[Federal Register Volume 88, Number 39 (Tuesday, February 28, 2023)]
[Rules and Regulations]
[Pages 12724-12757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03500]
[[Page 12723]]
Vol. 88
Tuesday,
No. 39
February 28, 2023
Part II
Department of Transportation
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Federal Highway Administration
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23 CFR Part 680
National Electric Vehicle Infrastructure Standards and Requirements;
Final Rule
Federal Register / Vol. 88, No. 39 / Tuesday, February 28, 2023 /
Rules and Regulations
[[Page 12724]]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 680
[FHWA Docket No. FHWA-2022-0008]
RIN 2125-AG10
National Electric Vehicle Infrastructure Standards and
Requirements
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule establishes regulations setting minimum
standards and requirements for projects funded under the National
Electric Vehicle Infrastructure (NEVI) Formula Program and projects for
the construction of publicly accessible electric vehicle (EV) chargers
under certain statutory authorities, including any EV charging
infrastructure project funded with Federal funds that is treated as a
project on a Federal-aid highway. The standards and requirements apply
to the installation, operation, or maintenance of EV charging
infrastructure; the interoperability of EV charging infrastructure;
traffic control device or on-premises signage acquired, installed, or
operated in concert with EV charging infrastructure; data, including
the format and schedule for the submission of such data; network
connectivity of EV charging infrastructure; and information on publicly
available EV charging infrastructure locations, pricing, real-time
availability, and accessibility through mapping applications.
DATES: This final rule is effective March 30, 2023.
FOR FURTHER INFORMATION CONTACT: Mr. Gary Jensen, Office of Natural
Environment, (202) 366-2048, or via email at [email protected], or
Ms. Dawn Horan, Office of the Chief Counsel (HCC-30), (202) 366-9615,
or via email at [email protected]. Office hours are from 8 a.m. to
4:30 p.m., E.T., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, the notice of proposed rulemaking (NPRM), all
comments received, and all background material may be viewed online at
www.regulations.gov using the docket number listed above. Electronic
retrieval help and guidelines are available on the website. It is
available 24 hours each day, 365 days each year. An electronic copy of
this document may also be downloaded from the Office of the Federal
Register's website at www.federalregister.gov and the Government
Publishing Office's website at www.GovInfo.gov.
Executive Summary
This final rule establishes regulations that set minimum standards
and requirements for projects funded under the NEVI Formula Program,
projects for the construction of publicly accessible EV chargers funded
under Title 23, United States Code (U.S.C.).\1\ This also includes any
publicly accessible EV charging infrastructure project funded with
Federal funds that is treated as a project on a Federal-aid highway.
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\1\ Refer to ``DOT Funding and Financing Programs with EV
Eligibilities'' chart on pages 10-11 in the NEVI Formula Program
Guidance, available at https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf.
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The FHWA is directed by paragraph (2) under the Highway
Infrastructure Program heading in title VIII of division J of the
Bipartisan Infrastructure Law (BIL) (enacted as the Infrastructure
Investment and Jobs Act) (Pub. L. 117-58) (Nov. 15, 2021) to create
minimum standards and requirements for NEVI-funded projects. 135 Stat.
429, 1424. Congress specified that ``funds made available under'' the
NEVI Formula Program are ``subject to the minimum standards and
requirements.'' As outlined in statute, the purpose of the NEVI Formula
Program is to ``provide funding to States to strategically deploy EV
charging infrastructure and to establish an interconnected network to
facilitate data collection, access, and reliability.'' This purpose is
satisfied by creating a convenient, affordable, reliable, and equitable
network of chargers throughout the country. Prior to the establishment
of this rule, there were no national standards for the installation,
operation, or maintenance of EV charging stations, and wide disparities
exist among EV charging stations in key components, such as operational
practices, payment methods, display of price to charge, speed and power
of chargers, and information communicated about the availability and
functioning of each charging station. The FHWA is also directed by
Section 11129 of BIL, which amends 23 U.S.C. 109, to ensure that
certain EV charging station standards apply to all projects that
install EV charging infrastructure using funds provided under Title 23,
U.S.C. This final rule does not conflict with or supersede the
implementing regulations for other Title 23, U.S.C. statutory
requirements. This final rule enables States or other designated
recipients to implement federally funded charging station projects in a
standardized fashion in order to build a convenient, accessible,
reliable, and equitable charging network across the country that can be
utilized by all EVs regardless of vehicle brand. Such standards provide
reliable expectations for travel in an EV across and throughout the
United States, regardless of which State you charge in, and support a
national workforce skilled and trained in charging station installation
and maintenance.
The BIL specifically requires minimum standards and requirements be
developed related to at least six areas:
(1) Installation, operation, and maintenance by qualified
technicians of EV infrastructure. The FHWA requires general consistency
with regard to the installation, operation, and maintenance and
technician qualifications of the NEVI Formula Program projects and
projects for the construction of publicly accessible EV chargers that
are funded under Title 23, U.S.C., including any EV charging
infrastructure project funded with Federal funds that is treated as a
project on a Federal-aid highway. In terms of standards for
installation, operation, and maintenance, charging stations are
required to contain a minimum number of ports, types of connectors,
payment methods, and requirements for customer support services. In
terms of technician qualifications, there are minimum requirements for
training, and certification standards for technicians installing,
operating, and maintaining chargers to ensure consistency around
quality installation and safety across the network. This final rule
provides the traveling public with reliable expectations for their EV
charging experience anywhere that NEVI Formula funds or Title 23,
U.S.C. funds, including Federal funds for projects that are treated as
a project on a Federal-aid highway, are used to construct EV charging
infrastructure. In addition to requirements that are customer-facing, a
series of additional requirements provide less visible, yet critical,
standardization and uniformity for how charging stations would be
installed, maintained, and operated. These types of requirements
address topics such as the certification of charging equipment,
security, long-term stewardship, the qualifications of technicians
installing and maintaining charging stations, and the privacy of
customer data conveyed. This final rule also explains what the program
income can be used for when there is net income from the sale, use,
lease, or lease renewal of real property
[[Page 12725]]
acquired, or when there is income or revenue earned from the operation
of the EV charging station.
(2) Interoperability of EV charging infrastructure. The
requirements relating to interoperability similarly address less
visible standardization along the national EV charging network. The
FHWA is working to establish a seamless national network of EV charging
infrastructure that can communicate and operate on the same software
platforms from one State to another. The FHWA establishes
interoperability requirements through this final rule for charger-to-EV
communication, charger-to-charger network communication, and charging
network-to-charging network communication to ensure that chargers are
capable of the communication necessary to perform smart charge
management and Plug and Charge.
(3) Traffic control devices and on-premise signs acquired,
installed, or operated. The Manual on Uniform Traffic Control Devices
for Streets and Highways (MUTCD) found at 23 CFR part 655 and the
Highway Beautification regulation at 23 CFR part 750 address
requirements about traffic control devices and on-premise signs.
(4) Data requested related to EV charging projects subject to this
rule, including the content and frequency of submission of such data.
The FHWA outlines data submittal requirements that are applicable under
specified circumstances. States and other designated recipients are
required to submit data to identify charging station use, reliability,
and cost information. This final rule serves an important coordination
role by standardizing submissions of large amounts of data from
charging stations across the United State while providing the Joint
Office of Energy and Transportation (Joint Office) \2\ with the data
needed to create the public EV charging database outlined in BIL.
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\2\ https://www.driveelectric.gov.
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(5) Network connectivity of EV charging infrastructure. This final
rule outlines network connectivity requirements for charger-to-charger
network communication, charging network-to-charging network
communication, and charging network-to-grid communication. These
requirements address standards meant to allow for secure remote
monitoring, diagnostics, control, and updates. These requirements will
help address cybersecurity concerns while mitigating against stranded
assets (whereby any provider abandons operations at any particular
charging station).
(6) Information on publicly available EV charging infrastructure
locations, pricing, real-time availability, and accessibility though
mapping applications. This final rule establishes requirements to
standardize the communication to consumers of price and availability of
each charging station. Specifically outlined in the final regulation,
States and other designated recipients are required to ensure that
basic charging station information (such as location, connector type,
and power level), real-time status, and real-time price to charge would
be available free of charge to third-party software developers through
application programming interface. These requirements enable effective
communication with consumers about available charging stations and help
consumers make informed decisions about trip planning and when and
where to charge their EVs. This final rule also establishes
requirements for public transparency when EV charging prices are to be
set by a third party. This will protect the public from price gouging.
This final rule applies to the 50 States, the District of Columbia,
and Puerto Rico, consistent with the definition of the term ``State''
in 23 U.S.C. 101(a). This final rule also applies to other designated
recipients of Title 23 funds and recipients of other Federal funds for
projects treated as a project on a Federal-aid highway.
The FHWA completed an analysis of this final rule, as described in
detail in the ``Regulatory Impact Analysis (RIA)'' available in the
docket. The RIA supports this final rule and estimates the costs and
benefits associated with establishing minimum standards and
requirements, derived from the costs of implementing the regulation for
each provision of the rule. All of the topics for the minimum standards
and requirements are required under Paragraph (2) under the Highway
Infrastructure Program heading in title VIII of division J of BIL. To
estimate these costs, the RIA compares the costs and benefits of
proposed provisions to the costs and benefits of the options States and
other designated recipients would likely choose for their own charger
programs in the absence of the rule. In many cases, the analysis found
that States and other designated recipients would likely choose the
same requirements that are found in this final rule.
Background
Creation of the NEVI Formula Program
The BIL included two new programs with a total of $7.5 billion in
dedicated funding to help make EV chargers and alternative fueling
facilities accessible to all Americans. As one of these two new
programs, the NEVI Formula Program provides $5 billion as the first
major Federal funding program that focuses on a nationwide development
of EV charging infrastructure. The FHWA released program guidance for
the NEVI Formula Program, available at https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf%20), as was required by BIL
within 90 days of enactment. This program guidance outlined funding
features, information about required State EV Infrastructure Deployment
Plans, project eligibility provisions, program administration, and
technical assistance and tools.
EV Funding Options
In addition to NEVI, there are other Title 23 programs that can be
used to plan for and build EV chargers; support workforce training for
new technologies; and integrate EVs as part of strategies to address
commuter, freight, and public transportation needs. For more
information see the Federal Funding is Available for Electric Vehicle
Charging Infrastructure on the National Highway System released April
22, 2022.\3\ There also may be other sources of Federal funds that are
available for EV charging infrastructure projects.
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\3\ Federal Funding is Available for Electric Vehicle Charging
Infrastructure on the National Highway System, available at https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/resources/ev_funding_report_2022.pdf.
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Statutory Authority for NEVI Formula Program Minimum Standards and
Requirements
The BIL required FHWA to release a set of minimum standards and
requirements for the implementation of the NEVI Formula Program under
Paragraph (2) under the Highway Infrastructure Program heading in title
VIII of division J. This final rule directly addresses the requirements
in BIL. This final rule also directly addresses the EV Charging
Stations standards requirement added to 23 U.S.C. 109 by Section 11129
of BIL for projects using Title 23, U.S.C. funds for EV charging
infrastructure. Through the provision of minimum standards and
requirements, this final regulation helps set reliable expectations for
the experience of EV charging across the nation.
[[Page 12726]]
Notwithstanding any other provisions of law, nothing in this final rule
is intended to be construed to prevent States and other designated
recipients from establishing more stringent EV charging infrastructure
requirements towards building a convenient, affordable, reliable, and
equitable national charging network. The BIL required establishment of
a Joint Office in the Department of Transportation and the Department
of Energy (DOE) to study, plan, coordinate, and implement issues of
joint concern between the two Agencies. The DOT and DOE coordinated on
both the NEVI Formula Program Guidance and development of the minimum
standards and requirements found in this final rule.
Need for This Final Rule
There are no other existing national standards for EV charging
stations, although there may be some State standards that exist. Prior
to the establishment of this final rule, for any given charging
station, the charger manufacturer, charging network, charging network
provider, charging station owner, charging station operator, and even
the utility providing electricity, may all have been different
entities, all with different expectations for contracts, maintenance,
operations, and customer response. Because EV charging is a relatively
new technology, there is wide diversity in the market from small start-
up companies to major multinational corporations. This diversity of
entities results in a variety of charging station operations, leaving
consumers with a learning curve every time they encounter a new EV
charging station. The consumer education required for each use of a new
charging station, unreliability of the charging station function, and
issues from the historical lack of standardized technician
qualifications each exacerbate existing hurdles for the widespread
adoption of EVs, including range anxiety and safety risks. Range
anxiety is a concept whereby consumers fear that a vehicle has
insufficient electrical charge to reach its destination or another
charging station and would therefore strand the vehicle's occupants.
This also includes the anxiety that chargers would not be available
where and when needed. Furthermore, the lack of other minimum standards
for chargers reduced the reliability of a consistent charging
experience (e.g., the charger meets their needs, is working and
available, etc.) for consumers when they encounter a new charging
station. Beyond standardizing consumer and industry expectations, this
final rule outlines minimum standards and requirements to ensure the
appropriate use of Federal funds on a new technology and market, and
greatly enhances consumer confidence and public safety.
Benefits of This Final Rule
The FHWA believes that the establishment of this final rule
provides a powerful antidote to these issues, helps create energy
independence, and encourages more widespread adoption of EVs because EV
consumers will be more confident in the availability, safety, and
consistency of EV charging stations. Accordingly, by encouraging the
adoption and expansion in use of EVs, Title 23 investments in EV
charging infrastructure have the potential to significantly address the
transportation sector's outsized contributions to climate change.
President Biden, American families, automakers, and autoworkers agree:
the future of transportation is electric. The electric vehicle future
is cleaner, more equitable, and more affordable. It provides an
economic opportunity to support good-paying, union jobs across the
installation and maintenance of the charging infrastructure as well as
in American supply chains as automakers continue investing in
manufacturing clean vehicles and the batteries that power them.\4\
Currently, the transportation sector is both the largest source of U.S.
carbon dioxide emissions,\5\ and is increasingly vulnerable because of
the higher temperatures, more frequent and intense precipitation, and
sea level rise associated with the changing climate. Much of existing
transportation infrastructure was designed and constructed without
consideration of these circumstances. The Sixth Assessment Report by
the Intergovernmental Panel on Climate Change (IPCC), released on
August 7, 2021, confirms that human activities are increasing
greenhouse gas concentrations that have warmed the atmosphere, ocean,
and land at a rate that is unprecedented in at least the last 2000
years.\6\ According to the report, global mean sea level has increased
between 1901 and 2018, and changes in extreme events such as heatwaves,
heavy precipitation, hurricanes, wildfires, and droughts have
intensified since the last assessment report in 2014.\7\ These changes
in extreme events, along with anticipated future changes in these
events because of climate change, threaten the reliability, safety and
efficiency of the transportation system. At the same time,
transportation contributes significantly to the causes of climate
change \8\ and each additional ton of CO2 produced by the
combustion of fossil fuels contributes to future warming and other
climate impacts. By encouraging widespread adoption of a zero-emissions
transportation mode, this final rule will supercharge America's efforts
to lead the electric future and align with recent Executive Orders
(E.O.) 13990, ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis,'' 86 FR 7037 (Jan. 25,
2021), E.O. 14008, ``Tackling the Climate Crisis at Home and Abroad,''
86 FR 7619 (Feb. 1, 2021), and a U.S. target of achieving a 50 to 52
percent reduction from 2005 levels of economy-wide net greenhouse gas
(GHG) pollution in 2030, on a course toward reaching net-zero emissions
economywide by no later than 2050.\9\ Section 1 of E.O. 13990
articulates
[[Page 12727]]
national policy objectives, including listening to the science,
improving public health and protecting the environment, reducing GHG
emissions, and strengthening resilience to the impacts of climate
change. E.O. 14008 recommits the United States to the Paris Agreement
and calls on the United States to begin the process of developing its
nationally determined contribution to global GHG reductions. 86 FR at
7620. E.O. 14008 also calls for a Government-wide approach to the
climate crisis and acknowledges opportunities to create well-paying,
union jobs to build a modern, sustainable infrastructure, to provide an
equitable, clean energy future, and to put the U.S. on a path to
achieve net-zero emissions, economywide, no later than 2050. 86 FR at
7622. This final rule also supports the principle set forth in section
213 of E.O. 14008 ``to ensure that Federal infrastructure investment
reduces climate pollution.'' 86 FR at 7626. Reducing the barriers to
charging infrastructure will enable the rapid expansion of zero-
emission vehicles, a central component of the U.S. Long Term Strategy
to reach net-zero greenhouse gas emissions by 2050.\10\ Enabling wider
adoption of EVs may also have significant benefits to equity and
environmental justice whereby a national network of EV charging
infrastructure reduces disparities in access to transportation
infrastructure and health effects.\11\
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\4\ White House Fact Sheet: The Biden-Harris Electric Vehicle
Charging Action Plan (December 13, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/.
\5\ See EPA Inventory of U.S. Greenhouse Gas Emissions and
Sinks, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks.
\6\ See IPCC, 2021: Summary for Policymakers. In: Climate Change
2021: The Physical Science Basis. Contribution of Working Group I to
the Sixth Assessment Report of the Intergovernmental Panel on
Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/.
\7\ IPCC, 2021: Climate Change 2021: The Physical Science Basis.
Contribution of Working Group I to the Sixth Assessment Report of
the Intergovernmental Panel on Climate Change [Masson-Delmotte, V.,
P. Zhai, A. Pirani, S.L. Connors, C. Pe[acute]an, S. Berger, N.
Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E.
Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O.
Yelek[ccedil]i, R. Yu, and B. Zhou (eds.)]. Cambridge University
Press. In Press.
\8\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A. Choate,
S. DesRoches, S. Douglass, and R. Miller, 2018: Transportation. In
Impacts, Risks, and Adaptation in the United States: Fourth National
Climate Assessment, Volume II [Reidmiller, D.R., C.W. Avery, D.R.
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research Program, Washington,
DC, USA, pp. 479-511. doi:10.7930/NCA4.2018.CH12.
\9\ White House Fact Sheet: The Biden-Harris Electric Vehicle
Charging Action Plan (December 13, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/,
White House Fact Sheet: President Biden Sets 2030 Greenhouse Gas
Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs
and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22,
2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/; White House Fact Sheet: President Biden's Leaders
Summit on Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/.
\10\ The Long-Term Strategy of the United States, Pathways to
Net-Zero Greenhouse Gas Emissions by 2050, available at https://www.whitehouse.gov/wp-content/uploads/2021/10/US-Long-Term-Strategy.pdf.
\11\ U.S. Department of Transportation Strategic Plan FY 2022-
2026.
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Another benefit of this final rule is the opportunity to advance
both equity and environmental justice for communities that have been
underserved by transportation infrastructure and overburdened by costs
and environmental harms by supporting widescale national EV adoption
and the deployment of EV charging infrastructure. See Public Law 117-
58, 135 Stat. 429, 1423 (in developing guidance concerning the NEVI
Formula Program, the Secretary of Transportation and the Secretary of
Energy shall consider ``the need for publicly available electric
vehicle charging infrastructure in rural corridors and underserved or
disadvantaged communities.''); see also E.O. 13985, ``Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government,'' 86 FR 7009 (Jan. 20, 2021); E.O. 12898, ``Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations'' 59 FR 7629 (Feb. 16, 1994). When determining where EV
charging stations should be located, there should be engagement with
rural, underserved, and disadvantaged communities, as appropriate, to
ensure that the deployment, installation, operation, and use of EV
charging infrastructure can achieve equitable and fair distribution of
benefits and services. Historically, innovations in clean energy and
transportation have not been deployed evenly across communities. This
has resulted in underserved, overburdened, and disadvantaged
communities being left behind.
Achieving the USDOT's long-term goals requires the equitable
deployment of EV infrastructure. The NEVI Formula Program funding,
along with funding for EV charging infrastructure provided through
applicable Title 23 programs, provides an opportunity to ensure these
investments remove barriers for disadvantaged communities and create
safeguards to prevent or mitigate potential harms. Consideration of the
benefits and harms is in accordance with E.O. 13985, ``Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government,'' 86 FR 7009 (Jan. 20, 2021), which requires the Federal
Government to pursue a comprehensive approach to advance racial equity
and support for underserved communities, and E.O. 14008, which created
the Justice40 Initiative, which established a goal that 40 percent of
the overall benefits of certain Federal investments flow to
disadvantaged communities, 86 FR at 7626. In the absence of the NEVI
Formula Program and other federally funded EV charging infrastructure
investments, the market will not prioritize the installation of EV
chargers in low or medium income densely populated urban communities
where the cost of real estate is relatively higher or in sparsely
populated rural areas lacking access to transportation alternatives. If
access to EV chargers is dictated by these market forces, then rural
areas, underserved communities, and disadvantaged communities will
experience delayed and diminished access to this clean energy
technology and the transportation infrastructure that is vital to a
healthy economy. Such an outcome would not support widescale national
EV adoption and the deployment of EV charging infrastructure. It would
also be at odds with E.O. 13985.
This final rule complements the February 10, 2022, NEVI Formula
Program Guidance, which encouraged EV chargers to be spaced a maximum
distance of 50 miles apart along designated Alternate Fuel Corridors
(AFCs), by requiring minimum standards for the development of each
station to achieve fully built out status. Providing minimum standards
and requirements for the development of each charging station helps to
ensure equitable access to clean transportation options and the
electric grid across all communities, increasing parity in clean energy
technology access and adoption. Over the long-term, according to the
DOE, EV ownership is usually less expensive than ownership of gasoline-
powered vehicles.\12\ Additionally, the low cost of operation makes
some EVs less expensive on a monthly basis, compared to equivalent
gasoline-powered vehicles, when vehicle purchase price is financed.
Thus, increased adoption in communities could be associated with a
community-wide decrease in transportation energy cost burdens. In
communities where transportation corridors see a mode-share shift from
gasoline-powered vehicles to EVs, there will be a marked reduction in
environmental exposures to transportation emissions. Widespread
adoption of EVs in the U.S. would also increase our energy resilience
by increasing the share of vehicles that operate on energy sources that
are domestically produced and regulated and support energy independence
and create domestic jobs.
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\12\ https://afdc.energy.gov/calc/. This tool calculates the
total cost of vehicle ownership. Selecting the 2022 Ford Mustang
Mach-E RWD and an equivalent gasoline-powered vehicle, such as the
2022 Ford Explorer RWD Gasoline, shows that the EV's total cost of
ownership breaks even with the conventional vehicle after 5 years
when gasoline price is set at $4.50/gallon and the state of Ohio is
selected.
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The NEVI Formula Program and other federally funded EV charging
infrastructure investments also address the acknowledgement in E.O.
14008 that the path to a net-zero emissions economy provides
opportunities to create well-paying, union jobs to build a modern
sustainable infrastructure. 86 FR 7622. This final rule outlines
minimum qualifications for technicians working on-site at charging
stations. Minimum skill, training, and certification standards for
technicians ensure that the deployment of charging infrastructure will
support stable career-track employment for workers across the country,
creating more openings for workers to pursue training in the electrical
trades--critical occupations for the clean energy transition. By
requiring on-site installation, maintenance, and operations to be
[[Page 12728]]
performed by a well-qualified, highly-skilled, and certified, licensed,
and trained workforce, this final rule also increases the safety and
reliability of charging station function and use, and mitigates project
delivery issues such as cost overruns and delays.
This final rule establishes minimum standards and requirements
specific to the use of NEVI Formula Program funds, funds made available
under Title 23, U.S.C. for projects for the construction of publicly
accessible EV chargers, and any EV charging infrastructure project
funded with Federal funds that is treated as a project on a Federal-aid
highway. Consistent with E.O. 14036, ``Promoting Competition in the
American Economy,'' 86 FR 36987 (July 14, 2021), if successfully
deployed, an interoperable EV charging network can be expected to give
EV manufacturers more space to experiment, innovate, and pursue the new
ideas leading to more choices, better service, and lower prices
especially with regard to the EVs themselves. E.O. 14036 also calls for
a Government-wide approach to ensuring improved access for
entrepreneurs and better service for consumers by reducing the ability
for companies to make products difficult to replace or service.
This final rule aligns closely with E.O. 14036 by promoting
competition and opening the EV charging market to new entrants. It does
so both generally, by establishing transparent standards, and
specifically, by including interoperability standards which require
standard protocols for communication between EVs, chargers, and
charging networks. The interoperability requirements include network
switching requirements which ensure that it is not prohibitively
difficult to switch network providers after charging infrastructure is
installed.
Summary of This Final Rule
Applicability
This final rule establishes applicability of these regulations to
projects funded under the NEVI Formula Program and projects for the
construction of publicly accessible EV chargers under certain statutory
authorities, including any EV charging infrastructure project funded
with Federal funds that is treated as a project on a Federal-aid
highway, except where explicit limited applicability is noted in the
regulatory text.
Procurement Process
This final rule establishes a requirement for there to be public
transparency regarding the process of how the price will be determined
and set for EV charging.
Number of Charging Ports
This final rule establishes a requirement for the number of ports
at a charging station. Any time charging stations are installed there
is a required minimum of 4 ports, notwithstanding the type of port
(Direct Current Fast Charger (DCFC) or alternating current (AC) Level 2
or a combination of DCFC and AC Level 2). Additionally, in all
instances when a DCFC charging station is installed along and designed
to serve users of designated AFCs, there must be at least four network-
connected DCFC charging ports.
Connector Types
This final rule establishes a requirement that each DCFC port must
have a Combined Charging System (CCS) Type 1 connectors. This final
rule also allows DCFC charging ports to have other non-proprietary
connectors so long as each DCFC charging port is capable of charging a
CCS-compliant vehicle.
Power Level
This final rule establishes a requirement that each DCFC located
along and designed to serve users of designated AFCs must
simultaneously deliver up to 150kW, as requested by the EV, and that
each AC Level 2 port be capable of providing at least 6 kW per port
simultaneously across all AC ports with an option to allow the customer
to consent to accept a lower power level to allow power sharing or to
participate in smart charge management programs. This final rule also
clarifies that power sharing is permissible above the minimum 150-kW
per-port requirement for DCFCs.
Availability
This final rule establishes a requirement that each charging
station along designated AFCs and intended to serve the users of
designated AFCs must be available 24 hours per day, 7 days per week and
charging stations not along AFCs and not intended to serve the users of
designated AFCs must be available for use and accessible to the public
at least as frequently as the business operating hours of the site
host.
Payment Methods
This final rule establishes a requirement that charging stations
must provide a contactless payment method that accepts major credit and
debit cards and accept payment through either an automated toll-free
phone number or a short message/messaging system (commonly abbreviated
as SMS). Payment methods must be accessible to persons with
disabilities, not require a membership, not affect the power flow to
vehicles, and provide access for those that are limited English
proficient.
Equipment Certification
This final rule establishes a requirement that all equipment is
appropriately certified and that all AC Level 2 chargers are ENERGY
STAR certified.
Security
This final rule establishes a requirement that States are required
to implement appropriate physical strategies for the location of the
charging station and cybersecurity strategies that protect consumer
data and protect against the risk of harm to, or disruption of,
charging infrastructure and the grid.
Long-Term Stewardship
This final rule establishes a requirement that chargers are
maintained in compliance with this regulation for a minimum of 5 years.
Qualified Technician
This final rule establishes a requirement that the workforce
installing, maintaining, and operating the chargers has appropriate
licenses, certifications, and training. This final rule also requires
that all electricians installing, operating, or maintaining EV supply
equipment have a certification from the Electric Vehicle Infrastructure
Training Program (EVITP) or graduation or a continuing education
certificate from a registered apprenticeship program. Additionally, for
projects that require more than one electrician, at least one
electrician must be an enrolled in an electrical registered
apprenticeship program. This final rule also clarifies that non-
electrical work must be performed in accordance with State
requirements.
Customer Service
This final rule establishes a requirement that EV charging
customers must have a mechanism to report issues with charging
infrastructure. These reporting mechanisms must provide multilingual
services and be compliant with the American with Disabilities Act of
1990.
Customer Data Privacy
This final rule establishes a requirement that charging station
operators only collect, process, and retain personal information
strictly necessary to provide the charging
[[Page 12729]]
service to a customer and take reasonable measures to safeguard
customer data.
Use of Program Income
This final rule establishes a requirement that the use of income
derived from the real property shall be used for Title 23, U.S.C.,
eligible projects and that the use of income derived from the operation
of the EV charging facility shall be used for debt services, return on
investment for private financing, improvement or maintenance of the EV
charging station, payments under public-private partnerships, or other
Title 23 purposes.
Interoperability of EV Charging Infrastructure
This final rule establishes certain interoperability requirements
for charger-to-EV communication, charger-to-charger-network
communication, and charging-network-to-charging network communication,
as well as a requirement for chargers to be designed to securely switch
charging network providers without any changes to hardware.
Traffic Control Devices or On-Premise Signs Acquired, Installed, or
Operated
This final rule establishes compliance with the MUTCD and 23 CFR
part 750 for on-premise signs.
Data Submittal
This final rule establishes quarterly and annual data submittal for
all projects funded under the NEVI Formula Program and projects for the
construction of publicly accessible EV chargers under certain statutory
authorities, including any EV charging infrastructure project funded
with Federal funds that is treated as a project on a Federal-aid
highway. This final rule also establishes one-time data submittal
requirements for both the NEVI Formula Program projects and grants
awarded under 23 U.S.C. 151(f) for projects that are for EV charging
stations located along and designed to serve the users of designated
AFCs. This final rule also establishes a requirement applicable only to
the NEVI Formula Program projects that a Community Engagement Outcomes
Report must be included in the State EV Infrastructure Deployment Plan.
Charging Network Connectivity of EV Charging Infrastructure
This final rule establishes charging network connectivity
requirements for charger-to-charger-network communication, charging-
network-to-charging-network communication, and charging-network-to-
grid-communication, as well as a requirement that chargers must remain
functional if communication with the charging network is temporarily
disrupted.
Information on Publicly Available EV Charging Infrastructure Locations,
Pricing, Real Time Availability, and Accessibility Through Mapping
This final rule establishes requirements for information on
publicly available EV charging infrastructure locations, pricing, real
time availability, and accessibility through mapping. The regulations
specify that these specific data fields that must be available, free of
charge, to third party software developers. The regulation also
specifies how the price for EV charging must be displayed and
stipulates that the price must be the real-time price and any other
fees in addition to the price for electricity must be clearly displayed
and explained. This final rule also establishes that each charging port
must have an average annual uptime greater than 97 percent.
Other Federal Requirements
Finally, this final rule species that all applicable Federal
statutory and regulatory replacement apply to the EV charger projects.
Summary of Comments
The FHWA published its NPRM at 87 FR 37262 on June 22, 2022. The
FHWA received 384 submissions to the docket resulting in more than
1,700 individual comments in response to the NPRM. The FHWA received
comments from a wide array of advocacy and interest groups, including
comments representing EV coalitions, energy coalitions, transportation
advocacy groups, as well as equity/environmental justice interest
groups, accessibility advocates, and natural environment advocacy
groups, among others; 31 State government offices, including State
departments of transportation, and three associations of States (the
American Association of State Highway Transportation Officials
(AASHTO), the Northeast States for Coordinated Air Use Management, and
the Western Governors Association); city and county governmental
agencies, private companies (primarily representing energy companies,
vehicle manufacturing companies, and charging equipment companies); and
individual private citizens, identified and anonymous.
Summary of Significant Changes Made in This Final Rule as Compared to
the NPRM
Section 680.106(b) was revised regarding the minimum number of
charging ports at each charging station. This section now requires all
stations along, and designed to serve users of, designated AFCs to
include at least four network-connected DCFC charging ports capable of
simultaneously charging at least four EVs. This section also now
requires all stations that are not located along, or designed to serve
users of, designated AFCs to include at least a total of four charging
ports; these charging ports can be either all DCFC or AC Level 2 or a
combination of DCFC and AC Level 2.
Section 680.106(e) was revised to specify different availability
requirements for charging stations located along designated AFCs, and
charging stations not located along, and not designed to serve users
of, designated AFCs.
Section 680.106(f) was revised to also require an automated toll-
free calling or an SMS as an additional payment method.
Section 680.108 was revised to incorporate regulations that were
previously shown under Sec. 680.114 in the proposed rule, as these
standards were identified to apply to interoperability. This section
was also modified to specify that chargers must be capable of using
Open Charge Point Interface (OCPI) for interoperability.
Section 680.112 was revised to clarify which programs were subject
to the reporting requirements as well as reduce the data reporting
burden by removing the requirement for reporting the cost of
electricity under the previous proposed Sec. 680.112(b)(6), reducing
the frequency of reporting of the previous proposed Sec. 680.112(b)(7)
to annually from quarterly, and changing of the previous proposed Sec.
680.112(b)(8)-(9) to one-time reporting requirements rather than
quarterly. The community engagement outcomes report was changed to
include a requirement to address this information in the annual State
EV Infrastructure Deployment Plan rather than as a separate report. To
address Confidential Business Information (CBI) concerns, all
quarterly, annual, or one-time data that is made public is required to
be aggregated and anonymized.
Section 680.114 was revised to remove interoperability requirements
(which were moved to Sec. 680.108). This section was also revised to
include a requirement that chargers remain functional if communication
with the
[[Page 12730]]
charging network is temporarily disrupted.
Section 680.116 was revised to clarify exclusions for the uptime
calculation including additional exclusions for scheduled maintenance,
vandalism, natural disasters, and limited hours of operation. Under
Third Party Data Sharing Sec. 680.116(c), several data elements were
removed that are of less importance for improving customer experience,
several data elements were added that are necessary for an improved
customer experience, and the data were re-organized into nine, more
logical categories, which also clarify data that are required at the
port level vs. station level.
Section-by-Section Discussion
This final rule was developed in response to comments received on
the NPRM. The following paragraphs summarize major comments received
and any substantive changes made to each section in this final rule.
Editorial or minor changes in language are not addressed in this
document. For sections where no substantive changes are discussed, the
substantive proposal from the NPRM has been adopted in this final rule.
General Comments
Although not directly related to proposed regulatory language,
several comments were received on the topic of spacing for EV chargers
encouraged to be every 50 miles in order to be considered fully built
out through the NEVI Formula Program, as defined by the NEVI Formula
Program Guidance (https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf). In that guidance, the 50-mile
distance was determined in order to ensure that older model EVs are not
excluded when considering both the mile ranges all EVs are capable of
and the desire to provide EVs a similar experience as gasoline-powered
vehicles with regards to the frequency of gasoline stations to utilize
and choose from along long-distance travel routes. No changes to the
distance were made in this final rule, but there is a process through
which States can request exceptions.\13\
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\13\ As described in https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf, ``As part of the development
and approval of State Plans, and in very limited circumstances, a
State may submit a request for discretionary exceptions from the
requirement that charging infrastructure is installed every 50 miles
along that State's portion of the Interstate Highway System within 1
travel mile of the Interstate, as provided in the Alternative Fuel
Corridors request for nominations criteria. All approved exceptions
will be supported by a reasoned justification from the State that
demonstrates the exception will help support a convenient,
affordable, reliable, and equitable national EV charging network.
Exceptions must be clearly identified and justified in State plans.
Additional coordination with FHWA and the Joint Office may be
necessary before any exception is approved. Exceptions will be
approved on a case-by-case basis and will be adjudicated prior to
approval of a Plan.''
---------------------------------------------------------------------------
Section 680.102 Applicability
Other Title 23-Funded Chargers
Several commenters opposed or questioned the broad applicability of
the proposed rule beyond projects funded under the NEVI Formula Program
to other projects for the construction of publicly accessible EV
chargers under Title 23, U.S.C. Some commenters addressed concern that
the application of the rule to all Title 23 funded projects would
detract from the ability to construct medium-duty and heavy-duty (MD/
HD) EV charging infrastructure using a broad range of currently
available funding sources, while other commenters requested
clarification about the application of the rule for Title 23 funded EV
charging projects. Several States and organizations representing State
DOTs requested clarification on which specific subsections of the rule
would only apply to NEVI Formula Program funds, and which subsections
would apply to all Title 23 programs.
Yet other commenters oppose the applicability of the rule to all
Title 23 programs outright, requesting more flexibility for States and
other designated recipients to determine standards to meet local needs
with the broad range of Federal funding programs. Commenters also
pointed out specific EV infrastructure eligibilities under other Title
23 funds that are not specifically provided for in the proposed rule,
such as the eligibility of vehicle to grid (V2G) infrastructure through
the Surface Transportation Block Grant Program.
Finally, several commenters identified that application of the
proposed rule to all Title 23 programs would also restrict the ability
to install alternating-current (AC) Level 2 charging which, in turn,
would impact the ability to address charging for multi-unit dwellings,
which would drastically hamper the ability of the NEVI Formula Program
and Title 23 programs to address equity in EV charging access and
benefits.
FHWA Response: This final rule enables States and other designated
recipients to implement federally-funded charging station projects in a
standardized fashion across a national EV charging network that can be
utilized by all EVs regardless of vehicle brand. Such standards provide
consumers with reliable expectations for travel in an EV across and
throughout the United States and support a national workforce skilled
and trained in charger installation and maintenance. Because of this,
FHWA has modified the language describing applicability in this final
rule to apply to projects funded under the NEVI Formula Program,
projects for the construction of publicly accessible EV chargers that
are funded with funds made available under Title 23, U.S.C., and any
publicly accessible EV charging infrastructure project funded with
Federal funds that is treated as a project on a Federal-aid highway.
The parts of the rule that apply only to the NEVI Formula Program are
clearly identified. To address some of the concerns expressing
opposition to the application of the proposed rule across all Title 23
funded projects, FHWA revised language in the final rule to provide
increased flexibility in the use of funds to install different types of
chargers. Additional flexibility is provided for projects that are not
located along AFCs, including the flexibility to install AC Level 2
chargers and DCFCs at lower power levels.
As further discussed in the following section, FHWA decided not to
broaden the applicability of this final rule to include minimum
standards for MD/HD EV charging infrastructure primarily so as not to
preempt the pace of the technological innovation. While not regulating
specific minimum standards for MD/HD, V2G, or other potentially
eligible uses of Title 23 funds, this final rule also does not preclude
the implementation of these technologies where not otherwise
prohibited.
Medium Duty/Heavy Duty Vehicles
Many commenters supported specifically addressing the needs of MD/
HD EVs in addition to the needs of EV passenger vehicles. Several
commenters identified the environmental, air quality, rural economy,
and equity benefits of ensuring that the applicability of the
regulation addressed the needs and parameters of the evolving MD/HD EV
sector. Commenters further elaborated that, by not specifically
addressing the unique needs of MD/HD EV charging in the regulation,
FHWA would be de facto discouraging investment in the needs of MD/HD
EVs. Several commenters recommended that funding be set aside
specifically for MD/HD EV charging infrastructure. Some commenters
requested that separate minimum standards be released to address the
[[Page 12731]]
unique needs of MD/HD EV charging, and yet other commenters requested
that this final rule be modified to address MD/HD needs. Despite
acknowledging the unique needs of MD/HD EVs, several commenters
identified that the MD/HD EV sector is less evolved than the light-duty
EV charging sector and that, because this portion of the industry is
still in its infancy, there may be a need to continue to monitor
technological developments before solidifying certain requirements
specific to MD/HD EV needs.
In fact, commenters pointed out that MD/HD EV charging technologies
are evolving and will be used in a number of ways. While many medium-
duty vehicles will likely charge at fleet depots and operate under hub-
and-spoke business models where they would not venture significant
distances from their base locations, a growing sector of MD/HD vehicles
will require on-corridor charging. Some commenters therefore suggested
that these requirements be designed so as to consider the future
accommodation of power demands and site use/circulation needs of long-
haul trucking. Yet other commenters requested that requirements address
MD/HD EV charging needs immediately, with some suggesting that a
certain number of federally-funded EV charging parking spaces be
designed to accommodate MD/HD needs.
Site design is a common topic of consideration in the comments
addressing MD/HD needs. Several commenters requested that the
regulation require that each charging station include at least one
pull-through space sized appropriately for MD/HD needs. Commenters
specifically identified that while MD/HD charging sites can be
compatible with light-duty (LD) charging, charging stations designed to
meet LD needs will not be suitable for MD/HD commercial vehicles.
Several commenters requested that FHWA develop a site design template
which incorporates the needs of MD/HD charging to assist the industry
in ensuring these needs are met. In addition to support for pull-
through design, commenters mentioned MD/HD vehicles have different
turning radii which impact both on-site circulation and ingress/egress,
and that MD/HD vehicles may have greater needs for on-site or nearby
amenities as MD/HD charging may require longer dwell times. Conversely,
one commenter noted that, if MD/HD charging is not a primary purpose of
a charging station, site design requirements which consider MD/HD needs
would be unnecessarily burdensome and wasteful.
Many commenters identified an opportunity to coordinate MD/HD
charging with required off-duty breaks for long-haul truckers. One
commenter noted that the regulation should consider dwell time needs
for MD/HD charging and ensure that dwell time fees not penalize MD/HDs
for their longer dwell times for charging. A handful of commenters
identified a need to modify EV charging signage so as to help long-haul
truckers identify MD/HD charging opportunities that can best align with
their Federal hours of service (HOS) requirements. Site design and
collocation of amenities accommodating MD/HD needs could serve multiple
purposes beyond charging and required HOS breaks; the gap in long-haul
trucking duty cycle could also be leveraged for required inspections.
Many commenters opposed the availability requirements under
proposed Sec. 680.106(e) whereby charging stations would be required
to be available for use by the public 24 hours a day, 7 days a week on
a year-round basis. Commenters pointed to language in BIL which would
allow for charging stations to be restricted to ``authorized commercial
motor vehicle operators from more than one company'' \14\ and
identified that the requirement for near-constant public access would
restrict many important MD/HD charging applications, such as those on
port properties or for fleet charging.
---------------------------------------------------------------------------
\14\ Paragraph (2) under the Highway Infrastructure Program
heading in title VIII of division J of BIL, states that ``Provided
further, that funds made available under this paragraph in this act
shall be for projects directly related to the charging of the
vehicle and only for electric vehicle charging infrastructure that
is open to the general public or to authorized commercial motor
vehicle operators from more than one company.''
---------------------------------------------------------------------------
In addition to identifying unique site design requirements of MD/HD
vehicles, many of the commenters discussed differing MD/HD power level
needs. Several commenters mentioned that most MD/HD vehicles required
DCFC charging over 50 kW, with several commenters supportive of
requiring 350 kW or 1 MW to satisfy MD/HD needs. A few commenters also
mentioned an increased interest from the MD/HD EV sector in wireless
charging technologies, which is noted in its potential ability to
better address wear and tear from the MD/HD vehicles. Commenters also
pointed out that MD/HD vehicles may require different connectors from
LD vehicles. Commenters mention both the Megawatt Charging System (MCS)
charging connector (SAE J3271) which is rated for charging at a much
larger maximum rate, and the Society of Automotive Engineers (SAE)
J3068 connector as appropriate for MD/HD charging, also noting that the
market is continuing to evolve at a rapid pace, and it may be too early
to determine the appropriate uniform plug standard to serve these
vehicles.
Finally, commenters noted that cybersecurity is of particular
concern for MD/HD charging because the trucking industry is a high-
value target for malicious actors and cybercriminals. As such,
commenters requested consideration for specific cybersecurity
requirements related to EV charging.
FHWA Response: The FHWA notes that several of the comments provided
recommendations that are not within the purview of this final rule. For
example, the final rule does not impact program funding and thus cannot
regulate a set-aside for future MD/HD charging infrastructure or
cybersecurity requirements. The FHWA also cannot regulate minimum
standards that have not yet been identified or innovated in the
industry. As was emphasized by several of the commenters, FHWA
understands that the MD/HD charging industry is very nascent and
rapidly evolving; as such, FHWA has not modified the language in this
final rule to specifically accommodate MD/HD needs so as not to preempt
the pace of the technological innovation. The rule does not preclude
MD/HD charging infrastructure and FHWA strongly encourages project
sponsors to consider future MD/HD needs. The FHWA will continue to
monitor the technological advancements in the MD/HD industry for
consideration as to whether further regulation is needed to provide
applicable minimum standards and requirements at a future date. The
FHWA specifically encourages the inclusion of pull-through EV charging
parking stalls in the design of EV charging stations. Pull-through EV
charging parking stalls are acknowledged as better suited to the needs
of MD/HD vehicles.
Section 680.104 Definitions
AC Level 2
Commenters indicated that AC Level 2 chargers can operate on
circuits from 208 volts to 240 volts, with 208-volt circuits more
common in commercial installations.
FHWA Response: The FHWA agrees that AC Level 2 charging can utilize
circuits from 208 volts to 240 volts, depending on the application. The
definition has been modified in this final rule to incorporate the 208-
volt charging use case.
[[Page 12732]]
Charger
The FHWA received a comment requesting that the definition of
``charger'' be clarified to indicate whether chargers are required to
accommodate the charging of multiple vehicles simultaneously, or
whether a ``charger'' could refer to an instrument which charges only
one vehicle at a time. Additional clarity was also requested to
distinguish ``charger'' from ``charging station'' with a request to
include requirements for basic amenities in the definition for charging
station.
FHWA Response: The definition for charger is intentionally broad so
as to cover instances where the device can include one or more charging
ports to charge one or more vehicles simultaneously. Further
specificity regarding the definitions of ``charger'' or ``charging
station'' would amount to operational requirements which are dealt with
in Sec. 680.106.
Charging Station
The FHWA received comments requesting clarity to distinguish
``charger'' from ``charging station'' with a request to include
requirements for basic amenities in the definition for charging
station.
FHWA Response: Further specificity regarding the definitions of
``charger'' or ``charging station'' would amount to operational
requirements which are dealt with in Sec. 680.106. No changes were
made to the definition.
Charging Station Operator
In further review of the proposed regulation text, FHWA found a
need to clarify the responsibilities assigned to the charging station
operator as belonging to the owner of the chargers. This clarification
was needed in order to identify the responsible parties for the final
regulations where the language ``charging station operator'' is used.
The definition has been modified in this final rule to identify the
responsibilities of the owner of the chargers and supporting equipment
and facilities.
Contactless Payment Methods
The FHWA received a few comments requesting that the definition of
``contactless payment methods'' explicitly include payment by mobile
application in order to provide another effective accessible payment
option.
FHWA Response: The FHWA agrees that payment by mobile application
linked to a particular charging station would provide another effective
accessible payment option. Although payment by mobile application would
be inherently included in the proposed definition as ``another payment
device,'' the definition has been modified in this final rule to
explicitly incorporate payment by mobile application.
Cryptographic Agility
The FHWA received a comment stating that the use of the term
``cryptographic agility'' was preferred to the term ``encryption
systems'' as used in Sec. 680.106(h).
FHWA Response: In addition to revising the reference in the
proposed rule in Sec. 680.106(h) (see section-by-section discussion of
these changes below), FHWA found a need to define the term
``cryptographic agility'' as this is not a common or otherwise well-
defined term.
Direct Current Fast Charger (DCFC)
Several commenters identified that DCFC can be delivered through a
multitude of different iterations of power phases and voltage and, as
such, that the definition for DCFC should be rooted in the output of DC
electricity, not the particular characteristics of input or output
power, which vary. Multiple commenters said that the proposed
definition of DCFC, which stated that DCFC use 3-phase, 480-volt input
power, would effectively prohibit the use of 150-kW DCFCs operating on
lower-voltage, single-phase input power with supplementary battery and/
or solar energy systems.
FHWA Response: The FHWA agrees that the defining characteristic of
DCFC is the ability to deliver an output of direct-current electricity
to the EV. The definition has been modified in this final rule to
remove references to input power characteristics.
Distributed Energy Resource
One commenter recommended modifying the definition of ``Distributed
energy resource'' to explicitly include EVs as a type of distributed
energy resource, citing the role of EVs in supplying power for the grid
using V2G technology.
FHWA Response: While FHWA acknowledges the power supply role that
EVs play in a V2G environment, the definition of ``Distributed energy
resource'' does not exclude EVs as written and, therefore, requires no
modification.
Electric Vehicle
The FHWA received a comment that the definition for ``electric
vehicle'' specify that the vehicle can receive electricity from an
external power source so as to exclude hybrid vehicles which are
charged through regenerative braking and their internal combustion
engines.
FHWA Response: The FHWA agrees that EVs should be defined by
receiving electricity from an external power source. The definition has
been modified in this final rule to specify charging from an external
power source. The definition has also been modified to refer to ``motor
vehicle'' to align with terminology common in industry. Language has
also been added to the definition to clarify that electric bicycles are
not included in this definition for the purposes of this rule. The FHWA
excluded electric bicycles from this definition in order to avoid
application of inadvertent regulations with unintended consequences to
electric bicycle charging.
Megawatt Charging Standard
The FHWA received a comment that the regulation should include a
definition for Megawatt Charging Standard (MCS) which has yet to be
finalized but is anticipated to serve as the industry standard
connector type for charging heavy-duty trucks.
FHWA Response: The FHWA acknowledges that MD/HD charging
technologies are more nascent than LD charging technologies. This final
rule does not preclude the use of MCS; however, since the industry
standard for MCS, SAE J3271, has not yet been finalized, FHWA has
intentionally not revised this final rule to incorporate MCS in an
effort to not inadvertently create restrictions on these emerging
technologies at this time.
Open Charge Point Protocol
The FHWA received a comment taking issue with the proposed
definition for Open Charge Point Protocol (OCPP)'s reference to
``network,'' stating that ``network'' is an ambiguous term that could
mean software, wireless communications, or even a company's combined
hardware and technology.
FHWA Response: This final rule includes a definition for ``charging
network'' that clarifies the ambiguity identified in the OCPP
definition.
Plug and Charge
The FHWA received a comment requesting additional specificity in
the definition for ``Plug and Charge'' to provide clarity regarding use
of International Organization for Standardization (ISO) 15118 because
several disparate definitions are in use in the industry.
FHWA Response: The FHWA agrees that ``Plug and Charge'' was
intended to correlate to ISO 15118. The definition
[[Page 12733]]
has been modified in this final rule to incorporate specific reference
to utilization of ISO 15118 and digital certificates for
authentication.
Power Sharing
The FHWA received comments regarding the use of the term ``smart
charge management'' that indicated there was confusion in the use of
this term and what is typically referred to as either ``power sharing''
or ``automated load management'' by the industry.
FHWA Response: The FHWA included the use of the term ``power
sharing'' in this final rule in order to distinguish ``smart charge
management'' activities from ``power sharing'' activities. A definition
for ``power sharing'' has been included in this final rule for this
reference.
Public Key Infrastructure
The FHWA received comments recommending that FHWA require
consideration of ``public key infrastructure'' (PKI) in the development
of cybersecurity strategies included in State EV Infrastructure
Deployment Plans under Sec. 680.106(h)(2).
FHWA Response: The FHWA included the use of the term ``public key
infrastructure'' in this final rule in order to describe an important
additional cybersecurity strategy recommended by a commenter. A
definition for ``public key infrastructure'' has been included in this
final rule for this reference.
Smart Charge Management
The FHWA received a few comments on the definition of ``smart
charge management.'' One commenter requested that the definition be
revised to disconnect the concept of chargers controlling the amount of
power dispensed from the concept that chargers can respond to external
power demand signals, the latter potentially running contrary to the
needs of customers at fast charging stations. Another commenter
requested that the definition be revised to include the concept that
chargers respond to external pricing signals, noting that electricity
pricing is one of the most important methods utilized by smart charge
management to incentivize drivers and operators to charge EVs at times
when it is more beneficial to the grid.
FHWA Response: The FHWA acknowledges that the proposed definition
conflated the concept of smart charge management with the concept of
power sharing among chargers at the same station. Smart charge
management involves controlling charging power levels in response to
external conditions and is typically applied in situations where EVs
are connected to chargers 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. The FHWA
agrees that responding to external power demand signals is not a
typical component of power sharing and it can be detrimental to the
customer experience in fast charging applications. The FHWA agrees that
smart charge management may involve both external power demand and
price signals. The definition of smart charge management has been
modified in this final rule and the definition of power sharing has
been added in response to commenters to avoid confusion.
Third Party
The FHWA received a comment requesting that the regulation define
``Third party'' to include any entity other than the State DOT.
FHWA Response: The FHWA understands the desire to have all parties
defined, however FHWA maintains that the proposed language retains the
State or other direct recipient's ability to define their own contract
terms specific to their own procurement process. A definition for third
party was not added.
Section 680.106 Installation, Operation, and Maintenance by Qualified
Technicians of Electric Vehicle Charging Infrastructure
Procurement Process Transparency for the Operation of EV Charging
Stations
Many comments were submitted on Sec. 680.106(a) Procurement
Process Transparency. Notably, most of the commenters on this topic
from State DOTs were generally supportive of the flexibility of the
language in the proposed regulation; some went so far as to state that
additional procurement requirements could impose unnecessary burden on
States or postulated that excessive requirements would discourage
desired private sector participation. State DOTs also requested that
the regulation not be modified to require or imply rate regulation by
the State and allow for the market to ultimately dictate price.
Most industry commenters that mentioned this topic were
enthusiastically supportive of the concept of procurement and price
transparency. A few private sector commenters expressed concerns
(shared by a few State DOT commenters) that the regulation should allow
for trade secret, CBI, and intellectual property protections when
requiring reporting how private charging networks set their price. On
the other end of the spectrum, a few industry commenters requested the
publication of specific data to include a list of eligible DCFCs that
meet minimum NEVI requirements and meet the minimum standards and
requirements for funding under the NEVI Formula Program and projects
funded under Title 23, U.S.C., or that the Federal government maintain
a national directory of EV suppliers and EV supply equipment with key
metrics for use by the States and industry.
Several industry commenters requested that Requests for Proposal
(RFP) and proposal documents be published on the Joint Office website
and that the Joint Office maintain a bidding docket which would allow
the States (and the public) access to compare bids received across the
country.
Some commenters requested clarification on language in the proposed
rule. In particular, it was noted that the phrase ``price and cost
data'' in Sec. 680.106(a)(2)(v) (currently Sec. 680.106(a)(5)) is
vague and open to interpretation. Other commenters suggested additional
fields of data collection to expound on ``price and cost data''
requirements and other fields of interest. Suggested additional data
included objectively qualified ``total cost of ownership,'' average
installation costs, projected peak demand charges, and required
infrastructure upgrades. Other commenters noted concerns with requiring
specific metrics for price and cost data. One commenter noted that the
price of electricity will most likely be dependent on the cost charged
by the utility, but the reporting of operations and maintenance costs
for each site could be a useful independent additional metric. Another
commenter asserted that station-specific fees such as idle fees or any
other dwell-time-related charges should remain the responsibility of
site hosts and network operators and not be reported to the State DOT.
One commenter also noted a concern with showing the proposed
contract with an awardee and requested that this language under Sec.
680.106(a)(2)(iv) be changed to ``executed.''
FHWA Response: Most State DOTs submitting comments on this topic
lauded the flexibility in the proposed regulation language, noting the
importance of flexibility to allow for interpretation through diverse
State law
[[Page 12734]]
and potential trade secret, CBI, and intellectual property protections.
As such, FHWA has not included revisions to ``price and cost data'' as
required under Sec. 680.106(a)(2)(v) (currently Sec. 680.106(a)(5)).
The FHWA agrees with the value of maintaining a nationwide database for
applicable RFP documents and proposals and will consider opportunities
to facilitate the creation of such a database. The FHWA disagrees that
the language in Sec. 680.106(a)(2)(iv) (currently Sec. 680.106(a)(4))
should be changed to ``executed''. The purpose of this regulation is to
increase transparency of the procurement process undertaken by States
and other direct recipients and the language in the final rule under
Sec. 680.106(a)(4) ensures that the contract proposed by States and
other direct recipients is available for public review prior to
execution. Noting the support for EV charging procurement and price
transparency in the comments, FHWA also removed the restricted
applicability language in the proposed rule to broaden the application
of this provision to all projects otherwise subject to this rule.
Number of Charging Ports
The FHWA received a significant amount of comments on the number of
chargers proposed in Sec. 680.106(b). Many commenters supported the
proposed minimum requirement as written for a minimum of four charging
network-connected DCFC ports capable of simultaneously charging at
least four EVs. Other commenters were generally supportive of the four-
port minimum requirement but suggested that in some instances an
exception process should be allowed so as to reduce the number of ports
at certain stations to a minimum of two. Commenters suggested that the
existing NEVI Formula Program exception process be expanded to allow
for reducing the number of ports (or power requirements at each port),
whereby States could submit exceptions for sites that are particularly
remote, that have greater difficulty in receiving adequate power, or
that would otherwise never be financially self-sustaining.
Alternatively, some commenters suggested that the requirement remain at
a minimum of four ports, but that States or other designated recipients
be allowed to ``phase in'' to this requirement over several years with
an initial requirement of two ports constructed along with spacing and
make-ready power investments to support the future installation of the
remaining two ports. Another alternative proposed was that the four-
port minimum requirement remain, but States or other designated
recipients retain flexibility to install fewer than four ports in
certain prescribed circumstances to include geographic location in a
county with less than 50 persons per square mile of land area.
Other commenters suggested that the regulation allow the minimum
four-port requirement to be met by aggregating charging ports installed
at multiple locations in close proximity rather than in the immediate
vicinity on one site.
In contrast to the aforementioned commenters, a handful of
commenters also recommended that the minimum required number of
charging ports be either a larger number (6 or 8) or a smaller number
(1 or 2), providing States or other designated recipients flexibility
to increase beyond the minimum number required as needed. Commenters
recommending a larger minimum-port requirement expected future demand
for EV charging along AFCs to rapidly increase and wanted to future-
proof facilities for excessive queuing. Commenters recommending fewer
than four ports for the requirement indicated that the four-port
minimum requirement would be overly burdensome in many instances,
particularly rural areas, and a smaller requirement would provide
States or other designated recipients the flexibility to increase the
number of ports as-needed.
A few other comments were also submitted opposing a minimum
required number of ports altogether, recommending instead that the
final regulation indicate that the number of ports at a charging
station should correlate to individualized projections for use.
Other commenters focused on the implementation of the rule rather
than the content. The language in the proposed rule stated that Sec.
680.106(b) applies only to NEVI Formula Program projects. However,
commenters pointed out that the February 10, 2022, NEVI Formula Program
Guidance indicates that States would have additional flexibility to
determine the type and location of any additional EV charging
infrastructure after the Secretary of Transportation has certified that
the State's AFCs for EVs are fully built out. Commenters elaborated on
benefits of providing flexibility for States to use NEVI Formula
Program funds for AC Level 2 charging sites for redundancy, equity, and
network coverage, and requested that FHWA provide for this flexibility
in this final rule.
One commenter recommended including a requirement for at least one
AC Level 2 charger along with at least one AC Level 1 charger at each
charging station (in addition to the four-port DCFC requirement). The
benefit of these AC Level 1 and 2 chargers would be to provide
emergency redundance, to provide more affordable charging options, and
to power e-bikes and e-scooters.
The International Association of Fire Chiefs also submitted a
comment detailing multiple safety recommendations. Among these
recommendations was a suggestion that no more than two charging ports
be placed side-by-side at an EV charging station, in order to mitigate
the threat of thermal runaway.
FHWA Response: The FHWA continues to see value in regulating a
minimum number of ports at charging stations and clarifies that this
section regulates the number of charging ports. This final rule allows
for a predictable, standardized, and forward-looking charging capacity
for EV drivers throughout the country when Federal funds are used. The
FHWA agrees with the many commenters that were supportive or generally
supportive of a four-port minimum requirement at each charging station.
A minimum number of four ports per station will help ensure that
Federal dollars are invested in a cost-effective manner by providing
economies of scale when building out new stations for fixed costs such
as grid connection. Moreover, a four-port minimum will help mitigate
the risk of underbuilding and needing to expand capacity at stations
soon after they are built to accommodate new demand. The four-port
minimum requirement also allows for sufficient redundancy should one or
more port be experiencing downtime. It also allows for redundant
capacity for EVs users that have planned to stop and charge at a
station along their planned travel routes, should those EVs users
encounter occupied ports at the time of their intended charging stop.
The wide support among the comments for a minimum of four ports also
indicates that four ports strikes the correct balance of desired
redundancy and capacity while not overly burdening a minimum
requirement.
However, FHWA agrees that, in certain circumstances, there may be
situations where a four-port DCFC minimum requirement might not be
warranted. The FHWA did not agree that an appropriate response to these
circumstances would be the implementation of an exception process or
phase-in requirement whereby a smaller number of ports would be allowed
for a temporary period or indefinitely in specified circumstances.
Introducing inconsistency in the number of ports along the national
[[Page 12735]]
network would be undesirable as it would make the entire charging
network less convenient, reliable, and equitable. The language in this
final rule has instead been modified to clarify that any time charging
stations are installed there is a required minimum of 4 ports,
notwithstanding the type of port (DCFC or AC Level 2 or a combination
of DCFC and AC Level 2). Additionally, in all instances when a charging
station is installed along and designed to serve users of designated
AFCs, there must be at least four network-connected DCFC charging
ports.
The FHWA recognizes that there may be some locations that are
geographically located along a designated AFC where an EV charging
station is intended to serve local EV users and communities rather than
the vehicles traveling on the AFCs such as at local business
establishments or community service locations like community centers,
town halls, or libraries. These are the types of locations that may
still warrant an EV charger installation but are not intended to serve
the users of designated AFCs and therefore may not need the four DCFC
charging ports. This results in flexibility to install community-
focused chargers in close proximity to AFC corridors, and not have the
four network-connected DCFC charging ports requirement apply.
Accordingly, FHWA would not count these types of stations with less
than four DCFC charging ports in the assessment of distance
requirements of charging stations along corridors. Also, by removing
the language from the proposed rule that restricted this regulation to
NEVI Formula Program funds, the revised language in this final rule
removes the implicit prohibition on NEVI-funded AC Level 2 Chargers and
allows for the implementation of charging stations with AC Level 2
Chargers using NEVI Formula Program funding, at the discretion of the
State, according to program guidelines after the State's AFCs for EV
Charging have been certified as fully built out.
The FHWA also acknowledges comments detailing site design
recommendations regarding the proximate location of multiple charging
ports to address fire safety. However, site design recommendations are
not specifically addressed in this final rule as they are governed by
other laws or authorities and typically involve complex decisions to
accommodate context-specific needs. The FHWA also acknowledges that
fire prevention strategies may be addressed in Sec. 680.106(h)(1)
where FHWA requires States and other direct recipients to implement
physical security strategies.
Connector Type
The FHWA received many comments on the proposed rule's discussion
of connector type. Many commenters supported the proposed requirement
for DCFC chargers to use CCS Type 1 connectors. Commenters stated that
the domestic EV market had mostly aligned around the use of CCS Type 1
connectors. The FHWA also received a large number of comments that,
while generally supportive of the proposed CCS connector requirement,
recommended the inclusion of CHAdeMO connectors as well. CHAdeMO
proponents lauded the importance of accommodating CHAdeMO connectors
for a few primary reasons. First, commenters noted that CHAdeMO was
proposed for vehicles being released in the domestic market as late as
2025, meaning that, based on their projected battery lives, CHAdeMO
vehicles would be on the roads until at least 2035. Accommodating
CHAdeMO vehicles would allow the chargers subject to this rule to
support second-hand EV ownership, which would be more accessible for
low-income groups and thus enable chargers subject to this rule to
better support low-income communities. Second, commenters noted that
CHAdeMO already provides bidirectional charging capabilities, a
technology that is very new for CCS vehicles using ISO 15118.
Commenters recommended several improvements to the regulation to allow
for greater consideration of CHAdeMO connectors including: providing
for use of NEVI Formula Program funds and all eligible Title 23 funds
for CHAdeMO connectors beyond Fiscal Year 2022 NEVI funding;
stipulating that CHAdeMO connectors deliver the same power level
stipulated for CCS; and allowing for a temporary exception of the ISO
15118 requirement for bidirectional charging for CHAdeMO vehicles. Some
commenters went so far as to recommend specific numbers of CHAdeMO
connectors required per site, where other commenters suggested that
States or other designated recipients be encouraged to do analysis to
identify if their local markets had a need to support CHAdeMO vehicles.
The FHWA also received a few comments in opposition to CCS as the
connector standard for DCFCs. Some commenters noted that CCS plugs were
bulky and difficult to manage when compared to Tesla plugs, posing
additional accessibility issues for users. Other commenters noted that
the MD/HD EV charging community would likely need a different type of
standard connector, but that this portion of the industry had not yet
matured or coalesced around an appropriate connector standard to list
for DCFC charging.
The FHWA also received several comments about the proposed AC Level
2 charging port connector, J1772. Most commenters were generally
supportive of the proposed AC Level 2 connector type. One commenter
recommended modifications to the proposed rule to allow for J1772
connectors to not be permanently attached so as to allow AC Level 2
chargers to more seamlessly integrate into existing urban parking
spaces. Another commenter recommended that the rule be modified to
allow AC Level 2 chargers a temporary waiver from the requirement to
adopt Plug and Charge or ISO 15118 compliance. A few commenters also
recommended that both J1772 and J3068 connectors be allowable connector
types for AC Level 2 charging.
The FHWA also received a few comments in opposition to the J1772
connector standard. Most of these commenters recommended that FHWA
instead require J3068 connectors for AC Level 2 charging. Commenters
lauded J3068 for its ability to service MD/HD charging and to allow for
vehicle-to-grid charging once the standard is developed.
The FHWA also received several comments discussing battery swapping
and wireless charging needs. These commenters generally opposed
addressing battery swapping and wireless charging in this rule because
these technologies have not yet developed sufficiently for standards. A
few commenters recommended that FHWA ensure the final regulation would
not prohibit the future use of battery swapping or wireless charging
technologies once the industry matures.
Although FHWA received many comments in support of the proposed
regulation as written, FHWA did receive a few comments opposing the
inclusion of a standard allowing proprietary connectors. These
commenters warned that provisions allowing for the inclusion of
proprietary connectors would serve to further bifurcate the market and
undermine the standardization of the industry. One commenter
recommended that if proprietary connectors be allowed, that they must
deliver the same power level stipulated for CCS and that they should be
allowed through NEVI Formula Program funds only after four CCS DCFC
charging ports were provided at a site.
FHWA Response: Commenters overwhelmingly supported the CCS
[[Page 12736]]
connector standard and verified that the industry is moving to adopt
CCS as a market standard; therefore, FHWA requires CCS Type 1
connectors for each DCFC port through this final rule. Although a few
commenters preferred Tesla connectors, most of the Tesla products are
proprietary and do not address the needs of the majority of EV makes
and models available in the domestic market. However, on November 11,
2022, Tesla announced its ``North American Charging Standard'' (NACS),
which makes its existing and previously proprietary Electric Vehicle
charging port and connector available for broad and open public use,
including to network operators and vehicle manufacturers. In the
announcement, Tesla noted that charging providers were planning to
offer NACS charging ports at public charging infrastructure. This
rulemaking allows permanently attached non-proprietary connectors (such
as NACS) to be provided on each charging port so long as each DCFC
charging port has at least one permanently attached CCS Type 1
connector and is capable of charging a CCS-compliant vehicle.
The FHWA agrees with commenters that CHAdeMO connectors provide
value to a segment of the market in the near term. The FHWA believes
that allowing the option of installing CHAdeMO connectors using the
first year of the NEVI Formula Program funding allocation gives States
sufficient opportunity to ensure equitable charging access according to
local needs, while limiting the cost of installing and maintaining a
connector that is becoming less common in the industry. Recognizing the
need for flexibility to accommodate the evolving technological needs of
charging in the future, FHWA modified the language of this final rule
to allow DCFC charging ports to have other non-proprietary connectors
(specifically identifying NACS and CHAdeMO) in addition to the required
four CCS connectors so long as each DCFC charging port is capable of
charging a CCS-compliant vehicle. The language was also modified to
clarify that each charging port must still be accessible through a CCS
connector. This avoids the possibility of having an entire charging
port that a consumer cannot use if there are only non-CCS connectors
attached to it. This also reflects comments that warned against the
bifurcation of the market by clearly elevating the prominence of the
CCS standard while still providing a bridge to other types of
connectors to allow time for the market to transition.
The FHWA also continues to require J1172 for AC Level 2 charging in
this final rule. The FHWA agrees that J3068 connectors may have future
benefits, particularly for MD/HD charging applications. However, the
proposed rule would already allow for but does not require the use of,
J3068 connectors for AC Level 2 charging. Therefore, FHWA has not
modified the language in this final rule to specifically accommodate
J3068 connectors.
The FHWA also agrees with commenters that it is premature to
include requirements regarding battery swapping or wireless charging.
Comments regarding ISO 15118 requirements are addressed in the
discussion of Sec. 680.108.
Power Level
The FHWA received a significant amount of comments on the proposed
rule's discussion of minimum power per DCFC charging port. Many
commenters expressed general comfort with a requirement for a minimum
power per DCFC charging port of 150 kW; however, some commenters
requested that the final rule clarify that the minimum station power
capability be required at or above 450 kW, rather than 600 kW, in order
to provide for more realistic maximum simultaneous usage of charging
infrastructure. Commenters clarified that EVs demand the greatest
amount of power at the beginning of their charging session, so rarely
would four cars be charging at the full 150 kW simultaneously.
Requiring less power per charging station would allow sites to be less
demanding on the power grid and also generally less expensive to
install and operate. Other commenters recommended that, to address this
dynamic of maximum grid power needed per site and to facilitate power
sharing or smart charge management more vigorously, this final rule
removes the word simultaneous from the requirement to provide at least
150 kW per charging port ``simultaneously'' across all charging ports.
Commenters indicated that facilitating power sharing or smart charge
management could have significant positive impacts on the reduction of
peak load, which provides value to all charging stations but is
particularly critical in providing for MD/HD charging. One commenter
asked that charging stations with greater than 2.5 MW capacity be
exempted from simultaneous minimum charging power requirement of 150
kW. One commenter said that the proposed 150-kW power requirement is
reasonable, given that it allows power sharing when charging vehicles
capable of 350 kW that are projected to enter the market by 2030.
Multiple commenters stated that smart charge management is not
appropriate for fast charging stations on highway corridors because
even if a driver willfully chooses to reduce their charge rate for load
management purposes at a corridor DCFC station, they may be impeding
other drivers that need a quick charge from using the charging
equipment. Other commenters questioned the power delivery mechanism
required by the proposed rule and requested that FHWA clarify if
distributed energy resources (DERs) were eligible.
Other commenters were opposed to the requirement for a minimum
power per DCFC charging port of 150 kW. Some commenters recommended
that the proposed requirement is simply too aggressive and that the
industry is not quite ready to supply the needed number of DCFCs at
that size. These commenters requested that FHWA consider a temporary
waiver or exception process allowing charging stations to delay or to
be individually exempted from the power requirement. Still other
commenters opposed the 150 kW requirement outright because they felt it
would not best address the market needs. Some commenters pointed to the
need for fast charging at a more moderate intensity for applications
outside of designated AFCs in the communities. These chargers could
efficiently meet needs in communities while providing 50 kW to 100 kW
of maximum power per port, while being cheaper to install. Indeed,
several commenters identified that requiring 150 kW, rather than 50 kW
or 100 kW, removes an opportunity to take advantage of scale. Reducing
the required maximum power per port allows for more charging stations
to be installed in context-sensitive applications. One commenter argued
that, because current EV battery design limits the amount of time an
individual vehicle can use the full charging port power rating, smaller
DCFCs can more efficiently and quickly charge some vehicles than larger
DCFCs by providing higher average power transferred to vehicles. This
commenter went on to argue that on sites with multiple smaller DCFC
chargers, if combined with load-sharing technologies when several ports
are not in use at a site, higher power level delivery is possible at
any individual port. Another commenter recommended removing the word
``maximum'' from the DCFC power requirement to avoid confusion.
Other commenters opposed the 150 kW requirement because they did
not feel it adequately addressed the needs of emerging technologies
such as ``in-motion'' wireless charging or MD/HD charging.
[[Page 12737]]
Where commenters have suggested waivers or exceptions from the 150
kW power requirement per port, and even where commenters have suggested
that the minimum power per port be lowered from the proposed 150 kW
requirement outright, commenters have suggested that site
infrastructure be upgradeable to enable future provision of higher
power levels on site. One commenter recommended that any lower powered
charging ports be installed with conduit ready for upgrade to 150 kW
power delivery.
Several commenters requested that FHWA consider providing for an
exception process to the power level requirements based on grid
constraints, lower traffic volumes, or cost prohibitive site
constraints. Other commenters requested that FHWA specifically regulate
that, when an excess of four chargers is provided on a particular site,
station and port power requirements be less restrictive for the
additional chargers.
Other commenters requested that FHWA consider the needs for future
charging through incorporation of a higher power requirement. Multiple
commenters requested that FHWA require a minimum of 350 kW per port to
shorten charging time for EV drivers, citing consumer survey research
and listing the many currently available or announced EVs capable of
charging at power levels above 150 kW. A few commenters requested that
at least one DCFC port be capable of delivering a minimum power of 350
kW, while others requested that FHWA not prohibit or discourage the
provision of ports capable of delivering 350 kW of power. Multiple
commenters recommended specifying a required range of output voltages
for DCFCs to ensure that chargers can supply power to vehicles with
different battery voltages. They stated that this is important because
newer EVs are frequently incorporating high-voltage battery packs above
500V and chargers with sufficiently high voltage capability will limit
charging speed or not be able to charge some vehicles. Commenters
recommended either 200 volts or 250 volts as the minimum and 950 volts
or 1000 volts as the maximum DCFC output voltage. One commenter pointed
out that Build America, Buy America compliant 350 kW DCFCs are not
currently available, requesting that FHWA issue a time-limited waiver
for these chargers so that they could be installed in appropriate
locations.
Most comments received about AC Level 2 power requirements were
supportive of FHWA's proposed rule. A few commenters wrote specifically
about the power levels proposed for AC Level 2 charging ports. One
commenter recommended that the 6-kW proposed requirement be replaced
with a 9-kW requirement, another commenter recommended it be replaced
with a 48-amp requirement, and another commenter recommended replacing
the word ``maximum'' with ``minimum'' for AC Level 2 charging. Another
commenter said that it is not possible to specify a power requirement
for all locations, but rather the private sector should be allowed to
choose power levels suitable to meet customer needs. Several commenters
requested that the AC Level 2 minimum power requirement be written to
allow more flexibility for power sharing and smart charge management in
locations where vehicles are expected to dwell for long periods of
time, in order to reduce cost and provide vehicle-grid integration
benefits.
Additionally, one commenter provided the general recommendation
that FHWA require that all chargers be clearly labeled with the maximum
power they are capable of delivering per port.
FHWA Response: The FHWA agrees that, in general, requiring less
power per charging station, either by installing chargers with lower
power capacity or by allowing dynamic power sharing, would allow sites
to be less demanding on the power grid and also generally less
expensive to install and operate. However, charging station power
requirements must also be set to ensure a consistent and satisfying
customer experience regardless of which charging port a customer
selects and how many other ports are currently in use. Therefore, the
requirement that each DCFC must simultaneously deliver up to 150 kW, as
requested by an EV, was retained as a minimum requirement to provide a
standard, reasonably high level of charging service for DCFCs.
Likewise, the requirement that each AC Level 2 port be capable of
providing at least 6 kW per port simultaneously across all AC ports was
retained, but a provision was added to allow EV charging customers to
consent to accept lower power to allow power sharing or to participate
in smart charge management programs.
Furthermore, FHWA updated this final rule to clarify that power
sharing is permissible above the minimum 150 kW per-port requirement
for DCFCs and 6 kW per-port requirement for AC Level 2 chargers. Given
the strong market trend toward EV charging power capacity above 150 kW
for DCFC and above 6 kW for AC Level 2 charging, this allows
flexibility to manage the cost of charging stations designed to meet
current and future demand for significantly increased power. The FHWA
agrees with the recommendation to specify required DCFC output voltage
and has updated this final rule to include the requirement that each
DCFC port support output voltages between 250 volts DC and 920 volts
DC. Regardless of the operating voltage of the battery, so that EVs are
able to receive at least 150 kW per port, FHWA suggests that DCFC
connectors be rated with a current carrying capacity of greater than or
equal to 375 Amps. Also, FHWA agrees that smart charge management is
usually not appropriate for fast charging stations, so reference to it
was removed from the DCFC power requirement in this final rule.
The FHWA acknowledges that the power level of AC Level 2 chargers
is typically specified in terms of amperage, but this final rule
retains the 6-kW specification to provide a consistent customer
experience, regardless of the circuit voltage of a particular AC Level
2 charger. The 6-kW requirement accommodates an AC Level 2 port with a
30-amp max current rating that is connected to a 208-volt AC power
supply.
The FHWA has concluded that the provision of multiple levels of
power availability at charging stations would detract from the goal of
standardization and from the ability to deliver a convenient,
affordable, reliable, and equitable solution for EV charging. The FHWA
also considered the requests to modify the power level requirements to
accommodate emerging technologies and found that the minimum power
level requirements in this final rule sufficiently accommodates
emerging technologies to serve the needs of MD/HD EVs. Technologies
such as in-road wireless charging are nascent, so FHWA finds addressing
standards in this final rule to be premature. The FHWA will continue to
monitor the technological advancements in inductive and catenary
charging for consideration as to whether further regulation is needed
to provide applicable minimum standards and requirements at a future
date.
Finally, FHWA removed the word ``maximum'' from the DCFC and AC
Level 2 power requirements and reworded the requirements to resolve
confusion, as suggested by commenters.
Availability
The FHWA received several comments regarding proposed availability
regulations. In general, commenters were supportive of the requirement
for stations to be available 24 hours per day, 7 days per week;
[[Page 12738]]
however, many commenters requested that FHWA require or encourage
charging sites to be collocated with travel amenities, specifically the
availability of restrooms and manned payment support services.
Commenters also proposed that a toll-free customer service hotline be
provided at each charging station to offer technical and payment
support.
Other commenters opposed the proposed requirement for near-constant
site access and usability, citing the restricted hours of several prime
candidates for charging stations such as local or State parks or the
typical environment of MD/HD charging. One commenter recommended that
availability instead align with the use of the Manual of Uniform
Traffic Control Device's description of hours of operation (Section
2J.01 of the current 2009 edition). Commenters noted that MD/HD
charging may be best provided, in some instances, on private sites that
have restricted hours and entry.
Other commenters were generally supportive of the availability of
stations available 24 hours per day, 7 days per week, but requested
this final rule specify limited exceptions to this availability.
Requested specified exceptions included needs for scheduled
maintenance, natural disasters, vandalism, and unforeseen
circumstances.
FHWA Response: The FHWA sees value in providing for near-constant
access for public charging along designated AFCs; however, FHWA agrees
with a need for flexibility to allow for some more restricted
availability in some community charging locations, such as public
parks. Therefore, FHWA has amended the language in the rule to allow
for less restrictive hours for charging stations located off designated
AFCs and require that the charging station must be available for use
and accessible to the public at least as frequently as the business
operating hours of the site host. This creates a minimum access
timeframe, while allowing longer access if the site host chooses and
site hosts are encouraged to keep their chargers open at all times the
charging stations are physically accessible. While FHWA agrees that
although there are advantages to collocating charging sites with travel
amenities where feasible, this is not required by regulation in the
final rule to both provide flexibility in locating stations where they
are otherwise needed but these amenities are not available, and to
reduce the cost burden for installation. The FHWA finds that the
language in the proposed rule provided for sufficient exceptions to
other availability requirements and has not made further modifications
to the language specifying limited availability exceptions.
Payment Methods
The FHWA received a significant number of comments regarding
payment methods as described in the proposed rule. Many commenters
recommended that this final rule include provisions for additional
payment methods. There was broad support among commenters for requiring
the clear display of a toll-free phone number staffed by real-time
customer support available to take payments or assist with customer
service issues. Another option discussed in the comments for increasing
the accessibility of payment methods was the use of a QR code which
could also specify options for users that are hard of hearing or are
limited English proficient.
A number of commenters also supported the inclusion of a
requirement for contact-based credit card readers activated through a
swipe, chip, or dip. Commenters pointed out that prepaid cash cards,
identified as being particularly useful in unbanked and underbanked
communities, usually lack ``tap'' based contactless features and
require either a swipe, chip, or dip to complete a transaction. Where
prepaid cards are identified as a potential solution to make EV
charging payment more accessible to low-income communities, commenters
noted that prepaid cards may incur high upfront and reload fees that
present another hurdle for access.
In contrast, FHWA also received comments supporting the contactless
payment requirement and opposing the addition of a contact-based
payment option. These commenters argued that contactless credit cards
are widely available and becoming ever more present in the marketplace,
and that where contactless credit cards are not available most users
would own a cell phone which would enable mobile-based payments. These
commenters also pointed out potential issues with the inclusion of
contact-based payment methods. Contact-based credit card readers are
susceptible to malicious practices such as skimming whereby thieves
capture credit card information from a cardholder through the insertion
of a small device in the point of information transfer. Malfunctions
with contact-based credit card payments are also cited as being
responsible for a large portion of reported downtime of existing
chargers, potentially contributing to the failure of stations in
meeting uptime requirements. Another point made by these commenters is
that the needs of unbanked and underbanked groups are more
appropriately addressed through the provision of technologies and
programs that work with contactless payment features rather than in
addition to them. Examples of these techniques include the provision of
free digital accounts or discount codes for charging sessions, or the
provision of prepaid cards with ``tap'' contactless technology.
Other commenters focused on aspects of the proposed rule that could
be improved to make payment more accessible to disabled populations.
Some commenters requested that FHWA consider the access to payment
displays along with access to the angle of the screen and card reader
from a seated position. One commenter noted that Section 508 of the
Rehabilitation Act would be triggered when designing the information
displayed through the payment system and when it becomes information
and communication technology.
Yet other commenters discussed the proposed requirement to provide
Plug and Charge payment capabilities. Many commenters were supportive
of the Plug and Charge requirement, stating that this new technology is
an improvement in the industry. Other commenters argued that it is
premature to require Plug and Charge payment capabilities because the
technology is still extremely new. Some commenters offered that FHWA
should encourage but not mandate Plug and Charge payment capabilities.
Other commenters complained that the proposed regulation did not
adequately address the needs of the MD/HD charging community. This
community often charges through enterprise agreements. Commenters
cautioned that FHWA should be careful so as not to craft the rule to
unintentionally hinder application to MD/HD charging.
Commenters also pointed out the need for vendors to be able to
offer charging even through prolonged network outages or in the event
of natural disasters. Vendors could either have a mechanism to store
payment information and charge users at a later time when systems are
fully functional, or to offer free charging when system connectivity is
down. Other commenters suggested that FHWA should allow for free
charging both as a back-up for emergency situations and at the will of
the vendor/site owner.
These commenters also raised questions about site connectivity. A
few commenters requested FHWA explicitly require charging stations to
ensure
[[Page 12739]]
availability of communication signals, noting that in some remote areas
communication signals, including internet and cell phone service, are
limited or challenging.
FHWA Response: While FHWA agrees that contactless payment methods
are critical to the future of the industry, FHWA also agrees that the
addition of other payment options could improve the accessibility of
charging stations to disadvantaged communities. The FHWA added the
requirement that charging stations provide EV charging customers an
automated toll-free phone number where customers can provide their
debit/credit card information via phone to an automated system in order
to initiate charging or an SMS where customers can provide their debit/
credit information via text to an automated system in order to initiate
charging. If choosing a toll-free phone number, this phone line need
not be staffed by live operators, thus reducing the burden of this
final rule. The use of an automated toll-free phone number can help to
alleviate many of the concerns regarding the inclusion of contact-based
(i.e., EMV/Magswipe readers) payment methods. From a cost perspective,
establishing an automated toll-free phone number or SMS is
substantially cheaper than implementing physical hardware and
economically scales across many chargers, because a single number can
be used to service many different locations. In fact, most major
service providers already have options to call for payment, and of the
over 55,000 chargers listed on the Alternative Fuels Data Center, fewer
than 700 do not have a phone number associated with them--indicating a
strong precedent. The FHWA recognizes that the toll-free calling and
SMS options are not perfect accessibility solutions. Consumers who are
unbanked, underbanked, or may not have access to a credit/debit card
may be able to use this option with a pre-paid card. However, consumers
who do not have access to a cell phone, customers that are deaf or hard
of hearing, or users who do not have cellular signal may not be able to
properly utilize the charging infrastructure through provision of an
automated toll-free phone number alone. Nevertheless, these options
seek to minimize the drawbacks of contact-based technology while
substantially decreasing the accessibility issues related to having a
minimum contactless payment requirement. The FHWA is not requiring
scannable graphic methods of payments due to the questions surrounding
cybersecurity and being able to ensure a payment is securely
transmitted to the intended destination.
The language in the proposed rule also already stipulates that
payment options must be ``accessible to persons with disabilities.''
Additionally, several commenters expressed concern regarding the
accessibility of payment mechanisms to individuals with disabilities.
As such, FHWA recommends that States or other designated recipients
ensure all station designs should consider recommendations from the
U.S. Access Board's recently released ``Design Recommendations for
Accessible Electric Vehicle Charging Stations.'' This document,
released in July 2022, provides guidance on issues such as reach height
for those in wheelchairs and auditory mechanisms for the visually
impaired, among others. These measures will be critical to ensure that
disabled individuals will not be unduly burdened by design issues
related to charger/station design. The additional payment method
options of either an automated toll-free phone number or an SMS is the
result of concerns raised for those users who may have run into
accessibility challenges if required to use certain payment methods.
The FHWA also agrees that, although there are some concerns with
contact-based options for credit card payments, States and other
designated recipients should be allowed to include these options.
Contact-based options for credit card payments are allowable under the
language of the proposed rule, therefore this final rule has not been
modified to further accommodate them.
The FHWA also acknowledges that although Plug and Charge is a new
technology, its recent commercial introduction is the result of many
automakers' plans to incorporate the feature into their products since
the first version of the standard was published in 2014. Additionally,
commenters from the automotive industry supportive of the rulemaking's
proposal indicate that Plug and Charge based on the first or ISO 15118-
20 versions of the standard will likely soon become a valuable feature
in widespread mass market EV models. Charging hardware capable of
supporting ISO 15118 software updates is required through several State
EV charging programs by mid-2023 to support Plug and Charge, and in
addition could provide grid integration and resiliency benefits as
vehicles with bi-directional charging capabilities are released into
the market. In order to capitalize on the benefits of Plug and Charge
capabilities while acknowledging requests from several commenters for a
need for additional time for compliance with the associated
technological requirements, FHWA has modified the language in this
final rule to more fully address a phased requirement for Plug and
Charge capabilities through language in Sec. 680.108 by adding the
compliance date of February 28, 2024.
The FHWA also considered the implications of the language in the
proposed rule regarding payment methods for MD/HD charging
applications. Because charging stations are statutorily required to
either serve the general public or to serve commercial motor vehicles
from more than one company, fleets with enterprise payment agreements
must still use some method of payment or authentication. This can be
accommodated by the same near-field-communication system that accepts
payment from major debit and credit card providers or through Plug and
Charge.
The FHWA agrees that charging stations should require that charging
be facilitated where payment systems may be down, including in
emergency scenarios. In instances such as natural disaster evacuations
or other such emergencies, people may be relying on chargers to
function with limited connectivity. The FHWA has modified this final
rule to include a requirement that chargers remain functional in these
instances through new language in Sec. 680.114(d).
The FHWA notes that connectivity challenges in remote areas should
be addressed by the States and other designated recipients during
siting and development, often through contracting, of charging station
sites. The FHWA emphasizes the importance of connectivity in order to
provide EV charging services and notes that there is assistance
available for States both through the NEVI Formula Program and other
funding sources in order to fund fully connected charging stations, and
that there are market-based solutions to provide connectivity through
satellite even where other connectivity challenges persist.
Finally, even though the option of allowing free charging was
implicit in the proposed requirements, FHWA modified the language in
this final rule to specify that payment mechanisms may be omitted from
charging stations if charging is provided for free.
Equipment Certification
The FHWA received a handful of comments regarding equipment
certification. A few commenters requested clarification in this final
rule for the exact standards for certification
[[Page 12740]]
to be used. Some commenters recommended that FHWA require documentation
of charger certification to Underwriters Laboratories (UL) standards,
specifying that UL 2594 be used for AC chargers and UL 2202 be used for
DCFCs. One commenter requested that FHWA specify that EV charging be
governed by the National Fire Protection Association (NFPA) 70,
National Electrical Code (NEC) Article 625, Electric Vehicle Charging
System.
Other commenters wrote in agreement with FHWA that ENERGY STAR
certification for DCFCs was premature. These commenters requested that,
if ENERGY STAR certification were to be required for DCFC, that FHWA
phase the timeline for certification.
FHWA Response: The FHWA agrees that there is value in specifying
the standards that should be used to certify DCFCs and AC Level 2
chargers, such as UL 2202 and 2594, respectively; however, specific
standards were not incorporated in this final rule to allow industry to
use newer versions of the standards as they become available to ensure
evolving best practices for safety be taken into account.
The FHWA recognizes that National Electrical Code standards apply
to construction permitting rather than equipment certification and are
thus not addressed in this rule. The language in the proposed rule
required ENERGY STAR certification only of AC Level 2 chargers, for
which standards are well-established. Therefore, FHWA did not include
modifications to the language in the proposed rule regarding ENERGY
STAR certification.
Security
The FHWA received a substantial number of comments on the proposed
language regarding both on-site physical security and cybersecurity.
With regard to physical security, many commenters recommended that FHWA
require both street and on-site lighting to illuminate and make visible
access to chargers and charging activities. Some commenters also
recommended that on-site security personnel be either mandated or
encouraged. Commenters noted that, at least where manned security was
not feasible, FHWA should require the provision of emergency call boxes
and closed-circuit television cameras (CCTV). Some commenters
recommended FHWA require design features that encouraged safety through
environmental design, such as requiring that chargers be visible to
passersby and unobstructed from the view of the street by buildings,
other utilities, or large landscaping features. Several commenters
mentioned that FHWA should encourage chargers to be collocated with
commercial amenities when possible, encouraging free access to
restrooms, seating areas, and drinking water. Other commenters
recommended that FHWA mandate that charging sites include weather
protected coverings.
Other commenters focused on the importance of requiring fire
protection protocols be in-place at all charging stations. One
commenter provided a list of recommended NFPA standards for requirement
to include: NFPA 25: Standard for the Inspection, Testing, and
Maintenance of Water-Based Fire Protection Systems; NFPA 70: National
Electrical Code[supreg]; NFPA 70B: Recommended Practice for Electrical
Equipment Maintenance; NFPA 900: Building Energy Code; NFPA 13:
Standard for installation of Sprinkler Systems; and NFPA 70E: Standard
for electrical Safety in the Workplace[supreg].
Another commenter provided a list of recommended required National
Electrical Installation Standards (NEIS) to include: ANSI NECA 303--
Standard for Installing Closed-Circuit Television Systems (CCTV); ANSI
NECA 416--Recommended Practice for Installing Energy Storage Systems
(ESS); ANSI NECA 417--Recommended Practice for Designing, Installing,
Operating, and Maintaining Microgrids; and ANSI NECA 701--Standard for
Energy Management, Demand Response, and Energy Solutions.
An even more substantial number of commenters specifically
addressed FHWA's proposed language regarding cybersecurity. Generally,
commenters agreed that additional specificity regarding cybersecurity
is needed for States. Some commenters asserted that cybersecurity at
charging stations should not be the responsibility of States, but of
the private vendors operating charging stations. The AASHTO's comments
identified that cybersecurity requirements would likely be passed
through from States to the private sector. Some commenters identified
that FHWA should confer with the General Services Administration fleet
management team and the petroleum industry to identify cybersecurity
practices in use that may be applicable for this rule.
Indeed, several commenters identified collaboration opportunities
for FHWA to develop the most appropriate cybersecurity strategies for
charging stations. Commenters specifically mentioned collaboration
opportunities for FHWA with the U.S. Department of Homeland Security's
Cybersecurity and Infrastructure Security Agency, the U.S. Department
of Energy's Office of Cybersecurity, Energy Security and Emergency
Response (CESER), Society of Automotive Engineers International, and
the National Association of State Energy Officials (NASEO) as potential
partners to develop consensus-based cybersecurity standards for EV
charging infrastructure. One commenter also requested that FHWA consult
with the National Highway Traffic Safety Administration (NHTSA) and the
Federal Motor Carrier Safety Administration (FMCSA) on the latest
cybersecurity research being conducted regarding MD/HD charging. Other
commenters provided specific recommendations regarding cybersecurity
strategies that FHWA should require. Several commenters recommended
that FHWA require that regular testing of cybersecurity features be
conducted and certified by parties that have no other ownership or
financial interest in the charging site.
Commenters also mentioned specific standards that could be utilized
to provide cybersecurity. Several commenters recommended that FHWA
incorporate reference to standards in the National Institute of
Standards and Technology (NIST) catalog of standards in order to
protect the charging station and sensitive customer information from
cyberattacks. Specific standards recommended from this catalog include:
NIST SP 800-63 Digital Identity Guidelines; NIST SP 800-175 A and B
Guideline for Using Cryptographic Standards; NIST SP 800-94 Guide to
Intrusion Detection and Prevention Systems (IDPS); NIST SP 800-92 Guide
to Computer Security Log Management; NIST SP 800-40 Guide to Enterprise
Patch Management; NIST SP 800-61 Computer Security Incident Handling
Guide; NIST SP-800-161 Supply Chain Risk Management Practices for
Federal Information Systems and Organizations; and NIST SP-800-53
Security and Privacy Controls for Information Systems and
Organizations. Other standards were also recommended for FHWA to
include Payment Card Industry (PCI) Data Security standard (DSS)
attestation through PCI DSS 3.2.1 for the processing, transmission, or
storage of cardholder data or the use of ISO 27001 or SOC 2 for the
attestation of customer data.
Other commenters recommended that FHWA include performance
standards mandating minimum requirements for cybersecurity rather that
selecting any particular protocols or solutions. Recommended
performance standards included methods to ensure operating system
software is authenticated during the initial stage of turning on or
else shut down, ensuring that over-the-air updates can be issued
remotely, and
[[Page 12741]]
that sensitive data are protected through encryption. Other commenters
recommended that FHWA require that all communications must have a
minimum of 128-bit encryption or simply that all communications must be
authenticated using certificates.
A few commenters identified the importance of secure communications
for cybersecurity. Some commenters recommended that broadband or
cellular infrastructure be added to any chargers, and that hardwired
ethernet communications for chargers should be encouraged. One
commenter expressed that it is not clear what the statement ``secure
operation during communication outages'' means.
Other commenters encourage FHWA to strengthen the language in the
proposed rule from ``may address'' to ``shall address'' to require
particular cybersecurity strategies to be implemented. Another
commenter pointed out that ``appropriate encryption systems'' is an
indefinite term and would be improved by replacement with
``cryptographic agility,'' which is more specific. Yet other commenters
recommended adding support of multiple PKIs to the list of
cybersecurity strategies that should be addressed.
One commenter identified a potential issue with the inclusion of
cybersecurity strategies and encouraged FHWA to prohibit the use of
invoking cybersecurity law to suppress truthful disclosures of defects
in subsidized products and services.
FHWA Response: The FHWA agrees that physical security of charging
station sites can be improved from consideration of additional
strategies to include visibility from passersby, monitoring using
security cameras, and the provision of emergency call boxes. The FHWA
has modified language in this final rule to include consideration of
these additional physical security strategies. The FHWA also agrees
that other strategies mentioned by commenters could provide physical
security benefits to include collocating charging stations with manned
amenities, public access to restrooms, and drinking fountains. The FHWA
encourages States and other designated recipients to collocate charging
stations with these amenities when possible, but recognizes that many
charging stations will be placed in rural and remote areas where this
collocation may not possible and therefore will not modify the language
in this final rule to require collocation. The FHWA also encourages
States and other designated recipients to require any necessary fire
prevention strategies but leaves the regulation of these codes to the
building industry rather than incorporating in this final rule.
The FHWA considered comments on specific cybersecurity standards to
incorporate. Given the lack of cybersecurity standards specifically
focused on EV charging infrastructure and the complexity of existing
cybersecurity policies, practices, and standards across Federal and
State government agencies and industries, FHWA leaves cybersecurity
provisions in this final rule as areas of consideration by States to
allow evolution of State NEVI cybersecurity plans outside the
regulatory process. The FHWA did update cybersecurity strategies of
consideration to more holistically reflect the scope of standards
recommended in comments. The FHWA acknowledges that multiple, ongoing
government and industry efforts are determining the appropriate
application of both existing appropriate cybersecurity standards and
best practices from other industries to the EV charging industry. The
Joint Office will provide ongoing technical assistance to States to
communicate the progress and findings of these efforts.
The FHWA agrees with the recommendation that States consider
strategies regarding both third-party cybersecurity testing and
certification and the support of emerging PKIs and has modified the
language in this final rule to include consideration of these
strategies. The FHWA also agrees to add language in this final rule to
explain that the selection of ``appropriate encryption systems'' to
``cryptographic agility,'' meaning the capacity to rapidly update or
switch between data encryption systems, algorithms and processes
without the need to redesign the protocol, software, system, or
standard. The FHWA also changed the phrase ``secure operation during
communication outages'' to ``continuity of operation when communication
between the charger and charging network is disrupted'' for clarity.
Long-Term Stewardship
The FHWA received many comments about the proposed regulation's
discussion of long-term stewardship requirements. Many commenters were
supportive of the proposed requirement for compliance with NEVI
standards for at least 5 years; however, several commenters questioned
if FHWA intended for all NEVI requirements to sunset after 5 years or
just certain requirements. Many commenters also identified a need for
continued operations and maintenance planning beyond 5 years. In fact,
some commenters cautioned against, and asked FHWA to consider
opportunities to prevent, widespread retirement, removal, or relocation
of chargers at the conclusion of the proposed 5-year stewardship
requirement. Commenters particularly cautioned against the impact of
retirement of charging stations after 5 years in low-income communities
where EV adoption rates may be slower.
One proposal to guard against the premature removal of chargers was
to extend the long-term stewardship requirement to 10 years. Commenters
pointed out that most chargers have a life cycle that extends at least
10 years, so extending this requirement to 10 years would more
efficiently use Federal dollars. Other commenters noted that, in order
to achieve financial viability, many charging stations could benefit
from longer-term support from the public sector.
Yet other commenters stated that minimum standards and requirements
should be indefinite, or specifically that charger projects completed
with NEVI or Title 23, U.S.C. funds could be owned by private sector
contractors indefinitely after the sunsetting of long-term stewardship
requirements. Moreover, commenters stated that, should a contract be
terminated by the State or other designated recipient, that State or
other designated recipient should be required to transfer ownership to
another EVSP using Open Charge Point Protocol (OCPP).
One commenter identified that utility interconnections may take
several months and often over a year from the construction of chargers
to operations and, as such, recommended that FHWA consider revising
language in this final rule to regulate standards from the date of
start of operation rather than installation.
FHWA Response: The FHWA agrees that there are concerns with
establishing a minimum standard for long-term stewardship that does not
cover the typical lifecycle of the infrastructure in question. However,
FHWA also notes that EV charging technology is relatively new and the
expected useful life of most chargers has yet to be verified at this
national scale. As such, FHWA retained the language in the proposed
rule to require at least 5 years of compliance in this final rule. The
FHWA also agrees that the wording of the proposed rule created
confusion about which minimum standards would be required to comply
with the long-term stewardship requirement; therefore, FHWA has revised
the language in this final rule to specify that this provision
discusses compliance with all
[[Page 12742]]
applicable standards in this final rule. Finally, FHWA agreed with and
correspondingly modified the language in this final rule to clarify
that application of long-term stewardship begins when chargers are
first operational.
Qualified Technician
The FHWA received many comments, including over a hundred comments
submitted with identical content from different submitters, opposing
the positive training requirements in the proposed rule. Many
commenters asserted that licensed electricians are already trained and
fully skilled in all of the content taught in EVITP, and that this
proposed additional requirement would be excessive. These commenters
stated that neither EVITP nor registered apprenticeship programs were
available in all areas of the country or affordable to all populations.
Commenters feared that these proposed requirements would exacerbate
existing limits on the electrical workforce and ultimately serve to
bottleneck widespread charger deployment.
Many commenters took issue with the option to achieve the
regulation through registered apprenticeship programs for electricians,
stating that USDOT is not involved with any existing registered
apprenticeship programs and, as such, no existing registered
apprenticeship programs would qualify. Commenters also pointed out that
registered apprenticeship programs are already underutilized and result
in existing workforce shortages. Other commenters did not oppose the
proposed requirements as written but recommended that FHWA include
other training program options to expand opportunities to a larger
sector of the workforce.
Other commenters identified concerns with positive qualification
requirements in general, identifying the competitive disadvantage for
smaller electrical contractors which include a disproportionate number
of the woman and minority-owned electrical contracting businesses.
Commenters asked if FHWA could consider on the job experience in lieu
of the proposed requirements, especially in the first few years of the
program. Other commenters asked if these training requirements could be
waived altogether for the first few years of the program so as to
prevent a workforce shortage from impacting the ability to efficiently
deploy chargers nationwide.
A few commenters also wrote in support of the proposed regulation
as written, citing the benefits of EVITP as a comprehensive training
program that was regularly updated. Some commenters acknowledged the
benefits of the proposed training requirements but requested that
States and other designated recipients be given an opportunity to
assess the strength of their workforce in identifying if they needed a
waiver from training requirements for the first few years of
deployment.
Many commenters opposed the application of training requirements to
non-electrical work and/or low-risk electrical work activities required
for on-site maintenance. One commenter also identified that graduates
of registered apprenticeship programs should not be penalized and
should have an opportunity to meet the training requirements through
continuing education courses.
FHWA Response: The FHWA agrees that there are concerns with the
potential impact of positive education/training requirements on
workforce bottlenecks and in establishing additional hurdles for access
to jobs for disadvantaged communities. However, as stated in the NEVI
Formula Program Guidance, FHWA recommends that States and other
designated recipients take proactive steps to work with training
providers, workforce boards, labor unions, and other worker
organizations, community-based organizations, and non-profits to build
a local workforce that will support the EV network in compliance with
the training and certification requirements in this final rule. States
and other direct recipients should familiarize themselves with the
Federal funding options that are available for workforce development
and training related to EV infrastructure.\15\
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\15\ DOT funding and financing programs with EV eligibilities
can be found in The National Electric Vehicle Infrastructure (NEVI)
Formula Program Guidance, available at https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/nominations/90d_nevi_formula_program_guidance.pdf.
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The FHWA notes that this training program is highly endorsed from a
large cross-section of EV charging stakeholders from both labor and
industry. The EVITP is the only EV charging-specific, brand-neutral,
training program that exists today and is utilized by both large and
small contractors. The DOT, DOE, and Department of Labor (DOL) will
work with State, local, and industry partners to continue to expand the
pool of talent for EVITP certified electricians as the online
certification can be completed in 20 hours. Costs for certification
requirements are an eligible use of funds under the NEVI program. The
FHWA agrees with comments that tout the need for a comprehensive
training and certification process to specifically address the needs of
EV charging in light of the significant issues experienced with uptime
and reliability amongst EV chargers on the road prior to the
implementation of this final rule. A February 2023 J.D. Power report
indicates that a survey including 26,500 charging attempts at Level 2
and DC fast chargers in all 50 States found that drivers cannot
reliably charge at public charging stations, with the rate of failure
increasing nearly 50 percent over the past two years, from 15 percent
in the first quarter of 2021 to over 21 percent by the fourth quarter
of 2022.\16\ The FHWA aims to address this reliability issue in three
ways by: (1) increasing the requirements for technical skills and
qualifications specifically related to electrical components of EV
chargers which require proper maintenance and prompt attention; (2)
requiring minimum uptime (see Sec. 680.116(b)); and (3) requiring data
for duration of outage and error codes associated with an unsuccessful
charging session (see Sec. 680.112(a)).
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\16\ https://www.autonews.com/mobility-report/ev-drivers-struggle-declining-reliability-charging-network.
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The EVITP was created through a collaboration of automakers, EVSE
manufacturers, educational institutions, utility partners, electric
industry professionals, and other key stakeholders in the EV charging
market to provide qualified electricians with ``the most comprehensive
training available in the market today.'' After considering the
comments, FHWA has decided that, in order to create a convenient
affordable, reliable, equitable national charging network, and in order
to contribute to readying the workforce for green good-paying jobs,
there is a need to retain most of the language in this section as
proposed.
Further, FHWA believes that requiring these qualifications will
communicate to industry groups, technical colleges, and other
educational groups the need for these training programs, and thus
expedite the development and deployment of these necessary educational
training programs. Greater availability of these training programs will
also provide opportunity for smaller electrical contractors, including
woman and minority-owned electrical contracting businesses. The FHWA
also clarifies that the EVITP certification is only applicable to
electricians in installation, operations, and maintenance; non-
electricians involved in operations and
[[Page 12743]]
maintenance are not required to be EVITP certified in the proposed or
final rule.
Despite receiving substantial comments in opposition, FHWA
maintains that EVITP is the appropriate training program which provides
comprehensive training for the installation of EV supply equipment. The
FHWA has addressed concerns with the EVITP by including an option that
States and other designated recipients can meet the requirement through
another registered electrical apprenticeship program that includes
charger-specific training. The DOT, DOL, and DOE are prepared to work
with industry to establish new charger-specific registered
apprenticeship programs.
The FHWA did agree that either graduation from a registered
apprenticeship program or certifying completion of a continuing
education from a registered apprenticeship program could appropriately
demonstrate the qualifications of electricians. As such, FHWA modified
the language in this final rule to allow for a continuing education
certificate from a registered apprenticeship program to qualify
electricians to meet this requirement. The FHWA acknowledges that
registered apprenticeship programs are currently underutilized and may
not meet the requirements identified in this final rule. However, FHWA
sees registered apprenticeship programs as appropriate training
pathways that can easily be modified to incorporate sufficient EV-
specific training. The FHWA also notes that registered apprenticeship
programs have existing capacity which can be utilized to quickly ramp-
up EV-specific training for a significant number of electricians. As
such, FHWA modified the language in this final rule to accommodate
appropriate registered apprenticeship programs as one of several
options to meet electrician training requirements.
Customer Service
The FHWA received a handful of comments on the proposed customer
service regulations outlined in the proposed rule. Several commenters
requested that FHWA require a toll-free customer service hotline be
clearly displayed and staffed 24/7 to address issues, customer payment
requests, or service issues. Commenters further requested that customer
service be accessible through scannable graphics and provide American
with Disabilities Act (ADA)-compliant access to service in multiple
languages. Some commenters asked that, in addition to requiring a toll-
free customer service hotline, FHWA require on-site technicians or
service kiosks for every charging site. Other commenters requested that
charging stations include an audio customer service call button.
FHWA Response: This final rule retains the requirement that
charging customers have a way to report outages, malfunctions, and
other issues with charging infrastructure. However, FHWA is not
prescribing how this should be accomplished and is, therefore, not
requiring the suggested specific methods such as customer service
hotlines, on-site technicians, service kiosks, or audio call buttons.
Some of these methods may be useful at certain locations, but FHWA
believes it would be overly burdensome from a cost perspective and thus
not appropriate to require them broadly via regulation. Additionally,
FHWA is not requiring customer service be accessible through scannable
graphics due to cybersecurity concerns.
Customer Data Privacy
The FHWA received a handful of comments regarding language in the
proposed regulation addressing customer data privacy. Most of these
commenters generally supported requirements to collect, process, and
retain only that personal information strictly necessary to provide the
charging service. Some commenters provided recommendations to
strengthen the intent of this proposed regulation. One commenter
recommended that certain types of customer data be made completely
confidential under Federal law and exempt from public records requests
or at least restricted from disclosure to those who seek it for
commercial purposes only. Another commenter recommended that FHWA
require routine log rotation/deletion of older records after a set
interval. Another commenter recommended that FHWA protect user payment
information by requiring that charging stations be compliant with
Payment Card Industry (PCI) Data Security standard (DSS) 3.2.1 for the
processing, transmission, or storage of cardholder data. One commenter
warned that requiring compliance with ISO 15118 will make all charging
sessions immediately identifiable and recommended that FHWA require
States and other designated recipients to make publicly available only
regional-level aggregates of data to anonymize user information for
commercial purposes.
Other commenters generally supported the proposed regulation but
noted that some data are needed by industry for research and analysis
in order to optimize future market-based solutions. To that end, a few
commenters requested that FHWA allow additional information to be
collected with the customer's express consent.
FHWA Response: The FHWA agrees that there are additional strategies
that could improve the protection of customer data privacy once the
data has been collected; however, these strategies are best deployed by
the Joint Office of Energy and Transportation as the hosts of the
national database and will not be regulated by this rule. (For more
information on the national database, see Sec. 680.112 Data
Submittal.) The FHWA also agrees that it is beneficial for charging
stations to be compliant with industry standard protections for
cardholder data privacy and has modified the language in the proposed
rule to incorporate PCI DSS. However, because PCI DSS versions update
on a frequent basis, FHWA stopped short of requiring compliance with a
particular version of PCI DSS, and instead states that chargers and
charging networks should be compliant with appropriate PCI DSS
standards.
Use of Program Income
The FHWA received many comments regarding Sec. 680.106(m) ``Use of
program income.'' Most commenters maintained that the rate of return on
chargers should be market-driven and based on the pricing of labor,
materials, and electricity. Some commenters mentioned that determining
a ``reasonable'' rate of return would be difficult for States and other
designated recipients because they do not have experience in managing
for-profit charging stations. Without this experience, commenters argue
that States and other designated recipients could unintentionally cap
return on investment below levels that the market could sustain, which
would, in turn, disrupt both the EV charging market and future
deployment of chargers. These concerns were raised by both industry and
States.
Commenters also mention that EV charging station service providers
often manage their sites on a portfolio-wide basis, where some charging
stations in a network/corridor are more profitable and effectively
subsidize underperforming, but critical, charging stations. Commenters
further indicated that some charging stations are monitored for
profitability over a series of years, not on an annual or quarterly
basis. These commenters requested that this final rule be revised to
acknowledge that a reasonable rate of return may be
[[Page 12744]]
evaluated over multiple years and multiple charging stations.
FHWA Response: The language in the proposed rule was provided to
call attention to existing requirements in Federal law regarding the
use of program income; \17\ therefore, FHWA has not modified the
language in this final rule. This final rule inherently includes
flexibility to consider market forces and the other issues raised by
commenters by using the term ``reasonable return on investment.''
However, FHWA would draw to the attention of States and other
designated recipients the comments that identify that reasonable return
is identified by the industry over multiple years and across multiple
charging stations.
---------------------------------------------------------------------------
\17\ 23 U.S.C. 156.
---------------------------------------------------------------------------
Other--Site Design
The FHWA received several comments recommending that this final
rule regulate components of site design for charging stations. In
addition to comments discussed above regarding site design for physical
security, FHWA received comments about site design to accommodate MD/HD
vehicles, to address accessibility needs, and to address fire safety.
In particular, commenters recommended that FHWA develop a template for
site design to accommodate MD/HD vehicles. Commenters with MD/HD
vehicle concerns noted that charging station sites should be designed
with at least one pull-through station and ingress/egress and
circulation plans meant to accommodate the turning radii of large
trucks.
Many commenters also supported the considerations for accessible
site design as published in the ``Design Recommendations for Accessible
Electric Vehicle Charging Stations'' guidance published by the U.S.
Access Board in 2022.\18\
---------------------------------------------------------------------------
\18\ ``Design Recommendations for Accessible Electric Vehicle
Charging Stations'', available at https://www.access-board.gov/tad/ev/.
---------------------------------------------------------------------------
Fire prevention and protection organizations also submitted
specific comments regarding site design towards fire prevention and
safety. These commenters suggested that no more than two charging ports
be placed side-by-side and that charging infrastructure should be
placed at a distance away from building and overhead power lines, and
outside of floodplains. These commenters also recommended that charging
equipment be installed per the latest National Electric Codes and
appropriate National Fire Protection Association standards.
FHWA Response: The FHWA agrees that site design for charging
stations would include many important considerations; however, the site
design recommendations listed are all either governed by other laws or
authorities or require complex decisions in order to accommodate
context-specific needs. Therefore, FHWA has not modified this final
rule to incorporate site design recommendations. However, FHWA strongly
encourages States and other designated recipients to consider
recommendations in addition to and beyond those provided for through
the ``Design Recommendations for Accessible Electric Vehicle Charging
Stations'' guidance published by the U.S. Access Board in 2022.\19\
Some considerations could include allowing for one or more pull-through
charging stations and on-site circulation and ingress/egress design
that accommodates medium- and heavy-duty vehicles that may access the
site for charging. The FHWA also appreciates the comments regarding
fire prevention which are best addressed through Sec. 680.106(h)(1)
where FHWA requires States and other direct recipients to implement
physical security strategies.
---------------------------------------------------------------------------
\19\ Ibid.
---------------------------------------------------------------------------
Section 680.108 Interoperability of Electric Vehicle Charging
Infrastructure
Charger-to-EV-Communication
The FHWA received a significant number of comments in response to
the proposed language under Sec. 680.108. Many commenters were
supportive of the language as written in the proposed rule. Commenters
praised the reference to ISO 15118 for interoperability for many
reasons. A few commenters mentioned that ISO 15118 is a preferred
standard for interoperability because it is an open standard that is in
use both nationally and internationally. Commenters mentioned that ISO
15118 is complementary of other reference manuals referenced in the
proposed rule. Other commenters noted that requiring ISO 15118 is
consistent with regulations already in place in California. Benefits of
ISO 15118 include that it can facilitate V2G and that it is one key to
enabling the use of Plug and Charge technologies.
Other commenters were supportive of referencing conformance to ISO
15118 but recommended additional modifications to the language in this
section of the rule. Several commenters mentioned a need for chargers
to additionally conform to a complementary set of standard-specific
requirements such as PKI in order to achieve interoperability. Other
commenters identify that OpenADR standards should also be considered by
FHWA as part of this suite of standards that contribute to
interoperability. Commenters also pointed out that, in order to achieve
interoperability, ISO 15118 must be integrated into both the chargers
and the EVs. Indeed, many EVs on the market have not yet implemented
ISO 15118. Commenters identified that yet other EVs, those that use
CHAdeMO or Tesla connectors, do not require ISO 15118 for
interoperability features. In light of this, several commenters
recommended that FHWA modify the language in the rule so as to require
that chargers are ISO 15118 ``hardware ready,'' rather than conforming
to ISO 15118.
Other commenters requested that the final rule be broadened to
require communication with all vehicles that have implemented ISO 15118
(not just CCS-compliant vehicles). This would allow for future
interoperability of MD/HD charging even if, as is likely, these
vehicles will not use CCS connectors. One commenter identified that
this would impact low-income communities specifically because of these
communities' increased dependence on public transit which would require
MD/HD charging. Yet other commenters recommended the addition of
language to accommodate interoperability of AC Level 2 charging through
either ISO 15118 with an SAE J1172 connector or through SAE J3068
connectors. The SAE J3068 connectors may possibly in the future provide
for interoperability features to include enabling of Plug and Charge
and V2G, while proposing a lower cost and a greater capability to
address MD/HD needs.
Conversely, FHWA received many comments opposed to the proposed
regulation to conform with ISO 15118. Several commenters characterized
the primary benefits of ISO 15118 as enabling Plug and Charge payment,
which they stated is new and only one of several types of innovative
payment techniques. As aforementioned, several commenters pointed out
that many EVs in the current market do not support power management
through ISO 15118. A few commenters also stated that there are security
concerns with the implementation of ISO 15118 in that it provides a
point of entry for cyber attacks when the charger decrypts and then re-
encrypts signals from the vehicle.
Other commenters point out the shortcomings of ISO 15118 for V2G
purposes, especially because it does not enable V2G for AC Level 2
chargers. In fact, commenters noted that there is limited commercial
availability of AC Level 2 chargers that can conform to ISO
[[Page 12745]]
15118 or that can enable Plug and Charge.
There are also versioning concerns that commenters presented. The
newest version of ISO 15118 (ISO 15118-20) provides the greatest
benefits but is not yet widely implemented nor is it backwards
compatible to the next most recent version in use (ISO 15118-2).
Indeed, several commenters argued that the market is not yet mature
enough for a single protocol, and FHWA should develop a performance
standard instead. These commenters state that a performance standard
would allow for alternatives to Plug and Charge that are not otherwise
provided for through the regulation of ISO 15118. These commenters also
note that months if not years are required in order to coordinate the
ISO 15118 standard amongst EV manufacturers, charging network
providers, and PKI providers. In contrast, FHWA also received several
comments explicitly opposing a performance standard for
interoperability, preferring the minimum standard outlined in the
proposed rule.
FHWA Response: Although many chargers on the market today are not
yet using ISO 15118, FHWA sees value in establishing a national
standard for compliance and has found ISO 15118 to be the most
appropriate standard for this purpose. Therefore, FHWA has maintained a
requirement for full hardware conformance to ISO 15118, including
conformance to ISO 15118-3 and hardware capability for implementation
of both ISO 15118 Parts 2 and 20. A performance standard was not used
since it benefits the entire network to coalesce as quickly and simply
as possible around defined standards in fast-moving technology, which
this final rule creates. Commenters indicated that a limited number of
EVs are currently compliant with ISO 15118-2, and that a larger number
of vehicle models are expected to be compliant with ISO 15118-20 in the
future. The potential to support additional drivers on an undetermined
future timeframe need not delay the near-term improvements to drivers'
experience made possible by implementing ISO 15118 within the initial
chargers installed under the NEVI. Acknowledging the level of effort
required for charger manufacturers that have not yet implemented ISO
15118-2 software, FHWA requires conformance of software to ISO 15118-2
and Plug and Charge capability by one year after the date of
publication of this final rule in the Federal Register.
The FHWA sees value in third-party certification of ISO 15118 but
acknowledges there is currently limited capacity to accomplish it or to
regulate compliance with third party certification.
The FHWA acknowledges the benefits of the OpenADR standard but
notes that several similar standards have been successfully deployed in
the existing EV charging environment, with different electric utilities
requiring, trialing, or considering different standards. It would be
premature to select a single standard for communication between
charging networks and electric utilities or intermediaries at this
time. The FHWA acknowledges the challenges the industry is currently
addressing in identifying appropriate PKIs, but notes that this
challenge is better addressed by the private sector rather than by
regulation. Similar challenges have been appropriately addressed by the
private sector regarding credit card payment and telecommunications.
Charger to Charger-Network Communication and Charging-Network-to-
Charging-Network Communication
Other commenters identified a need to discuss other standards in
this section in addition to ISO 15118. Commenters recommended that FHWA
recognize the interoperable environment created by ISO 15118 in
conjunction with OCPP and OCPI. One commenter noted that OCPP and OCPI
work in conjunction to allow non-ISO 15118 compliant EVs to initiate
and pay for charging.
Commenters recommended that FHWA require third-party certification
of OCPP. Other commenters warned that tools and laboratory facilities
capable of performing that certification are in short supply and that a
third-party certification requirement could create unnecessary delays
to charging station deployment.
FHWA Response: The FHWA also recognizes that OCPP and OCPI play a
role in interoperability and, as such, moved and modified language from
another provision in this final rule (Sec. 680.114) to clarify the
interrelated roles of these three reference documents in
interoperability. (See also the section-by-section analysis of Sec.
680.114 for further discussion of comments received regarding OCPP and
OCPI.) The FHWA sees the improvements in OCPP 2.0.1 over previous
versions as compelling benefits to the EV charging ecosystem, while
also acknowledging the level of effort required for charger
manufacturers and charging network providers to update systems to OCPP
2.0.1. Therefore, this final rule will allow for a transition period
between OCPP 1.6J and 2.0.1, requiring that chargers and charging
networks conform to OCPP 2.0.1 by one year after the date of
publication of this final rule in the Federal Register. The FHWA
believes one year is an appropriate transition period to allow chargers
and charging networks to conform to a standard for software that is
currently available in the marketplace. The FHWA sees value in third-
party certification of OCPP but acknowledges there is currently limited
capacity to accomplish it or to regulate compliance with third party
certification.
Network Switching Capability
A handful of commenters identified that interoperability is not
facilitated through conformance to standards alone but requires that
companies facilitate the efficient and free transfer of infrastructure
from one provider to another at the point of transfer between
contracts.
FHWA Response: The FHWA also recognizes that network switching is
an interoperability and consumer protection concern that implicates the
long-term stewardship of the equipment and station operations overall.
As such, FHWA moved the relevant proposed language from Sec. 680.114
to this section in this final rule.
Section 680.110 Traffic Control Devises or On-Premises Signs Acquired,
Installed or Operated
MUTCD
Several commenters encouraged FHWA to issue the next edition of the
MUTCD so that traffic control devices installed in conjunction with EV
infrastructure projects are consistent with the most current MUTCD
requirements.
Several commenters recommended removing Sec. 680.110 entirely as
the requirements are covered elsewhere in Title 23, Code of Federal
Regulations.
Several commenters suggested more information be incorporated into
advance signing such as number of stations available, power level, and
compatibility with MD/HD vehicles.
FHWA Response: A Notice of Proposed Amendments (NPA) to issue a new
edition of the MUTCD was published at 85 FR 80898 in the December 14,
2020, Federal Register for public comment. The comments received will
inform the rulemaking action and the 11th edition of the MUTCD. The BIL
directs U.S. DOT to update the MUTCD by no later than May 15, 2023.
Section 680.110 includes only references to 23 CFR part 655 and 23 CFR
part 750. Because EV infrastructure will involve private-sector
[[Page 12746]]
and other entities that are less familiar with these provisions than
transportation agencies, there is value in providing a cross-reference
to the information. Sign complexity, information load on drivers, and
ensuring that signs convey a clear, simple meaning are all important
considerations with traffic control devices. The information road users
need to be guided to charging stations is being considered in the
ongoing MUTCD rulemaking.\20\
---------------------------------------------------------------------------
\20\ https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=2125-AF85.
---------------------------------------------------------------------------
Section 680.112 Data Submittal
Quarterly and Annual Data Requirements
Many commenters stated that the proposed data collection
requirements are burdensome, excessive, and unnecessary. Several State
DOTs recommended that the data proposed for collection should be
reviewed to verify its use to the program and future operation of the
charging network so that only data that are necessary for these efforts
is collected. To reduce costs for station providers and State agencies,
data that is necessary to inform continued buildout of the charging
network should be identified and data beyond that necessity should not
be required. Another commenter suggested that FHWA consider which sets
of data are critical for the long-term success of the NEVI program and
which data are unnecessary or could be collected only in the first
year.
Many commenters suggested that the data elements identified for
quarterly reporting should be changed to annual. It was requested that
FHWA review the proposed quarterly data to determine if it is efficient
and reasonable to collect on a quarterly basis.
Many commenters recommended that standardized methods be
established for data collection, validation, and utilization. Specific
ideas included standardized templates for reporting and efficient,
automated processes for data submission. Some commenters recommended a
data collection system built upon the current system in use for the
U.S. DOE's Alternative Fuels Data Center which is already in use by
States and could be replicated or extended for use for NEVI data
submission.
Several commenters suggested that reporting be aligned with annual
reporting requirements already in place by certain States, such as
California, and noted that the California Air Resources Board EV
Charging Station Open Access Regulation has established fairly
comprehensive data collection requirements through a specified template
that is submitted annually during the first quarter of the year. The
commenters suggested that FHWA review California's submission timelines
and templates and align them to the extent possible.
Several commenters suggested a working group or technical committee
be established to work out the details of data collection, efficient
reporting methods, and business confidentiality concerns.
A few commenters suggested some additional data elements. One of
these recommended alignment with the existing data collection
requirements of the California Electric Vehicle Infrastructure Project.
The commenter stated that aligning these requirements with NEVI will
leverage industry-accepted standards, prevent duplicative data
collection efforts, and enhance the evaluation of key program
parameters. Another comment recommended collecting data associated with
each charging session and at each station on a monthly basis to more
accurately measure reliability experienced by customers to respond more
quickly in the short-term and better understand and correct reliability
problems over time. A few commenters noted the need to collect data
related to the total cost charged to customers. Other commenters said
the data requested on uptime is opaque and requested additional data to
allow the verification of uptime metrics reported.
Many private sector commenters were concerned that some of the
required data are CBI and competitively sensitive. Sections
680.112(b)(6)-(b)(9) of the proposed rule were specifically noted by
several commenters, with the data on maintenance costs (paragraph 7)
and acquisition costs (paragraph 8) of particular concern. If data that
may be CBI is necessary, strong parameters were recommended for
collection, storage, and analysis, including aggregating and
anonymizing sensitive data prior to dissemination or publication.
For Sec. 680.112(b)(8) (currently Sec. 680.112(c)(4)), related to
grid connection and upgrade cost on the utility side of the electric
meter, several commenters noted the wide variability in how these costs
are categorized, set, and collected across States and electric
companies and how that limits the usefulness in making direct
comparisons. The cost data may be useful in comparing project costs for
EV charging stations within a particular electric company service area
but could potentially be misleading when used to make comparisons
between electric companies. Other commenters spoke to challenges
related to collecting utility cost data and questioned the need for
data reporting of utility costs beyond what is already reported to
utility commissions. Commenters from utilities recommended streamlining
reporting by using high-level cost categories and suggested (1) system
upgrades, (2) distribution work, and (3) new service work.
FHWA Response: The FHWA reviewed and revised the proposed data
elements to ensure that the data required are the elements most
critical for managing and improving the NEVI Formula Program and
federally funded EV charging initiatives. In order to strike the
correct balance, considering the burden of data collection against the
need to continue to provide a method of monitoring the success of the
NEVI Formula Program, FHWA was careful in recrafting Sec. 680.112 so
as to retain the critical data while reducing the burden on States and
other direct recipients. As a result, selected data elements were
deleted or are required at a less frequent interval in the language in
the final rule. As specified below, one data element was deleted from
the former Sec. 680.112(b), one data element was moved from the list
of required quarterly submittals in the former Sec. 680.112(b) to the
revised Sec. 680.112(b) which now requires an annual data submittal,
two data elements were moved from the list of required quarterly
submittals in the former Sec. 680.112(b) to the revised Sec.
680.112(c) which now requires a one-time data submittal, and one data
element was moved from the list of required annual data submittals in
the former Sec. 680.112(c) to the revised Sec. 680.112(c) which now
requires a one-time data submittal. Other data elements were clarified
through language revision or by separating into more specific elements.
The former Sec. 680.112(b) was moved from a quarterly submittal
requirement to a one-time submittal requirement under the revised Sec.
680.112(c) and, for clarification, was separated into two separate
required data fields (revised as Sec. 680.112(c)(3) and Sec.
680.112(c)(4)).
After streamlining data requirements, a few data field requirements
were deemed critical and also added to the quarterly data submittals
through Sec. 680.112(a) to include Sec. 680.112(a)(2), Sec.
680.112(a)(6), and Sec. 680.112(a)(8) to increase the clarity of the
data submittal request and to address comments suggesting additional
data fields.
The FHWA acknowledges the sensitivity of some of the data requested
and clarified in this final rule for quarterly, annual, and one-time
data submissions that any data made public
[[Page 12747]]
will be aggregated and anonymized to protect confidential business
information. Although this rule does not include a requirement to show
validation of the data submitted, the data provided will be publicly
displayed and should be able to be verified if requested. The FHWA
reorganized this section to remove the general applicability paragraph
and insert specific applicability as the first sentence to Sec.
680.112(c) and (d). For Sec. 680.112(a) and (b), FHWA has included
this data requirement for all NEVI Formula Program projects and
projects funded under Title 23, U.S.C., including any EV charging
infrastructure project funded with Federal funds that is treated as a
project on a Federal-aid highway. Although these two paragraphs were
limited in the proposed rule to NEVI Formula Program projects, FHWA
believes the importance of this data spans beyond just NEVI Formula
Program projects and the intent of BIL is to collect useful and
meaningful data for all EV charging stations where Federal funding is
used. For Sec. 680.112(a), FHWA maintains that the quarterly frequency
of the data submission is necessary for on-going monitoring and
analysis of use and reliability. Most quarterly data elements can be
transmitted automatically from the chargers.
The FHWA added a qualifier to the data field ``charging station
location identifier'' to require that this identifier is the same
charging station name or identifier used to describe the same station
in the data set made available to third parties in Sec. 680.116(c)(1).
An additional data field was added to identify the charging port in
use, so that data describing charging sessions can be linked to the
port that conducted the session. This field must be consistent with the
charging port identifier in Sec. 680.116(c)(2). The requirement that
identifiers be consistent across data sets is necessary to allow the
Joint Office to join the two data sets to perform analysis necessary to
manage and improve the NEVI Formula Program. This requirement also
streamlines data reporting and avoids requiring redundant data fields
in the quarterly data set.
The FHWA added payment method per session to Sec. 680.112(a) to
provide insight into the types of payment methods used by EV charging
customers. This information is necessary to inform policy updates
related to required payment methods.
In response to commenters requesting means of verifying uptime
measurements submitted by charging station operators or charging
network providers, FHWA added the requirement to report two data fields
that underlie the uptime calculation, T_outage and T_excluded, in
addition to the uptime metric itself.
Given the inherent difficulty of collecting electricity cost
information that is isolated to electricity for charging vehicles, due
to the uncertainty of separately metered stations, FHWA removed the
requirement for reporting electricity cost from Sec. 680.112(b)(6) and
instead will estimate electricity cost based on charging session data.
Regarding recurring maintenance and repair cost information (Sec.
680.112(b)(1)), FHWA modified the frequency of reporting to an annual
basis.
Regarding submission of acquisition costs (formerly Sec.
680.112(b)(8)) and distributed energy resource installed capacity
(formerly Sec. 680.112(b)(9)), FHWA changed these items to be a one-
time submission per charging station that occurs annually for charging
stations not yet reported, rather than quarterly. The FHWA also
included clarification as to what programs this data submittal is
applicable to by inserting language that specifies that this paragraph
applies only to both the NEVI Formula Program projects and grants
awarded under 23 U.S.C. 151(f) for projects that are for EV charging
stations located along and designed to serve the users of designated
AFCs. Although the data submittal under this paragraph was limited in
the proposed rule to NEVI Formula Program projects, FHWA believes the
importance of this data spans beyond just NEVI Formula Program projects
and the intent of BIL is to collect useful and meaningful data for all
EV charging stations that are along and designed to serve the users of
designated AFCs where Federal money is used. Additionally, FHWA
streamlined and clarified ``aggregate grid connection and upgrade cost
on the utility side of the electric meter'' to the more standardized
utility categories of (1) total distribution costs and (2) total
service costs. This final rule clarifies that only the costs paid to
the electric utility as part of the project need to be reported.
The due date for annual data was specified as on or before March 1,
beginning in 2024. This aligns with some State reporting cycles and
provides time between annual data reporting and submission of State EV
Infrastructure Deployment Plan updates.
To facilitate the collection of data required in this section, and
in accordance with its Congressional mandate, the Joint Office will
establish and manage a national database and analytics platform that
will streamline submission of data from States and their contractors.
Using the platform, States will be able to produce reports, conduct
analysis, and access data for their program assessment activities. The
platform will also provide a public-facing dashboard for communication
of aggregated, anonymized information.
Community Engagement Outcomes
Several commenters suggested that community engagement data be
incorporated into the annual State EV Infrastructure Deployment Plan
updates, reducing the amount of staff time required to create a
separate reporting document. Metrics and the status of community
engagement activities could be tied to what the States proposed in
their Plan and included in the Plan update. Several commenters also
supported the Community Engagement Outcomes Report overall and
suggested a few ways in which the report could be developed, including
suggestions to: (1) condition funding for future years on meeting
robust engagement requirements, including community engagement and
equity and inclusion efforts by States; (2) describe how community
engagement informed station siting and operations; (3) describe how
workforce opportunities were integrated into community engagement
efforts; and (4) describe engagement with disabled community members.
A few commenters recommended a similar approach for the information
related to private entity participation in State or local business
opportunity certification programs (Sec. 680.112(c)(2) in the NPRM),
in terms of including it in the annual State EV Infrastructure
Deployment Plan update.
FHWA Response: Community Engagement Outcomes was modified to
require inclusion in the annual State EV Infrastructure Deployment
Plan, rather than as a separate report. Content expectations will be
included and updated in the annual Plan guidance. This will allow the
type of information and data from States to be the most beneficial for
informing and improving community engagement efforts and outcomes. The
FHWA also clarified that this paragraph is only applicable to NEVI
Formula Program projects.
Section 680.114 Charging Network Connectivity of Electric Vehicle
Charging Infrastructure
Charger-to-Charger Network Communication
The FHWA received many comments regarding the proposed language in
Sec. 680.114. In general, commenters were
[[Page 12748]]
supportive of the proposed rule as written. Commenters were generally
supportive of the language under the proposed ``Charger-to-Charger
Network,'' identifying that OCPP allows for standard communications
between chargers and central control at charging networks. The OCPP was
supported because of its ability to allow site hosts to effectively
manage both chargers and charging activity and its ability to allow for
the appropriate collection of data in order to create a seamless and
consistent user experience. Multiple commenters pointed out that the
recently published OCPP version 2.0.1 has substantial benefits over its
predecessor, OCPP 1.6J, with regard to cybersecurity, planned support
for ISO 15118, and other functionalities. Another commenter stated that
imposing a requirement for OCPP 2.0.1, instead of requiring OCPP 1.6 or
later, would seem to offer no discernable benefit. One commenter
recommended that this section be modified to explicitly allow end user
load monitoring and management.
The FHWA also received a few comments in opposition of pointing to
OCPP as the preferred standard. These commenters stated that OCPP was
relatively new and choosing a standard would be premature at this time.
Many commenters noted that the proposed rule requires implementation of
OCPP version 2.0.1 and explained that most EV charging providers are
currently operating with OCPP version 1.6J. They requested a transition
period be allowed in this final rule to give industry time to update
their systems to implement OCPP 2.0.1. Other commenters recommended
that OCPP 2.0.1 be required immediately to realize its benefits more
quickly.
FHWA Response: The FHWA agrees with commenters that, although there
is some diversity among standards currently used by the industry, OCPP
and OCPI are appropriate references for this section and the industry
is moving towards these references as de-facto standards. However,
based on comments FHWA found it more logical to include regulations
referencing OCPP and OCPI in Sec. 680.108, and therefore moved
references to these standards to this section under
``interoperability.'' Note that FHWA allows for a one-year transition
period for conformance to the latest versions of OCPP and OCPI to allow
chargers and charging networks sufficient time to conform to a standard
for software that is not currently widely used but is currently
available in the marketplace. (See also the section-by-section analysis
of Sec. 680.108 for further discussion of comments received regarding
OCPP and OCPI.)
The FHWA does not feel that it is critical to mandate end user load
monitoring and management in the minimum standards provided for in this
rule.
Charging-Network-to-Charging-Network Communication
The FHWA also received comments on ``Charging-Network-to-Charging
Network.'' Commenters were generally supportive of the proposed
requirement to allow for roaming in order to allow EV drivers to
seamlessly locate and charge at different charging stations managed by
different networks without different memberships or toggling between
different mobile applications. Commenters were generally supportive of
the language in the proposed rule and the reference to OCPI which, it
was noted, is currently the standard used in California. One commenter
did note, however, that there is no existing credentialing system
applicable to charging network to charging network payment processing.
This commenter took specific issue with the use of the term
``credential'' in the context of charging-network-to-charging-network
communication.
FHWA Response: In this final rule, ``credentials'' was replaced
with ``method of identification'' to clarify the requirement that
charging-network-to-charging-network communication allow roaming.
Charging-Network-to-Grid Communication
The FHWA received a few comments specific to ``Charging-Network-to-
Grid Communication.'' Most commenters were supportive of the language
in the proposed rule as written. One commenter offered that the
benefits of this regulation were minimal because of proposed
requirements for power levels which dampened opportunities for
effective power demand management activities which would otherwise be
governed by this section.
Another commenter recommended that FHWA replace references to
``network'' with ``back-end software'' because they felt network was
too ambiguous.
FHWA Response: Comments addressing the proposed language in this
section were addressed by FHWA in other relevant sections as follows.
The FHWA modified the power level requirements under Sec. 680.106(d)
to allow for power demand management amongst applicable AC Level 2
chargers. By allowing for power demand management elsewhere in the
final rule, the language provided under this section becomes more
important and addresses the comments received that the benefits of the
regulation were minimal because power demand management was not allowed
under the proposed rule.
The FHWA also considered whether the reference to a ``charging
network'' was too ambiguous as used under this requirement and
determined that the charging network is the appropriate reference for
which secure communications should be regulated for charging network to
grid communication. Charging network is defined under Sec. 680.104 and
identifies specifically a collection of interconnected chargers. This
regulation is meant to ensure that collections of chargers are
themselves able to securely communicate with the grid, ensuring secure
communications within the entire charging environment. This is best
accomplished where FHWA specifies the secure communications of
collections of interconnected chargers with the grid, not generic
``back-end software'' with the grid.
Based on this analysis, FHWA made no changes to this section in the
final rule.
Disrupted Network Connectivity
The FHWA also received comments that generally applied to Sec.
680.114. Many commenters pointed out the importance of connectivity for
charger operations to enable remote diagnostics, remote start, data
collection, payment processing, power distribution and other critical
activities. Several commenters recommended FHWA mandate high-speed (4G
LTE) broadband connectivity at sites. Other commenters asked how to
accommodate charging stations in areas with limited cellular and
internet connectivity and recommended that FHWA address this concern in
this final rule. As described in Sec. 680.106(f), commenters
recommended that chargers be required to continue to operate in the
event of lost communication.
The FHWA also received comments that were generally supportive of
the proposed Sec. 680.114 as written, but recommended language
clarifications. One commenter recommended that FHWA modify language to
clarify that network connectivity obligations rest with the station
operator and not the charger.
FHWA Response: The FHWA agrees that connectivity is a particular
challenge in remote areas, but notes that, outside of temporary
disruptions, connectivity is critical for the functioning of the
charging environment and therefore encourages States and other
designated recipients to work
[[Page 12749]]
closely with contractors in siting and development of charging stations
to ensure sufficient broadband and cellular connectivity availability.
The FHWA notes that there are satellite-based connectivity solutions
available that may address concerns in remote areas. In the event of
communication disruption, FHWA agrees that there is a need to require
charging capabilities when network connectivity has been lost. This is
important to ensure a positive customer experience and to avoid
stranding drivers, especially during times of emergency. The FHWA has
therefore included modifications in the language in this final rule to
require chargers to function when communication is lost, sometimes
referred to as ``defaulting to charge.''
With regard to recommended language clarifications, the proposed
requirement referenced chargers to indicate a correlation with
function, not obligation. The obligation of the requirements will fall
to the States and other designated recipients and parties contractually
obligated to the States and other designated recipients.
Section 680.116 Information on Publicly Available Electric Vehicle
Charging Infrastructure Locations, Pricing, Real-Time Availability, and
Accessibility Through Mapping Applications
Pricing ($/kWh)
Many commenters noted that $/kWh pricing is ideal and would be the
clearest and most understandable way to communicate price to customers.
However, State laws in several States prohibit this, allowing pricing
in $/kWh only for utilities. The pricing structure of $/minute was
identified as another option with the idea of using several tiers of
price for a range of power levels, to account for different vehicle
charge rates and variable charge rates within a charging session.
Several commenters recommended this or other alternatives to provide an
option for those States that have State law prohibitions of pricing by
$/kWh.
A State DOT noted that in 2012 their State Legislature required the
State to adopt rules to provide definitions, methods of sale, labeling
requirements, and price-posting requirements for charging stations to
allow for consistency for consumers and the industry. The State has
been using the National Institute of Standards and Technology
requirements for EV charging infrastructure since 2014 when weights and
measures officials adopted the kilowatt-hour as the unit of measurement
for method of sale. Their recommendation was that all States
communicate price in a standard dollar per kilowatt-hour value but the
comment was indicative that some work needs to be done at the State
level to make this possible.
FHWA Response: A single, uniform, nationwide communication of
pricing to customers, regardless of where they are travelling in the
United States, is in the national interest; therefore $/kWh was
retained. Liquid fuels are priced in a single, nation-wide unit of
price per gallon that is simple and clear to customers. So, too, here a
simple, understandable communication to customers of price with a
common unit is important for transparency and customer protections. The
FHWA recognizes that this transition may require changes in some States
choosing to receive NEVI funds, and FHWA has allowed one year from the
date of rule publication in the Federal Register for potentially
impacted States to determine how to proceed.
Price Transparency
There were many comments related to price transparency, demand
charges for electricity, and price gouging. Several commenters
recommended that all fees be clearly identified to customers at the
charging site, without reliance on an application or website. In
addition to the charging price, other examples of fees include parking/
dwelling fees, connection fees, and fees charged for occupying the site
after charging is complete. One commenter suggested stabilizing
customers' expectations by not changing the $/kWh as frequently as
electricity prices may be fluctuating on the open market by setting a
daily price.
FHWA Response: This final rule was changed in regard to how costs
are communicated, requiring that the $/kWh price to charge be
transparently communicated prior to initiating a charge and that any
other fees, such as fees charged for occupying the site after charging
is complete, be clearly explained via an application, website, or other
means in a manner of like prominence to the price anytime the price is
displayed. Communication of fees via applications is commonly used,
currently, and the requirement to share pricing structure with third
party software developers has been retained. Display of fees and
payment information cannot be membership-based, and the provision of a
publicly available website is also encouraged. Parking fees and time
limits may also be communicated with signage or other displays.
Uptime Calculation
Many comments were received regarding the proposed 97 percent
uptime requirement, with most commenters supportive of that threshold.
A State DOT suggested that all NEVI stations comply with a requirement
for robust maintenance and repair plans to accompany charger
installations. These plans could demonstrate how each charging port at
a station, and the station overall, will achieve uptime standards
through routine maintenance and timely repairs.
Several commenters requested that uptime be calculated on a per-
station basis, rather than on a per-port basis, stating that this
incentivizes building larger stations to ensure a minimum number of
charging ports are operational. Another commenter said the precision of
the equation should be minutes, not hours. Other commenters expressed
that the phrase ``the charging port successfully dispenses electricity
as expected'' is incomplete because it does not define what is meant by
``as expected.''
Several commenters noted that scheduled maintenance should not
count against uptime, especially if that maintenance occurs during
periods of low utilization. Others recommended additional exclusions
for situations outside the station operator's control such as
vandalism, emergency scenarios, certain weather factors, etc. One
commenter suggested the first year of the program be a test year
because enforcing the uptime requirement will be complex. After
collecting data for one year to better understand the factors that
impact uptime, more stringent standards could go into effect in the
remaining years of the program.
FHWA Response: The definition of when a charger is considered
``up'' was updated in this final rule to remove the phrase ``as
expected'' and instead stipulate that charging ports must dispense
electricity in accordance with requirements for minimum power level
found in Sec. 680.106(d). The calculation of uptime in this final rule
remains at the per-port level, as high reliability at the port level is
important to improve customer experience and confidence in charging
infrastructure. On the recommendation of a commenter, the equation was
updated to calculate uptime to the nearest minute, rather than hours,
to increase the precision of the calculation and make calculation more
uniform across all charging station operators and charging network
providers.
[[Page 12750]]
The proposed calculation for charging port uptime included the
variable T_excluded = total hours of outage in previous year for
reasons outside the charging station operator's control. The FHWA
agrees with the recommendation to explicitly define the conditions when
downtime can be excluded from the calculation of uptime. The FHWA also
sees value in specifying additional conditions than those listed in the
NPRM. Vandalism, natural disasters, and limited hours of operation were
added as allowable reasons for exclusion. Proposed language stating
``outages caused by the vehicle'' was updated for precision to
``failure to charge or meet the EV charging customer's expectation for
power level due to the fault of the vehicle.'' Scheduled maintenance
was also added, and charging station operators are encouraged to
conduct regular preventative maintenance during period of low demand to
minimize disruption to customers. As a performance standard, the
methods for achieving the port uptime threshold will not be prescribed
by FHWA. Uptime reporting will not be delayed.
The FHWA acknowledges that the uptime calculation does not address
all categories of failure or ways that chargers may fail to provide a
satisfying customer experience. Alternate or additional approaches to
regulating charging reliability could include requiring chargers to
successfully complete a high percentage of charging sessions or to
successfully initiate charging sessions after a minimal number of
attempts. However, insufficient data are available to set reasonable
thresholds for such requirements. Instead, FHWA modified requirements
for data reporting in Sec. 680.112(b) to collect error code data to
better understand the nature and frequency of charging session
problems.
The FHWA also acknowledges that enforcement of the uptime
requirement will be complex; however, in contrast to a recommendation
in the comments, FHWA does not see sufficient benefit in delaying the
uptime requirement as uptime is a key complaint received regarding
those chargers existing prior to the implementation of this final rule.
The FHWA would prefer to immediately implement this important
regulation, acknowledging that enforcement techniques will evolve over
time.
Third-Party Data Sharing
Many private sector commenters expressed concern about unfair
competition if charging network data sharing is overly broad.
Commenters noted that making the data freely available will, in effect,
translate into charging networks subsidizing competitors' new business
models that could then unfairly attract drivers to use their mobile
applications and payment/subscription services. Another concern was
that real-time operational data on a per-session basis would allow
competitors to determine rate of utilization, proprietary business
information that operators should not be required to share in the
competitive market. Other commenters said that charging network
providers already send most of this data to the Alternative Fuel Data
Center (AFDC) so this requirement would lead to redundant work.
FHWA Response: The data for third-party data sharing were reviewed
to identify which elements are necessary for improving customer
experience. Some data elements were removed as unnecessary for that
purpose, such as `Date when charging station first became available for
use' and `Physical dimensions of the largest vehicle that can access a
charging port at the charging station.' A few necessary elements were
added, such as hours of operation since this final rule only requires
those stations along AFCs to be open 24/7. Other data elements added
include ``unique port identifier,'' ``accessibility by vehicle with
trailer (pull-through stall),'' and ``charging station access type
(public or limited to commercial vehicles). The remaining data elements
were re-organized into nine, more logical categories. This also
clarifies data that needs to be provided at the station level versus
the port level. The concerns about sharing data with third parties is
noted, but an improved customer experience is critical and the sharing
of data is expected to increase business at charging stations. The FHWA
acknowledges that the required submittal of some of these data are
duplicative of optional data submitted through the AFDC, but because
some of the data submitted to the AFDC contains data that is more
commercially sensitive, a reduced data set for third-parties focused on
customers was identified for Sec. 680.116(c), rather than a single
data set for both purposes.
Section 680.118 Other Federal Requirements
Disadvantaged Business Enterprise Program
In further internal review of the proposed regulation text, FHWA
found a need to clarify that the Disadvantaged Business Enterprise
(DBE) program does not apply to NEVI formula funds but may apply in
some other instances. The FHWA modified the language in this final rule
to identify situations where the DBE program may apply to projects
subject to this final rule.
Build America, Buy America
Many comments were received on Build America, Buy America (BABA)
and Buy America, which includes requirements for certain items
permanently incorporated into a project to be produced domestically.
Several commenters requested that FHWA provide more clarity and timely
information on BABA and Buy America requirements for chargers funded
through NEVI and other Title 23, U.S.C. programs including the process
needed to demonstrate compliance. Commenters recommended that FHWA
monitor the availability of U.S. made products, ensure that there is
both adequate availability and competition, and issue waivers or waiver
extensions, as appropriate. Several commenters recommended an
incremental approach, particularly during the first years of the
program, to ensure that the industry can achieve full compliance
without significant delays. Others suggested that FHWA provide and
maintain a list of approved manufacturers and products that comply with
BABA and Buy America.
Several commenters expressed support for BABA and Buy America
requirements, citing benefits to the U.S. economy and workers and
reducing U.S. vulnerability to global supply chain disruptions.
FHWA Response: A `Notice of Proposed Waiver of Buy America
Requirements for Electric Vehicle Chargers' was published at 87 FR
53539 in the August 31, 2022, Federal Register. The Notice requested
comments on a proposal to waive certain Buy America requirements under
FHWA regulations and the BABA for the steel, iron, manufactured
products, and construction materials in EV chargers in a manner that,
over a deliberate transitional period, reduces the scope of the waiver.
Comments closed on September 30, 2022, and will inform any future
actions related to Buy America and chargers.
American With Disabilities Act
Several commenters submitted suggestions to improve charging
station accessibility for persons with disabilities. Other commenters
requested clarification on ADA requirements at charging stations.
FHWA Response: The U.S. Access Board published ``Design
Recommendations for Accessible Electric Vehicle Charging Stations'' in
[[Page 12751]]
2022. Until any formal rules are proposed and finalized by the U.S.
Access Board, FHWA recommends that charging stations be designed and
constructed according to the U.S. Access Board Recommendations to
demonstrate ADA compliance and optimize usability for persons with
disabilities.
Severability
Congress created the NEVI program by statute and directed FHWA to
establish the minimum standards and requirements for NEVI-funded
projects, as outlined in this final rule. The purpose of this rule is
to operate holistically in addressing a panoply of issues necessary to
ensure efficient operation of this nationwide network. However, FHWA
recognizes that certain provisions focus on unique topics. Therefore,
FHWA finds that the various provisions of this final rule are severable
and able to operate functionally if severed from each other. In the
event a court were to invalidate one or more of this final rule's
unique provisions, the remaining provisions should stand, thus allowing
this congressionally mandated program to continue to operate.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
The Office of Management and Budget (OMB) has determined that this
rulemaking would be a significant regulatory action within the meaning
of E.O. 12866, ``Regulatory Planning and Review'' 58 FR 51735 (Oct. 4,
1993).
The regulatory impact analysis (RIA) supports this proposed
regulation and estimates the costs and benefits associated with
establishing minimum standards and requirements. All of the topics for
the minimum standards and requirements are required by BIL. To estimate
these costs, the PRIA compared the costs and benefits of proposed
provisions to the costs and benefits of the options States and other
designated recipients would likely choose for their own charger
programs in the absence of the rule. In many cases, the analysis found
that States and other designated recipients would likely choose the
same requirements that are found in the proposed rule. While many of
the costs and benefits in the proposed rule are difficult to quantify,
FHWA believes that the benefits justify the costs. The full regulatory
impact analysis is available in the docket.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this rule on small
entities and has determined that it is not anticipated to have a
significant economic impact on a substantial number of small entities.
The rule would impact directly State governments, which are not
included in the definition of small entity set forth in 5 U.S.C. 601.
Small entities that may be impacted indirectly by a rulemaking are not
subject to analysis under the Regulatory Flexibility Act, see Mid-Tex
Electric Cooperative, Inc. v. Federal Energy Regulatory Commission, 773
F.2d 327 (D.C. Cir 1985). Therefore, FHWA certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.
Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule would not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $168
million or more in any one year (2 U.S.C. 1532). In addition, the
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act
excludes financial assistance of the type in which State, local, or
Tribal governments have authority to adjust their participation in the
program in accordance with changes made in the program by the Federal
Government. The Federal-aid highway program permits this type of
flexibility.
Executive Order 13132 (Federalism Assessment)
This rule has been analyzed in accordance with the principles and
criteria contained in E.O. 13132, ``Federalism'' 64 FR 43255 (Aug. 10,
1999), and FHWA has determined that this rule would not have sufficient
federalism implications to warrant the preparation of a federalism
assessment. Regardless, FHWA could foresee the possibility of a
conflict between Sec. 680.116's condition that pricing be displayed in
$/kWH and the laws of some States. As such, in accordance with section
4(d) of E.O. 13132, FHWA has, to the extent practicable, consulted with
appropriate State and local officials in an effort to avoid any such
conflict. The FHWA weighed those interests carefully in promulgating
Sec. 680.116. That section represents the best balance possible of
State interests with the need to present a consistent, transparent, and
easily-recognized nationwide pricing approach for EV charging.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The FHWA has determined that
this rule contains collection of information requirements for the
purposes of the PRA. This rule identifies minimum standards and
requirements for the implementation of NEVI Formula Program projects
and projects for the construction of publicly accessible EV chargers
that are funded with funds made available under Title 23, U.S.C.,
including any EV charging infrastructure project funded with Federal
funds that is treated as a project on a Federal-aid highway. The
collection of quarterly, annual, one-time and real-time data in support
of 23 CFR 680.112(a), 23 CFR 680.112(b), 23 CFR 680.112(c), 23 CFR
680.112(d), and 23 CFR 680.116(c) is covered by OMB Control No. 2125-
0674.
The FHWA has analyzed this proposed rule under the PRA and has
determined the following:
Respondents: 52 State DOTs and awardees of grants under 23 U.S.C.
151(f).
Frequency: Quarterly reporting (23 CFR 680.112(a)). Annual
reporting (23 CFR 680.112(b) and 23 CFR 680.112(d)). Real-time
reporting (23 CFR 680.116(c)). (23 CFR 680.112(c)).
Estimated Average Burden per Response: Approximately 58 hours
annually to complete, maintain, and submit requested data.
Estimated Total Annual Burden Hours: Approximately 10,816 hours
annually.
National Environmental Policy Act
The FHWA has analyzed this rule pursuant to the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
has determined that it is categorically excluded under 23 CFR
771.117(c)(20), which applies to the promulgation of rules,
regulations, and directives. Categorically excluded actions meet the
criteria for categorical exclusions under the Council on Environmental
Quality regulations and under 23 CFR 771.117(a) and normally do not
require any further NEPA approvals by FHWA. This rule would establish a
regulation on minimum standards and requirements for the NEVI Formula
Program as directed by BIL to provide funding to States to
[[Page 12752]]
strategically deploy EV charging infrastructure and to establish an
interconnected network to facilitate data collection, access, and
reliability. The FHWA does not anticipate any adverse environmental
impacts from this rule; no unusual circumstances are present under 23
CFR 771.117(b).
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this rule in accordance with the principles
and criteria contained in E.O. 13175, ``Consultation and Coordination
with Indian Tribal Governments'' 65 FR 67249 (Nov. 9, 2000). The rule
would establish a regulation on minimum standards and requirements for
the NEVI Formula Program to provide funding to States to strategically
deploy EV charging infrastructure and to establish an interconnected
network to facilitate data collection, access, and reliability. This
measure applies to States that receive Title 23, U.S.C. Federal-aid
highway funds, and it would not have substantial direct effects on one
or more Indian Tribes, would not impose substantial direct compliance
costs on Indian Tribal governments, and would not preempt Tribal laws.
Accordingly, the funding and consultation requirements of E.O. 13175 do
not apply and a Tribal summary impact statement is not required.
Executive Order 12898 (Environmental Justice)
E.O. 12898, ``Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations'' 59 FR 7629 (Feb. 16,
1994), requires that each Federal agency make achieving environmental
justice part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minorities and low-income populations. The FHWA has determined that
this rule does not raise any environmental justice issues.
Congressional Notification
As required by 5 U.S.C. 801, FHWA will report to Congress on the
promulgation of this final rule before its effective date. The report
will state that it has been determined that this rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Regulation Identifier Number
A RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in April and October of each year.
The RIN contained in the heading of this document can be used to cross
reference this action with the Unified Agenda.
List of Subjects in 23 CFR Part 680
Grant programs--transportation, Highways and roads, Reporting and
recordkeeping requirements, Transportation.
Issued under authority delegated in 49 CFR 1.81 and 1.85.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
0
In consideration of the foregoing, FHWA amends Title 23, CFR chapter I,
subchapter G by adding part 680, to read as follows:
SUBCHAPTER G--ENGINEERING AND TRAFFIC OPERATIONS
PART 680--NATIONAL ELECTRIC VEHICLE INFRASTRUCTURE STANDARDS AND
REQUIREMENTS
Sec.
680.100 Purpose.
680.102 Applicability.
680.104 Definitions.
680.106 Installation, Operation, and Maintenance by Qualified
Technicians of Electric Vehicle Charging Infrastructure.
680.108 Interoperability of Electric Vehicle Charging
Infrastructure.
680.110 Traffic Control Devices or On-Premises Signs Acquired,
Installed, or Operated.
680.112 Data Submittal.
680.114 Charging Network Connectivity of Electric Vehicle Charging
Infrastructure.
680.116 Information on Publicly Available Electric Vehicle Charging
Infrastructure Locations, Pricing, Real-Time Availability, and
Accessibility Through Mapping Applications.
680.118 Other Federal Requirements.
Authority: 23 U.S.C. 109, 23 U.S.C. 315; Pub. L. 117-58, title
VIII of division J.
Sec. 680.100 Purpose.
The purpose of this part is to prescribe minimum standards and
requirements for projects funded under the National Electric Vehicle
Infrastructure (NEVI) Formula Program and projects for the construction
of publicly accessible electric vehicle (EV) chargers that are funded
with funds made available under Title 23, United States Code, including
any EV charging infrastructure project funded with Federal funds that
is treated as a project on a Federal-aid highway.
Sec. 680.102 Applicability.
Except where noted, these regulations apply to all NEVI Formula
Program projects as well as projects for the construction of publicly
accessible EV chargers that are funded with funds made available under
Title 23, United States Code, including any EV charging infrastructure
project funded with Federal funds that is treated as a project on a
Federal-aid highway.
Sec. 680.104 Definitions.
AC Level 2 means a charger that operates on a circuit from 208
volts to 240 volts and transfers alternating-current (AC) electricity
to a device in an EV that converts alternating current to direct
current to recharge an EV battery.
Alternative Fuel Corridor (AFC) means national EV charging and
hydrogen, propane, and natural gas fueling corridors designated by FHWA
pursuant to 23 U.S.C. 151.
CHAdeMO means a type of protocol for a charging connector interface
between an EV and a charger (see www.chademo.com). It specifies the
physical, electrical, and communication requirements of the connector
and mating vehicle inlet for direct-current (DC) fast charging. It is
an abbreviation of ``charge de move'', equivalent to ``charge for
moving.''
Charger means a device with one or more charging ports and
connectors for charging EVs. Also referred to as Electric Vehicle
Supply Equipment (EVSE).
Charging network means a collection of chargers located on one or
more property(ies) that are connected via digital communications to
manage the facilitation of payment, the facilitation of electrical
charging, and any related data requests.
Charging network provider means the entity that operates the
digital communication network that remotely manages the chargers.
Charging network providers may also serve as charging station operators
and/or manufacture chargers.
Charging port means the system within a charger that charges one
EV. A charging port may have multiple connectors, but it can provide
power to charge only one EV through one connector at a time.
Charging station means the area in the immediate vicinity of a
group of chargers and includes the chargers, supporting equipment,
parking areas adjacent to the chargers, and lanes for vehicle ingress
and egress. A charging station could comprise only part of the property
on which it is located.
Charging station operator means the entity that owns the chargers
and supporting equipment and facilities at one or more charging
stations. Although this entity may delegate responsibility for certain
aspects of charging station
[[Page 12753]]
operation and maintenance to subcontractors, this entity retains
responsibility for operation and maintenance of chargers and supporting
equipment and facilities. In some cases, the charging station operator
and the charging network provider are the same entity.
Combined Charging System (CCS) means a standard connector interface
that allows direct current fast chargers to connect to, communicate
with, and charge EVs.
Community means either a group of individuals living in geographic
proximity to one another, or a geographically dispersed set of
individuals (such as individuals with disabilities, migrant workers, or
Native Americans), where either type of group experiences common
conditions.
Connector means the device that attaches an EV to a charging port
in order to transfer electricity.
Contactless payment methods means a secure method for consumers to
purchase services using a debit card, credit card, smartcard, mobile
application, or another payment device by using radio frequency
identification (RFID) technology and near-field communication (NFC).
Cryptographic agility means the capacity to rapidly update or
switch between data encryption systems, algorithms, and processes
without the need to redesign the protocol, software, system, or
standard.
Direct Current Fast Charger (DCFC) means a charger that enables
rapid charging by delivering direct-current (DC) electricity directly
to an EV's battery.
Disadvantaged communities (DACs) mean census tracts or communities
with common conditions identified by the U.S. Department of
Transportation and the U.S. Department of Energy that consider
appropriate data, indices, and screening tools to determine whether a
specific community is disadvantaged based on a combination of variables
that may include, but are not limited to, the following: low income,
high and/or persistent poverty; high unemployment and underemployment;
racial and ethnic residential segregation, particularly where the
segregation stems from discrimination by government entities;
linguistic isolation; high housing cost burden and substandard housing;
distressed neighborhoods; high transportation cost burden and/or low
transportation access; disproportionate environmental stressor burden
and high cumulative impacts; limited water and sanitation access and
affordability; disproportionate impacts from climate change; high
energy cost burden and low energy access; jobs lost through the energy
transition; and limited access to healthcare.
Distributed energy resource means small, modular, energy generation
and storage technologies that provide electric capacity or energy where
it is needed.
Electric Vehicle (EV) means a motor vehicle that is either
partially or fully powered on electric power received from an external
power source. For the purposes of this regulation, this definition does
not include golf carts, electric bicycles, or other micromobility
devices.
Electric Vehicle Infrastructure Training Program (EVITP) refers to
a comprehensive training program for the installation of electric
vehicle supply equipment. For more information, refer to https://evitp.org/.
Electric Vehicle Supply Equipment (EVSE) See definition of a
charger.
Open Charge Point Interface (OCPI) means an open-source
communication protocol that governs the communication among multiple
charging networks, other communication networks, and software
applications to provide information and services for EV drivers.
Open Charge Point Protocol (OCPP) means an open-source
communication protocol that governs the communication between chargers
and the charging networks that remotely manage the chargers.
Plug and Charge means a method of initiating charging, whereby an
EV charging customer plugs a connector into their vehicle and their
identity is authenticated through digital certificates defined by ISO-
15118, a charging session initiates, and a payment is transacted
automatically, without any other customer actions required at the point
of use.
Power Sharing means dynamically limiting the charging power output
of individual charging ports at the same charging station to ensure
that the sum total power output to all EVs concurrently charging
remains below a maximum power threshold. This is also called automated
load management.
Private entity means a corporation, partnership, company, other
nongovernmental entity, or nonprofit organization.
Public Key Infrastructure (PKI) means a system of processes,
technologies, and policies to encrypt and digitally sign data. It
involves the creation, management, and exchange of digital certificates
that authenticate the identity of users, devices, or services to ensure
trust and secure communication.
Secure payment method means a type of payment processing that
ensures a user's financial and personal information is protected from
fraud and unauthorized access.
Smart charge management means controlling the amount of power
dispensed by chargers to EVs to meet customers' charging needs while
also responding to external power demand or pricing signals to provide
load management, resilience, or other benefits to the electric grid.
State EV infrastructure deployment plan means the plan submitted to
the FHWA by the State describing how it intends to use its apportioned
NEVI Formula Program funds.
Sec. 680.106 Installation, operation, and maintenance by qualified
technicians of electric vehicle charging infrastructure.
(a) Procurement process transparency for the operation of EV
charging stations. States or other direct recipients shall ensure
public transparency for how the price will be determined and set for EV
charging and make available for public review the following:
(1) Summary of the procurement process used;
(2) Number of bids received;
(3) Identification of the awardee;
(4) Proposed contract to be executed with the awardee;
(5) Financial summary of contract payments suitable for public
disclosure including price and cost data, in accordance with State law;
and
(6) Any information describing how prices for EV charging are to be
set under the proposed contract, in accordance with State law.
(b) Number of charging ports. (1) When including DCFCs located
along and designed to serve users of designated AFCs, charging stations
must have at least four network-connected DCFC charging ports and be
capable of simultaneously charging at least four EVs. (2) In other
locations, EV charging stations must have at least four network-
connected (either DCFC or AC Level 2 or a combination of DCFC and AC
Level 2) charging ports and be capable of simultaneously charging at
least four EVs.
(c) Connector type. All charging connectors must meet applicable
industry standards. Each DCFC charging port must be capable of charging
any CCS-compliant vehicle and each DCFC charging port must have at
least one permanently attached CCS Type 1 connector. In addition,
permanently attached CHAdeMO (www.chademo.com) connectors can be
provided using only FY2022 NEVI Funds. Each AC Level 2 charging port
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must have a permanently attached J1772 connector and must charge any
J1772-compliant vehicle.
(d) Power level. (1) DCFC charging ports must support output
voltages between 250 volts DC and 920 volts DC. DCFCs located along and
designed to serve users of designated AFCs must have a continuous power
delivery rating of at least 150 kilowatt (kW) and supply power
according to an EV's power delivery request up to 150 kW,
simultaneously from each charging port at a charging station. These
corridor-serving DCFC charging stations may conduct power sharing so
long as each charging port continues to meet an EV's request for power
up to 150 kW.
(2) Each AC Level 2 charging port must have a continuous power
delivery rating of at least 6 kW and the charging station must be
capable of providing at least 6 kW per port simultaneously across all
AC ports. AC Level 2 chargers may conduct power sharing and/or
participate in smart charge management programs so long as each
charging port continues to meet an EV's demand for power up to 6 kW,
unless the EV charging customer consents to accepting a lower power
level.
(e) Availability. Charging stations located along and designed to
serve users of designated Alternative Fuel Corridors must be available
for use and sited at locations physically accessible to the public 24
hours per day, 7 days per week, year-round. Charging stations not
located along or not designed to serve users of designated Alternative
Fuel Corridors must be available for use and accessible to the public
at least as frequently as the business operating hours of the site
host. This section does not prohibit isolated or temporary
interruptions in service or access because of maintenance or repairs or
due to the exclusions outlined in Sec. 680.116(b)(3).
(f) Payment methods. Unless charging is permanently provided free
of charge to customers, charging stations must:
(1) Provide for secure payment methods, accessible to persons with
disabilities, which at a minimum shall include a contactless payment
method that accepts major debit and credit cards, and either an
automated toll-free phone number or a short message/messaging system
(SMS) that provides the EV charging customer with the option to
initiate a charging session and submit payment;
(2) Not require a membership for use;
(3) Not delay, limit, or curtail power flow to vehicles on the
basis of payment method or membership; and
(4) Provide access for users that are limited English proficient
and accessibility for people with disabilities. Automated toll-free
phone numbers and SMS payment options must clearly identify payment
access for these populations.
(g) Equipment certification. States or other direct recipients must
ensure that all chargers are certified by an Occupational Safety and
Health Administration Nationally Recognized Testing Laboratory and that
all AC Level 2 chargers are ENERGY STAR certified. DCFC and AC Level 2
chargers should be certified to the appropriate Underwriters
Laboratories (UL) standards for EV charging system equipment.
(h) Security. States or other direct recipients must implement
physical and cybersecurity strategies consistent with their respective
State EV Infrastructure Deployment Plans to ensure charging station
operations protect consumer data and protect against the risk of harm
to, or disruption of, charging infrastructure and the grid.
(1) Physical security strategies may include topics such as
lighting; siting and station design to ensure visibility from
onlookers; driver and vehicle safety; video surveillance; emergency
call boxes; fire prevention; charger locks; and strategies to prevent
tampering and illegal surveillance of payment devices.
(2) Cybersecurity strategies may include the following topics: user
identity and access management; cryptographic agility and support of
multiple PKIs; monitoring and detection; incident prevention and
handling; configuration, vulnerability, and software update management;
third-party cybersecurity testing and certification; and continuity of
operation when communication between the charger and charging network
is disrupted.
(i) Long-term stewardship. States or other direct recipients must
ensure that chargers are maintained in compliance with this part for a
period of not less than 5 years from the initial date of operation.
(j) Qualified technician. States or other direct recipients shall
ensure that the workforce installing, maintaining, and operating
chargers has appropriate licenses, certifications, and training to
ensure that the installation and maintenance of chargers is performed
safely by a qualified and increasingly diverse workforce of licensed
technicians and other laborers. Further:
(1) Except as provided in paragraph (j)(2) of this section, all
electricians installing, operating, or maintaining EVSE must meet one
of the following requirements:
(i) Certification from the EVITP.
(ii) Graduation or a continuing education certificate from a
registered apprenticeship program for electricians that includes
charger-specific training and is developed as a part of a national
guideline standard approved by the Department of Labor in consultation
with the Department of Transportation.
(2) For projects requiring more than one electrician, at least one
electrician must meet the requirements above, and at least one
electrician must be enrolled in an electrical registered apprenticeship
program.
(3) All other onsite, non-electrical workers directly involved in
the installation, operation, and maintenance of chargers must have
graduated from a registered apprenticeship program or have appropriate
licenses, certifications, and training as required by the State.
(k) Customer service. States or other direct recipients must ensure
that EV charging customers have mechanisms to report outages,
malfunctions, and other issues with charging infrastructure. Charging
station operators must enable access to accessible platforms that
provide multilingual services. States or other direct recipients must
comply with the American with Disabilities Act of 1990 requirements and
multilingual access when creating reporting mechanisms.
(l) Customer data privacy. Charging station operators must collect,
process, and retain only that personal information strictly necessary
to provide the charging service to a consumer, including information to
complete the charging transaction and to provide the location of
charging stations to the consumer. Chargers and charging networks
should be compliant with appropriate Payment Card Industry Data
Security Standards (PCI DSS) for the processing, transmission, and
storage of cardholder data. Charging Station Operators must also take
reasonable measures to safeguard consumer data.
(m) Use of program income. (1) Any net income from revenue from the
sale, use, lease, or lease renewal of real property acquired shall be
used for Title 23, United States Code, eligible projects.
(2) For purposes of program income or revenue earned from the
operation of an EV charging station, the State or other direct
recipient should ensure that all revenues received from operation of
the EV charging facility are used only for:
(i) Debt service with respect to the EV charging station project,
including funding of reasonable reserves and debt service on
refinancing;
(ii) A reasonable return on investment of any private person
financing the EV
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charging station project, as determined by the State or other direct
recipient;
(iii) Any costs necessary for the improvement and proper operation
and maintenance of the EV charging station, including reconstruction,
resurfacing, restoration, and rehabilitation;
(iv) If the EV charging station is subject to a public-private
partnership agreement, payments that the party holding the right to the
revenues owes to the other party under the public-private partnership
agreement; and
(v) Any other purpose for which Federal funds may be obligated
under Title 23, United States Code.
Sec. 680.108 Interoperability of electric vehicle charging
infrastructure.
(a) Charger-to-EV communication. Chargers must conform to ISO
15118-3 and must have hardware capable of implementing both ISO 15118-2
and ISO 15118-20. By February 28, 2024, charger software must conform
to ISO 15118-2 and be capable of Plug and Charge. Conformance testing
for charger software and hardware should follow ISO 15118-4 and ISO
15118-5, respectively.
(b) Charger-to-Charger-Network Communication. Chargers must conform
to Open Charge Point Protocol (OCPP) 1.6J or higher. By February 28,
2024, chargers must conform to OCPP 2.0.1.
(c) Charging-Network-to-Charging-Network Communication. By February
28, 2024, charging networks must be capable of communicating with other
charging networks in accordance with Open Charge Point Interface (OCPI)
2.2.1.
(d) Network switching capability. Chargers must be designed to
securely switch charging network providers without any changes to
hardware.
Sec. 680.110 Traffic control devices or on-premises signs acquired,
installed, or operated.
(a) Manual on Uniform Traffic Control Devices for Streets and
Highways. All traffic control devices must comply with part 655 of this
subchapter.
(b) On-premises signs. On-property or on-premise advertising signs
must comply with part 750 of this chapter.
Sec. 680.112 Data submittal.
(a) Quarterly data submittal. States and other direct recipients
must ensure the following data are submitted on a quarterly basis in a
manner prescribed by the FHWA. Any quarterly data made public will be
aggregated and anonymized to protect confidential business information.
(1) Charging station identifier that the following data can be
associated with. This must be the same charging station name or
identifier used to identify the charging station in data made available
to third-parties in Sec. 680.116(c)(1);
(2) Charging port identifier. This must be the same charging port
identifier used to identify the charging port in data made available to
third-parties in Sec. 680.116(c)(8)(ii);
(3) Charging session start time, end time, and any error codes
associated with an unsuccessful charging session by port;
(4) Energy (kWh) dispensed to EVs per charging session by port;
(5) Peak session power (kW) by port;
(6) Payment method associated with each charging session;
(7) Charging station port uptime, T_outage, and T_excluded
calculated in accordance with the equation in Sec. 680.116(b) for each
of the previous 3 months;
(8) Duration (minutes) of each outage.
(b) Annual data submittal. Beginning in 2024, States and other
direct recipients must ensure the following data are submitted on an
annual basis, on or before March 1, in a manner prescribed by FHWA. Any
annual data made public will be aggregated and anonymized to protect
confidential business information.
(1) Maintenance and repair cost per charging station for the
previous year.
(2) For private entities identified in paragraph (c)(1) of this
section, identification of and participation in any State or local
business opportunity certification programs including but not limited
to minority-owned businesses, Veteran-owned businesses, woman-owned
businesses, and businesses owned by economically disadvantaged
individuals.
(c) One-time data submittal. This paragraph (c) applies only to
both the NEVI Formula Program projects and grants awarded under 23
U.S.C. 151(f) for projects that are for EV charging stations located
along and designed to serve the users of designated AFCs. Beginning in
2024, States and other direct recipients must ensure the following data
are collected and submitted once for each charging station, on or
before March 1 of each year, in a manner prescribed by the FHWA. Any
one-time data made public will be aggregated and anonymized to protect
confidential business information.
(1) The name and address of the private entity(ies) involved in the
operation and maintenance of chargers.
(2) Distributed energy resource installed capacity, in kW or kWh as
appropriate, of asset by type (e.g., stationary battery, solar, etc.)
per charging station; and
(3) Charging station real property acquisition cost, charging
equipment acquisition and installation cost, and distributed energy
resource acquisition and installation cost; and
(4) Aggregate grid connection and upgrade costs paid to the
electric utility as part of the project, separated into:
(i) Total distribution and system costs, such as extensions to
overhead/underground lines, and upgrades from single-phase to three-
phase lines; and
(ii) Total service costs, such as the cost of including poles,
transformers, meters, and on-service connection equipment.
(d) Community engagement outcomes report. This paragraph (d) only
applies to the NEVI Formula Program projects. States must include in
the State EV Infrastructure Deployment Plan a description of the
community engagement activities conducted as part of the development
and approval of their most recently-submitted State EV Infrastructure
Deployment Plan, including engagement with DACs.
Sec. 680.114 Charging network connectivity of electric vehicle
charging infrastructure.
(a) Charger-to-charger-network communication. (1) Chargers must
communicate with a charging network via a secure communication method.
See Sec. 680.108 for more information about OCPP requirements.
(2) Chargers must have the ability to receive and implement secure,
remote software updates and conduct real-time protocol translation,
encryption and decryption, authentication, and authorization in their
communication with charging networks.
(3) Charging networks must perform and chargers must support remote
charger monitoring, diagnostics, control, and smart charge management.
(4) Chargers and charging networks must securely measure,
communicate, store, and report energy and power dispensed, real-time
charging-port status, real-time price to the customer, and historical
charging-port uptime.
(b) Interoperability. See Sec. 680.108 for interoperability
requirements.
(c) Charging-network-to-charging-network communication. A charging
network must be capable of communicating with other charging networks
to enable an EV driver to use a single method of identification to
charge at Charging Stations that are a part of multiple charging
networks. See Sec. 680.108 for more information about OCPI
requirements.
(d) Charging-network-to-grid communication. Charging networks must
be capable of secure communication with electric utilities,
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other energy providers, or local energy management systems.
(e) Disrupted network connectivity. Chargers must remain functional
if communication with the charging network is temporarily disrupted,
such that they initiate and complete charging sessions, providing the
minimum required power level defined in Sec. 680.106(d).
Sec. 680.116 Information on publicly available electric vehicle
charging infrastructure locations, pricing, real time availability, and
accessibility through mapping.
(a) Communication of price. (1) The price for charging must be
displayed prior to initiating a charging transaction and be based on
the price for electricity to charge in $/kWh. If the price for charging
is not currently based on the price for electricity to charge an
Electric Vehicle in $/kWh, the requirements of this subparagraph must
be satisfied within one year from February 28, 2023.
(2) The price for charging displayed and communicated via the
charging network must be the real-time price (i.e., price at that
moment in time). The price at the start of the session cannot change
during the session.
(3) Price structure including any other fees in addition to the
price for electricity to charge must be clearly displayed and
explained.
(b) Minimum uptime. States or other direct recipients must ensure
that each charging port has an average annual uptime of greater than
97%.
(1) A charging port is considered ``up'' when its hardware and
software are both online and available for use, or in use, and the
charging port successfully dispenses electricity in accordance with
requirements for minimum power level (see Sec. 680.106(d)).
(2) Charging port uptime must be calculated on a monthly basis for
the previous twelve months.
(3) Charging port uptime percentage must be calculated using the
following equation:
[mu] = ((525,600-(T_outage-T_excluded))/525,600) x 100
where:
[mu] = port uptime percentage,
T_outage = total minutes of outage in previous year, and
T_excluded = total minutes of outage in previous year caused by the
following reasons outside the charging station operator's control,
provided that the charging station operator can demonstrate that the
charging port would otherwise be operational: electric utility
service interruptions, failure to charge or meet the EV charging
customer's expectation for power delivery due to the fault of the
vehicle, scheduled maintenance, vandalism, or natural disasters.
Also excluded are hours outside of the identified hours of operation
of the charging station.
(c) Third-party data sharing. States or other direct recipients
must ensure that the following data fields are made available, free of
charge, to third-party software developers, via application programming
interface:
(1) Unique charging station name or identifier;
(2) Address (street address, city, State, and zip code) of the
property where the charging station is located;
(3) Geographic coordinates in decimal degrees of exact charging
station location;
(4) Charging station operator name;
(5) Charging network provider name;
(6) Charging station status (operational, under construction,
planned, or decommissioned);
(7) Charging station access information:
(i) Charging station access type (public or limited to commercial
vehicles);
(ii) Charging station access days/times (hours of operation for the
charging station);
(8) Charging port information:
(i) Number of charging ports;
(ii) Unique port identifier;
(iii) Connector types available by port;
(iv) Charging level by port (DCFC, AC Level 2, etc.);
(v) Power delivery rating in kilowatts by port;
(vi) Accessibility by vehicle with trailer (pull-through stall) by
port (yes/no);
(vii) Real-time status by port in terms defined by Open Charge
Point Interface 2.2.1;
(9) Pricing and payment information:
(i) Pricing structure;
(ii) Real-time price to charge at each charging port, in terms
defined by Open Charge Point Interface 2.2.1; and
(iii) Payment methods accepted at charging station.
Sec. 680.118 Other Federal requirements.
All applicable Federal statutory and regulatory requirements apply
to the EV charger projects. These requirements include, but are not
limited to:
(a) All statutory and regulatory requirements that are applicable
to funds apportioned under chapter 1 of Title 23, United States Code,
and the requirements of 2 CFR part 200 apply. This includes the
applicable requirements of 23, United States Code, and Title 23, Code
of Federal Regulations, such as the applicable Buy America requirements
at 23 U.S.C. 313 and Build America, Buy America Act (Pub. L. No 117-58,
div. G sections 70901-70927).
(b) As provided at 23 U.S.C. 109(s)(2), projects to install EV
chargers are treated as if the project is located on a Federal-aid
highway. As a project located on a Federal-aid highway, 23 U.S.C. 113
applies and Davis Bacon Federal wage rate requirements included at
subchapter IV of chapter 31 of Title 40, U.S.C., must be paid for any
project funded with NEVI Formula Program funds.
(c) The American with Disabilities Act of 1990 (ADA), and
implementing regulations, apply to EV charging stations by prohibiting
discrimination on the basis of disability by public and private
entities. EV charging stations must comply with applicable
accessibility standards adopted by the Department of Transportation
into its ADA regulations (49 CFR part 37) in 2006, and adopted by the
Department of Justice into its ADA regulations (28 CFR parts 35 and 36)
in 2010.
(d) Title VI of the Civil Rights Act of 1964, and implementing
regulations, apply to this program to ensure that no person shall, on
the grounds of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.
(e) All applicable requirements of Title VIII of the Civil Rights
Act of 1968 (Fair Housing Act), and implementing regulations, apply to
this program.
(f) The Disadvantaged Business Enterprise (DBE) program does not
apply to the NEVI Formula Funds; however, the DBE program may apply to
other programs apportioned under chapter 1 of Title 23, United States
Code.
(g) The Uniform Relocation Assistance and Real Property Acquisition
Act, and implementing regulations, apply to this program by
establishing minimum standards for federally funded programs and
projects that involve the acquisition of real property (real estate) or
the displacement or relocation of persons from their homes, businesses,
or farms.
[[Page 12757]]
(h) The National Environmental Policy Act of 1969 (NEPA), the
Council on Environmental Quality's NEPA implementing regulations, and
applicable agency NEPA procedures apply to this program by establishing
procedural requirements to ensure that Federal agencies consider the
consequences of their proposed actions on the human environment and
inform the public about their decision making for major Federal actions
significantly affecting the quality of the human environment.
[FR Doc. 2023-03500 Filed 2-27-23; 8:45 am]
BILLING CODE 4910-22-P