U.S. Department of Transportation Finalizes EV Charging Infrastructure Rules

Effective as of March 30, 2023, the Federal Highway Administration (“FHWA”) within the U.S. Department of Transportation (“DOT”) announced the National Electric Vehicle Infrastructure Standards and Requirements final rule  (the “Final Rule”) (23 CFR 680).  The Final Rule included several significant updates to the Notice of Proposed Rulemaking published on June 9, 2022 which we summarized in our prior article. These updates function to establish a set of minimum standards and requirements for electric vehicle (“EV”) charging infrastructure projects funded with federal dollars from the Bipartisan Infrastructure Law (“BIL”), and with these updates in place, interested parties will have certainty with respect to NEVI-funded projects.¹

The key updates included in the Final Rule are located in the following sections:

1. Installation, operation, and maintenance by qualified technicians of EV infrastructure (§ 680.106)
2. Interoperability of EV charging infrastructure (§ 680.108)
3. Data requested related to a project funded under the NEVI Formula Program, including the format and schedule for the submission of such data (§ 680.112)
4. Network connectivity of EV charging infrastructure (§ 680.114)
5. Information on publicly available EV charging infrastructure locations, pricing, real-time availability, and accessibility though mapping applications. (§ 680.116)

Installation and Operation

The Final Rule contains modified language clarifying that any time charging stations are installed, there must be a minimum of four (4) ports, notwithstanding the type of port–including Direct Current Fast Charger (“DCFC”) and AC Level 2 chargers. Additionally, charging stations may also have non-proprietary connectors. This modification allows permanently attached non-proprietary connectors to be provided on each charging port so long as each DCFC charging ports have at least one permanently attached CCS type 1 connector and is capable of charging a CCS compliant vehicle.  These modifications will allow for increased accessibility to owners of all types of electric vehicles.

Concerned commenters expressed distain toward the Notice of Proposed Rulemaking for lack of clarity on whether the Final Rule would apply to the NEVI formula program, Title 23, and publicly accessible EV chargers funded as a project on a federal aid highway. The FHWA responded in the Final Rule with modified language to confirm its applicability across these programs. To address concerns about opposition to the rule as applied to Title 23 projects, the language in the Final Rule was revised to provide increased flexibility in the use of funds to install different types of chargers, including for projects not located along Alternative Fuel Corridors and installing AC Level 2 charges and DCFCs at lower power levels. Additionally, AC Level 2 charger capability was modified to incorporate the ability to charge at 208-volt.

The Final Rule also reevaluated and modified charging capacity. Modifications require that each DCFW must simultaneously deliver up to 150 kW. Additionally, each AC level 2 port is required to have the capability of providing at least 6 kW, however, the customer has the option to accept a lower power level to allow power sharing or to participate in smart charge management programs. Smart charge management involves controlling charging power levels in response to external conditions and is typically applied in situations where EVs are connected to charges for long periods of time, such that prolonging charging for the benefit of the grid is not objectionable to charging customers. In contrast, power sharing involves dynamically curtailing power levels of charging ports based on the total power demand of all EVs concurrently charging at the same station. Power sharing is permissible above the minimum per-port requirements for DCFC and AC Level 2 chargers. Further, each DCFC port must support output voltage with a permitted range between 250 and 920 volts. This all allows for greater flexibility to manage the cost of the stations designed to meet current and future demand for increases in power, given the strong market trend towards EV charging power capacity above 150 kW for DCFC and above 6 kW for AC Level 2 charging.

The Notice of Proposed Rulemaking required charging stations to remain open for 24 hours, but commenters believed this requirement did not present a realistic standard nationwide. In the Final Rule, the language was amended to allow for less restrictive charging hours for charging stations located off designated AFCs and requires that the charging station must be available for use at least as frequently as the business operating hours of the site host, with discretion to the site host to allow longer access.

Payment and Price Transparency

Payment and Price Transparency received both modification and expansion under the Final Rule. State programs may allow for certain charging stations to be free, and as such, language in the Final Rule was modified to specify that payment mechanisms may be omitted from charging stations if charging is provided for free. Regarding acceptable payment methods, the Final Rule explicitly incorporated payment by mobile application in the “contactless payment methods” definition. Further, the Final Rule modified acceptable payment methods to include an automated toll-free calling or an SMS option as an additional payment method. While there is no guarantee that every individual will have access or the ability to speak on the phone or send a text, the FHWA sees this addition as a step in the right direction to help bridge the accessibility gap in access and payment for EV charging. 

The Final Rule also altered price transparency to require that the dollar per kWh be transparently communicated prior to initiating a charge, and that other fees be clearly explained prior to payment.

Charging Station Information, Data Sharing, and Interoperability of EV Charging Infrastructure

The Final Rule also modified uptime requirements. The uptimes calculations were clarified by modifying the definition of when a charger is considered “up” and further modifying the equation to calculate uptime to the nearest minute to make the calculation more uniform across all charging station operators and network providers.

Open Charge Point Protocol (“OCPP”) and ISO 15118 are key components of interoperability. OCPP is an open source communication standard for EV charging stations and networks, and ISO 15118 is hardware that specifies the communication between EVs including Battery Electric Vehicles and Plug-In Hybrid Electric Vehicles, and the Electric Vehicle Supply Equipment. In the Final Rule, the FHWA discussed that OCPP version 2.01 has significant improvements over previous versions and contains compelling benefits to the EV charging ecosystem. As such, the Final Rule contains modifications regarding the charger-to-charger network requiring that charging networks conform to the newer OCPP version 2.01 by one year after the date of publication of the Final Rule in the Federal Register. Additionally, FHWA requires charging station conformance to ISO 15118 and Plug and Charge capability by one year after the date of publication of the Final Rule in the Federal Register. Although many chargers on the market today are not yet using ISO 15118, the FHWA sees value in establishing a national standard for compliance. .

Annual data submittal, quarterly, and one time submittal requirements were modified to be completely streamlined and requiring any data made public to be aggregated and anonymized to protect confidential business information. The Joint Office of Energy and Transportation will establish and manage a national database and analytics platform that will streamline submission of data from States and their contractors along with providing ongoing technical assistance to States.

The Final Rule removed interoperability requirements and instead requires that chargers remain functional even if communication with the charging network is temporarily disrupted.

Community Engagement

For NEVI formula program projects, community engagement outcomes were modified in the Final Rule to require inclusion in the annual state EV infrastructure deployment plan rather than a separate report. This will allow for the type of information and data from the States to be most beneficial for informing and improving community engagement. Though we will have to wait until release of the annual Plan guidance to receive details regarding content expectations, commenters suggested several ways the report could be developed, including (i) conditioning funding for future years on meeting robust engagement requirements, including community engagement and equity and inclusion efforts by States (ii) describing how community engagement informed station and siting operations (iii) describing how workforce opportunities were integrated into community engagement efforts; and (iv) describing engagement with disabled community members.

The Future of EV Infrastructure

We will quickly see the significant effects the Final Rule will have on customers and manufacturers alike in enhancing EV charging capacity across the United States in this rapidly changing and ever-growing sector. As regulators, developers, and financiers of EV infrastructure evaluate the Final Rule, the Foley team is at the ready with significant experience, knowledge and expertise related to each element of this transformation, including issues related to the automotive, manufacturing, supply chain, regulatory, IP, private equity, tax equity, project finance, and public-private financing issues.