U.S. Department of Transportation Federal Highway Administration Issues Notice of Proposed Rulemaking Setting Minimum Standards for Projects Funded Under the National Electric Vehicle Infrastructure Program

The National Electric Vehicle Infrastructure (NEVI) Formula Program ($5 billion) was enacted under the Infrastructure Investment and Jobs Act (IIJA), also known as the Bipartisan Infrastructure Law (BIL).¹ On June 9, 2022, the U.S. Department of Transportation’s (USDOT) Federal Highway Administration (FHWA) announced a Notice of Proposed Rulemaking setting minimum standards for State programs funding projects under the NEVI Formula Program and all projects that install electric vehicle (EV) charging infrastructure under title 23 of the United States Code.² Each State must file an EV Infrastructure Deployment Plan implementing these minimum standards by August 1, 2022. FHWA will approve eligible plans by September 30, 2022 and allocate funds to States for fiscal years 2022 through 2026.

The deadline for comments on the proposed minimum standards is August 22, 2022. The final regulations could have significant implications for electric vehicle supply equipment (EVSE) manufacturers, as well as would-be developers, owners, or operators of EV charging stations or networks.

Overview

NEVI Formula Program funds must be used to deploy EV charging infrastructure along Alternative Fuel Corridors until FHWA certifies that they are fully built out, meaning that the State’s corridors have publicly available EV charging sites deployed every fifty miles and within one mile of the interstate, and that the sites have at least four Direct Current Fast Charger (DCFC) Combined Charging System (CCS) ports capable of charging four EVs simultaneously at 150 kW each. Once FHWA certifies that the State’s Alternative Fuel Corridors are fully built out, the State may use NEVI Formula Program funds for EV charging infrastructure on any public road or publicly accessible location. The program is a cost-sharing program, with NEVI Formula Program funds covering 80 percent of a project and State or private funds covering the remainder. States need not own the installed EV charging infrastructure, and FHWA anticipates that States will contract with private entities to install, operate, and maintain the EV charging infrastructure.

To implement the NEVI Formula Program, FHWA is required to establish minimum standards and requirements related to:

(1) the installation, operation, or maintenance by qualified technicians of electric vehicle charging infrastructure under this paragraph in this Act; (2) the interoperability of electric vehicle charging infrastructure under this paragraph in this Act; (3) any traffic control device or on-premises sign acquired, installed, or operated under this paragraph in this Act; (4) any data requested by the Secretary related to a project funded under this paragraph in this Act, including the format and schedule for the submission of such data; (5) network connectivity of electric vehicle charging infrastructure; and (6) information on publicly available electric vehicle charging infrastructure locations, pricing, real-time availability, and accessibility through mapping applications . . . .

Installation, Operation, and Maintenance by Qualified Technicians of Electric Vehicle Charging Infrastructure³

State agencies would be required to make identification of project awardees, proposed contracts, and a summary of contract payments, including price and cost data available for public review, as well as information describing how prices for EV charging are to be set. 

Charging stations would be required to have at least four DCFC CCS ports capable of providing 150 kW from each charging port simultaneously.⁴ In addition to the required DCFC ports, charging stations may have AC Level 2 J1772 ports capable of providing at least 6 kW per port simultaneously across all AC ports. Charging stations would be required to be available and accessible to the public 24 hours per day, 7 days per week, year-round. 

Charging stations would be required to provide for secure payment methods and must, at a minimum, include a contactless payment method that accepts major debit and credit cards and Plug and Charge payment capabilities using the ISO 15118 standard, and provide multilingual access and access to persons with disabilities. A membership must not be required for use.

States would be required to implement physical and cybersecurity strategies in their EV Infrastructure Deployment Plans. However, the proposed regulation does not mandate the physical and cybersecurity strategies to be implemented. Charging station operators would be required to take “reasonable measures” to safeguard consumer data and collect only the personal information necessary to provide charging service and to complete the transaction, although the data security standards or best practices are not specified.

States would be required to ensure that EVSE is maintained in compliance with NEVI standards for at least five years and ensure that EV charging customers have a mechanism to report outages, malfunctions, and other issues.

States would be required to ensure that the workforce installing, maintaining, and operating EVSE have appropriate licenses, certifications, and training. In particular, electricians working on EVSE would be required to be certified through the Electric Vehicle Infrastructure Training Program or otherwise have EVSE-specific training.

Interoperability of Electric Vehicle Charging Infrastructure⁵

Chargers would be required to conform to ISO 15118 for charger-to-EV communication. The ISO 15118 communications protocol would enable a charger to provide vehicle-to-grid services. It also includes the Pug and Charge feature, which enables a driver to use the EVSE and be authorized to receive energy to recharge an EV without using a credit card, using an app, or tapping an RFID card.

Traffic Control Devices or On-Premises Signs Acquired, Installed or Operated⁶

Charging stations would be required to comply with 23 CFR part 655, which governs traffic control devices and traffic signs, and 23 CFR part 750, which governs sign placement, height, size, and lighting.

Data Submittal⁷

States would have quarterly data submission requirements that would require charging station operators to report very detailed information about the stations. The data collected would include charging station uptime, the cost of electricity to operate, and maintenance and repair cost. Operators would have data reporting obligations—by port and by session—including charging session start time, end time, successful completion (yes or no), energy (kWh) dispensed, and peak session power (kW) by port.

Charging Network Connectivity of Electric Vehicle Charging Infrastructure⁸

EVSE would be required to communicate with a charging network via a secure communication method and have the ability to receive and implement remote software updates; support remote monitoring, diagnostics, control, and smart charge management; and report energy and power dispensed, real-time charging-port status, real-time price, and historical charging-port uptime. EVSE would be required to be capable of using Open Charge Point Protocol and be designed to securely switch charging network providers without hardware changes.

Charging networks would be required to be capable of communicating with other networks to enable a driver to use a single credential to charge. Charging networks must also be capable of secure communications with electric utilities, energy providers, or energy management systems.

Information on Publicly Available Electric Vehicle Charging Infrastructure Locations, Pricing, Real-Time Availability, and Accessibility Through Mapping Applications⁹

Chargers and the charging network would be required to disclose the real-time price in $/kWh, which may not change during a session, and clearly explain any other fees in addition to the price to charge.

Charging ports would be required to have an average uptime of greater than 97 percent.

States would be required to ensure that charging station data be made available to third-party software developers free of charge, including the charging station address and GPS coordinates; the charging station operator contact information; the charging station’s network provider; the number of ports, connector types, and maximum power level; whether power sharing between EVSEs is enabled, the charging station’s commissioning date; pricing structure; vehicle size restrictions; payment methods; the number of ports accessible to persons with disabilities; and the real-time status of each port and price updated at a frequency that “meets reasonable customer expectations.”

Summary

The FHWA is seeking comments on the proposed regulations, which will in turn affect the EV Infrastructure Deployment Plans being developed by the States. Thus, interested EVSE manufacturers, as well as would-be developers, owners, or operators of EV charging stations or networks should monitor and provide input at both the federal and state levels as these regulatory developments will affect the viability of the business opportunities that may arise from the NEVI Formula Program. There are, of course, other rules applicable to federal-aid highways funding, such as Buy America requirements, and state laws that would also affect such opportunities. The Womble Bond Dickinson Mobility and Transportation Technology team, led by Jesse Reyes and Lisa Rushton, can help to provide advice in pursuing and maximizing NEVI Formula Program funding.

Footnotes

¹ Pub. L. 117-58, division J, tit. VIII, para. (2) (Nov. 15, 2021). This legislation also created a $2.5 billion discretionary grant program to support EV charging infrastructure and alternative fueling deployment along alternative fuel corridors and in communities, and also made installation of EV charging infrastructure an eligible expense under the USDOT Surface Transportation Block Grant formula program.
² 87 Fed. Reg. 37262 (June 22, 2022).
³ 23 CFR § 680.106.
⁴ The proposed regulation provides that charging stations using FY2022 funds may include one or more CHAdeMO ports, but it is unclear whether the provision is intended to permit CHAdeMO ports “in addition to” four CCS ports, or “instead of” them.
⁵ 23 CFR § 680.108.
⁶ 23 CFR § 680.110.
⁷ 23 CFR § 680.112.
⁸ 23 CFR § 680.114.
⁹ 23 CFR § 680.116.