov, Docket: FHWA-2025-0070, and follow the
online instructions for submitting comments.
Instructions: You must include the agency name and docket number at
the beginning of your comments. Except as described below under the
heading ``Confidential Business Information,'' all submissions
received, including any personal information provided, will be posted
without change or alteration to http://www.regulations.gov. For more
information, you may review the U.S. Department of Transportation's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477).
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Robert Mooney, FHWA Office of Infrastructure, 202-366-
2221, or via email at [email protected]. For legal questions,
please contact Michael Harkins, FHWA Office of the Chief Counsel, 202-
366-1523, or via email at [email protected]. Office hours for
FHWA are from 8:00 a.m. to 4:30 p.m., E.T., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
[[Page 6722]]
Electronic Access and Filing
A copy of this notice, all comments received on this notice, and
all background material may be viewed online at www.regulations.gov
using the docket number listed above. Electronic retrieval help and
guidelines are also available at www.regulations.gov. An electronic
copy of this document also may be downloaded from the Office of the
Federal Register's website at: www.FederalRegister.gov and the U.S.
Government Publishing Office's website at: www.GovInfo.gov.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this notice contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this notice, it is important that you
clearly designate the submitted comments as CBI. You may ask FHWA to
give confidential treatment to information you give to the Agency by
taking the following steps: (1) Mark each page of the original document
submission containing CBI as ``Confidential;'' (2) send FHWA, along
with the original document, a second copy of the original document with
the CBI deleted; and (3) explain why the information you are submitting
is CBI. Unless you are notified otherwise, FHWA will treat such marked
submissions as confidential under FOIA, and they will not be placed in
the public docket of this Request for Information (RFI). Submissions
containing CBI should be sent to: Mr. Robert Mooney, FHWA, 1200 New
Jersey Avenue SE, HICP-20, Washington, DC 20590. Any comment
submissions that FHWA receives that are not specifically designated as
CBI will be placed in the public docket for this matter.
Background
On November 24, 2021, FHWA published a Request for Information
(RFI) to determine the state of the existing and future domestic
manufacturing capacity of EV Chargers. Based on the information
received in response to the November 24, 2021 RFI, FHWA issued a notice
of a proposed waiver of Buy America requirements for EV chargers on
August 31, 2022, at 87 FR 53539 (``Proposed Waiver''), requesting
comments on the conditions of a proposed waiver for EV Chargers. After
reviewing the comments received, on February 21, 2023, FHWA established
a final EV Charger waiver for EV charging equipment through a temporary
public interest waiver of Buy America requirements for steel, iron, and
manufactured products, in EV chargers under 23 U.S.C. 313 and for
construction materials under section 70914 of the Infrastructure
Investment and Jobs Act (IIJA) (Pub. L. 117-58), at 88 FR 10619
(``Final Waiver'').
The Final Waiver became effective on March 23, 2023 (the effective
date) and applied to all EV chargers manufactured before July 1, 2024
whose final assembly occurred in the United States and whose
installation was begun by October 1, 2024 (``the Final Assembly
Phase''). As for EV chargers manufactured on or after July 1, 2024, the
Final Waiver applies to all such whose final assembly occurs in the
United States and for which the cost of components manufactured in the
United States is at least 55 percent of the cost of all components
(``the 55 percent phase''). Further, under the Final Waiver, if an EV
charger's housing is predominantly iron or steel, such housing is not
covered by the Final Waiver at any time; instead, such housing must
comply with FHWA's existing Buy America requirements for iron and
steel. In the Final Waiver, FHWA reserved the right to modify the
waiver in the event FHWA determines that the terms of the waiver are no
longer in the public interest (see 88 FR 10634). FHWA published another
RFI on November 28, 2023, at 88 FR 77140, requesting additional
information on the domestic EV Charging capacity in the United States.
A summary of the comments received in response to that RFI is included
in the docket.
Subsequently, on January 14, 2025, FHWA published a final rule (90
FR 2932) establishing Buy America requirements for all manufactured
products used in the Federal-aid highway program. Under this rule, for
projects obligated on or after October 1, 2025, all such manufactured
products must be manufactured in the United States (i.e., final
assembly) and, for projects obligated on or after October 1, 2026, the
total cost of all components mined, produced, or manufactured in the
United States of all manufactured products used in the project must
also comprise at least 55 percent. FHWA explained in the preamble of
this final rule that the EV Charger waiver would continue to apply to
EV Chargers instead of the generally applicable Buy America
requirements for manufactured products (90 FR 2943).
On April 18, 2017, President Trump issued Executive Order (E.O.)
13788 requiring every Executive Branch agency to monitor, enforce, and
comply with existing ``Buy American Laws'' and minimize the use of
waivers. In addition, E.O. 13788 set forth a policy ``to maximize,
consistent with law, . . . the use of goods, products, and materials
produced in the United States.'' E.O. 13788 was superseded by E.O.
14005, which was issued on January 25, 2021. E.O. 14005 establishes the
policy of the Federal Government that agencies should, when consistent
with applicable law, use terms and conditions in Federal financial
assistance awards and Federal procurements to maximize the use of
goods, products, and materials produced in, and services offered in,
the United States. President Trump continues to believe that Buy
American remains the epitome of common-sense public policy for the use
of Federal taxpayer funds (see, e.g., April 3, 2025, Report to the
President on the America First Trade Policy Executive Summary \1\).
---------------------------------------------------------------------------
\1\ https://www.whitehouse.gov/fact-sheets/2025/04/report-to-the-president-on-the-america-first-trade-policy-executive-summary/.
---------------------------------------------------------------------------
In reviewing the comments received in response to the Proposed
Waiver, which are summarized in the Final Waiver, we are currently
well-beyond the timeframe industry predicted would be needed to ramp-up
capacity and domestically manufacture EV Chargers. The supply chain
variability of 2023 levels, as articulated by commenters, has leveled
off. Comments received from manufacturers in response to the November
28, 2023 RFI suggested that manufacturers have capabilities to
manufacture EV Chargers wholly within their facilities located within
the United States. In addition, FHWA believes there is a Federal
interest in having domestically manufactured EV chargers maximize the
use of domestically sourced and produced components due to national
security concerns associated with dependency on foreign-produced
electronic components, and FHWA seeks comment on this issue as well.
On November 15, 2021, the Build America Buy America Act (BABA) was
enacted as title IX of the Infrastructure Investment and Jobs Act
(IIJA) (Pub. L. 117-58, div. G Sec. Sec. 70901-27). BABA requires
Federal agencies periodically to review existing general applicability
waivers of Buy America requirements by publishing in the Federal
Register a notice that: (i) describes the justification for a general
applicability waiver; and (ii) requests public comments for a
[[Page 6723]]
period of not less than 30 days on the continued need for the general
applicability waiver. BABA Sec. 70914(d).
For all of the above reasons, and in accordance with the
President's priority to maximize the domestic content of products
purchased with Federal taxpayer funds, FHWA is seeking comments on
modifying the Final Waiver applicable to EV Chargers. Under the
proposed modification, all such EV chargers would have to undergo final
assembly in the United States, and the domestic content requirement
that the cost of all components of an EV Charger that are purchased or
installed with funds made available or administered by FHWA would be
raised from 55 percent to up to 100 percent of the cost of components
of the EV Charger. FHWA is specifically seeking comments on the higher
level at which this domestic content threshold should be set along with
supporting information.
If finalized, this proposed modification of the February 21, 2023
waiver would be immediately applicable to projects for EV Charger
acquisition or installation that are obligated after publication of a
final notice.
This proposal is designed to provide a strong incentive for
manufacturers to shift more rapidly toward domestic manufacturing
processes. FHWA believes this approach will be effective in fulfilling
President Trump's strong commitment to help American businesses and
workers compete and thrive in the global marketplace.
Comment Period for Proposed Modification of Waiver
Obtaining information through this notice and request for comment
is consistent with the BABA section 70914(d) requirement to review
waivers of general applicability periodically and will help FHWA
determine the current state of domestic production of EV chargers and
identify national security concerns associated with the use of non-U.S.
components. Following the initial notice and review of comments
received, FHWA will publish in the Federal Register a determination on
whether to continue, modify, or discontinue the general applicability
waiver.
FHWA will consider comments received in the 30-day comment period
during our evaluation of the waiver request. Comments received after
this period, but before notice of our finding is published in the
Federal Register, may be considered to the extent practicable. Section
117 of the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-
244, 122 Stat. 1572) requires an additional 5-day, comment period after
FHWA publishes a waiver finding notice. Comments received during that
period will be reviewed, but the finding will continue to remain valid.
Those comments may influence FHWA's decision to terminate or modify a
finding as well as other potential administrative actions, such as
regulatory modifications.
Issued in Washington, DC, under authority delegated in 49 CFR
1.85.
Sean McMaster,
Administrator, Federal Highway Administration.
[FR Doc. 2026-02825 Filed 2-11-26; 8:45 am]
BILLING CODE 4910-22-P