National Electric Vehicle Infrastructure Standards and Requirements, 12724-12757 [2023-03500]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[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

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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.

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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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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)).
---------------------------------------------------------------------------

    \16\ https://www.autonews.com/mobility-report/ev-drivers-struggle-declining-reliability-charging-network.
---------------------------------------------------------------------------

    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

[[Page 12754]]

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

[[Page 12755]]

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,

[[Page 12756]]

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