Federal funding to advance EV charging

On June 9, 2022, the U.S. Department of Transportation’s (DOT) Federal Highway Administration (FHWA) released an 82-page Notice of Proposed Rulemaking (NOPR) on minimum standards and requirements for projects funded under the National Electric Vehicle Infrastructure (NEVI) Formula Program.

The Bipartisan Infrastructure Law (BIL) enacted in November 2021 created the NEVI Formula Program to provide funding to states to deploy electric vehicle (EV) charging infrastructure and to establish an interconnected network facilitating data collection, access, and reliability to EVs and the broader electric grid.  The BIL also directed the creation of a DOT partnership with the U.S. Department of Energy (DOE), which has resulted in a Joint Office of Energy and Transportation (Joint Office), to support the deployment of the $7.5 billion in the BIL and to build out a national EV charging network for enhancing public confidence, with a focus on filling gaps in rural, disadvantaged, and hard-to-reach locations. DOT and DOE coordinated on both the NEVI Formula Program guidance and development of the minimum standards and requirements in the NOPR. 

The NOPR is the first effort of the U.S. government to impose mandatory standards on EV charging infrastructure to create uniformity and consumer transparency in the EV charging sector, and to make charging EVs convenient, reliable, and affordable for all, particularly when driving long distances. 

The proposed standards and requirements would apply to projects funded under the NEVI Formula Program in order to “provide funding to States to strategically deploy EV charging infrastructure and to establish an interconnected network to facilitate data collection, access, and reliability.”  The proposed rule is intended to enable States to implement federally funded charging station projects in a transparent and standard manner.  Proposed section 680.102 specifies that the standards would apply to two types of publicly accessible EV charging projects: (1) NEVI Formula Program projects, and (2) projects constructed with any funds made available under Title 23 of the U.S. Code.

Below is an overview of the transportation and energy-related proposed guidelines.

Using Federal Funding to Enable EV Transportation

Charging infrastructure is crucial to furthering widespread adoption of EVs, particularly for passenger cars and other light-duty vehicles.  The transition to electric vehicles could significantly reduce nationwide emissions, support innovations in clean energy, and support environmental justice goals for disadvantaged communities.  As indicated by the FHWA, charging infrastructure development will help “equitable access” to clean transportation options.

However, consumers have indicated that a primary concern of purchasing an EV is range anxiety and limited access to adequate charging– particularly in remote areas that would significantly benefit from EV emissions benefits.  A lack of transparency surrounding location of infrastructure, pricing, and accessibility has limited consumer purchases.

Standardized charging port type

FHWA is proposing a requirement that Direct Current Fast Chargers (described further below) chargers communicate with EVs through an industry standard charging port type called the Combined Charging System (CCS).  See § 680.106(c).  As the most common port type across new EV manufacturers, the CCS connectors will accommodate a baseline of vehicles and are designed to accommodate use of adapters.  Section 680.106(c) also provides flexibility for charging ports once the CCS requirements have been met. such as including proprietary connectors.

Interoperability of EV charging infrastructure

Proposed section 680.108 outlines the minimum interoperability standards for charger communication with EVs, consistent with industry ISO 15118 standards.  As proposed, this section would require chargers to conform with ISO 15118 to reciprocate communications with CCS-compliant EVs that have implemented ISO 15118. 

Related regulatory developments

To further remedy these concerns and support the growing EV market, other agencies within the federal and state governments, including California, have engaged in recent regulatory developments. Ensuring robust EV charging infrastructure is a critical component to the success of the regulatory programs.  For example, the California Air Resources Board (CARB) is working on the Advanced Clean Cars II (ACC II) rulemaking package, including significant increases to Zero Emission Vehicle (ZEV) mandates for model years 2026 and beyond, as well as new requirements specific to EV charging. 

At the federal level, the Biden Administration has supported EV adoption and announced a goal that 50% of all new passenger cars and light trucks sold in 2030 be zero-emission vehicles, including battery electric, plug-in hybrid electric, or fuel cell electric vehicles. The Environmental Protection Agency (EPA) has also acknowledged commitments by automakers to produce larger volumes of zero- and near-zero emission vehicles to achieve these goals.  In addition, the National Highway Traffic Safety Administration (NHTSA) indicated the various factors that led to its recent standards, including a perceived shift in manufacturer’s confidence in selling electric vehicles, which will only increase with greater access to, and standardization of, charging infrastructure.

Delivering Electrons to EVs

Today, for any given charging station, the charger manufacturer, charging network, charging network provider, charging station owner, charging station operator, and the utility providing electricity, may all be different entities, all with different expectations for contracts, maintenance, operations, and customer response.  As the NOPR explains: “[t]his 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 NOPR seeks to mitigate consumer uncertainties by creating uniformity in regulations imposed on the diverse entities, and specifically, by including proposed regulations governing electric charge, communication, and price setting. 

Location, siting, and uptime requirements

Section 680.106(e) proposes to require that charging stations be available for use and sited at locations physically accessible to the public 24 hours per day, seven days per week, year-round. This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.

The NOPR incorporates by reference all traffic control and sign visibility requirements contained in 23 CFR Parts 655 and 750.

Charging stations must have at least four charging network-connected Direct Current Fast Charger (DCFC) ports and be capable of simultaneously charging at least four EVs.

To address public comments on unreliability of charging infrastructure, proposed Section 680.116(b) requires a minimum annual uptime requirement of greater than (or at least) 97 percent for the charging ports. Proposed Section 680.116(b)(3) requires that uptime be calculated for the time when a charger’s hardware and software are both online and available for use, or in use, and the charging port successfully dispenses electricity as expected. The NOPR further requires that uptime be available as a dataset submitted quarterly.  See Section 680.112(b)(2)(iii)).

On the issue of siting, Section 680.118(f) provides that the Uniform Relocation Assistance and Real Property Acquisition Act and its implementing regulations apply to NEVI. This program imposes minimum standards for federally funded programs and projects that involve the acquisition of real property or the displacement or relocation of persons from their homes, businesses, or farms.

Eligible installation and maintenance entities

Proposed Section 680.106(j) requires States to ensure that the installation and maintenance of EV supply equipment (EVSE) is performed safely by a skilled workforce that has appropriate licenses, certifications, and training. The proposed regulation also requires that, with the exception of apprentices, all electricians installing, maintaining, and operating EVSE be certified through the Electric Vehicle Infrastructure Training Program (EVITP). The EVITP refers to a comprehensive training program for the installation of EV supply equipment. To be eligible for EVITP, a participant must be a State licensed or certified electrician or if the participant works in a State that does not license or certify electricians, and the participant must provide documentation of a minimum of 8,000 hours of hands-on electrical construction experience. The EVITP was created by a collaboration of industry stakeholders from the private sector and educational institutions to ensure increased reliability.

Further, States must ensure that all EVSE are certified by an Occupational Safety and Health Administration Nationally Recognized Testing Laboratory and that all AC Level 2 EVSE are ENERGY STAR certified.  See Section 680.106(g).

Proposed price-setting regulations

In most states today, drivers pay for EV charging by the kilowatt-hour — the equivalent of paying by the gallon.  However, in some places, the cost of EV charging is based on  charging time. Prices vary greatly network to network.  Under the NOPR, the Joint Office would serve as a pricing watchdog and require “transparency when EV charging prices are to be set by a third party” in order to “protect the public from price gouging.”  See Section 680.106(a).   This language is consistent with DOT guidance regarding public transparency in public-private partnership (P3) procurements. DOT recognizes that some State DOTs do not have the authority to enter into P3 agreements and DOT is not requiring any State DOT to enter into a P3 for EV charging stations. The proposed requirements are applicable to any procurement involving NEVI Formula Program funds, any time EV charging prices are to be set by a third party, likely a non-utility provider of charging services, though this is not clear in the NOPR.

To accomplish transparency, the NOPR proposes to standardize the communication to consumers of price and availability of each charging station. States would be 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 is available free of charge to third-party software developers through an application programming interface. The NOPR states this will protect the public interest in understanding how prices for charging are set or to be determined whenever a private operator is involved in the determination of price.

Specifically, under proposed Section 680.116(a), for procurement process transparency, “where price setting involves a third party . . . [Federal] [a]gencies shall ensure public transparency for how the price will be determined and set for EV charging and make available for public review” the following:

  • Summary of the procurement process used;
  • Number of bids received;
  • Identification of the awardee;
  • Proposed contract to be executed with the awardee;
  • Financial summary of contract payments suitable for public disclosure including price and cost data, in accordance with State law; and
  • Any information describing how prices for EV charging are to be set under the proposed contract, in accordance with State law.

Further, chargers must display and base the price for electricity to charge in $/kWh and price of charging displayed on the chargers, and communicated via the charging network must be the real-time price (i.e., price at that moment in time).  For example, the price at the start of the session cannot change during the session.  Price structure including any other fees in addition to the price for electricity to charge must be clearly explained via an application or a website, with instructions for finding the information posted in an accessible manner at the charging station. 

The NOPR specifically requests comments on whether additional fees should be allowed or encouraged, and comments on whether there are factors that could be considered to avoid an instance of charging the consumer too high a price for EV charging, especially when demands are high and supplies are limited.

Use of program income

Under Section 680.116(m), for purposes of program income or revenue earned from the operation of an EV charging station, the State DOT should ensure that all revenues received from operation of the EV charging facility are used only for:

  • Debt service with respect to the EV charging station project, including funding of reasonable reserves and debt service on refinancing;
  • A reasonable return on investment of any private person financing the EV charging station project, as determined by the State DOT;
  • Any costs necessary for the improvement and proper operation and maintenance of the EV charging station, including reconstruction, resurfacing, restoration, and rehabilitation;
  • 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
  • Any other purpose for which Federal funds may be obligated under this title 23, United States Code.
Role of electric utilities

Electric utilities are recognized in the NOPR as essential to achieving  transparency for the public.  Section 680.114(c) proposes to require that charging networks be capable of secure communication with electric utilities, other energy providers, or local energy management systems. This proposed requirement addresses cybersecurity threats to the electric grid while facilitating a collaborative market environment across private industry and utilities to enable ease of charging.

To ensure that charging providers can get the levels of power they need to provide the kind of fast charging customers want, the NOPR proposes that each Direct Current Fast Charger (DCFC) charging port must be at or above 150kW. This requirement “benefits the charging industry primarily in communicating standards with individual utilities that may not be accustomed to EV industry preferences.” Proposed Section 680.106(d) includes “several components describing power level requirements for coordination between charging station owners/operators and utility providers.”

Grid and infrastructure sustainability

Section 680.106(h) proposes to require States to implement physical and cybersecurity strategies consistent with their State EV Infrastructure Deployment Plans. This section includes options for both physical security, such as lighting, siting, driver and vehicle safety, fire prevention, tampering, charger locks, and illegal surveillance of payment devices, and cybersecurity strategies to mitigate charging infrastructure, grid, and consumer vulnerability associated with the operation of charging stations.

Section 680.106(i) proposes to establish a requirement for States to maintain charging infrastructure in compliance with the provisions in this proposed regulation for at least 5 years.  At the conclusion of the 5 year period, States can choose to retire the infrastructure that has reached the end of its useful life and should consider upgrading or replacing the EVSE if necessary. However, if the EVSE is still functioning to meet its intended purpose after 5 years, States should consider maintaining, or supporting the maintenance of, the EVSE to most efficiently make use of Federal resources.

Federal Dollars Have Reporting and Connectivity Strings Attached

Since government funds will be helping to pay for these EV charging stations, the NOPR proposes that States submit quarterly and monthly reports containing information on charging station use, cost, reliability, and maintenance data.  See Section 680.112(b).  Under this proposed section, States must include the following in the reports:

(1) Charging station location identifier that the following data can be associated with;

(2) Charging session start time, end time, and successful session completion (yes/no) by port;

(3) Energy (kWh) dispensed to EVs per session by port;

(4) Peak session power (kW) by port;

(5) Charging station uptime calculated in accordance with the equation in § 680.116(b) for each of the previous 3 months;

(6) Cost of electricity to operate per charging station in each of the previous 3 months;

(7) Maintenance and repair cost per charging station for each of the previous 3 months;

(8) Charging station real property acquisition cost, charging equipment acquisition and installation cost, distributed energy resource acquisition and installation cost, and grid connection and upgrade cost on the utility side of the electric meter; and

(9) Distributed energy resource installed capacity, in kW or kWh as appropriate, of asset by type (e.g., stationary battery, solar, etc.) per charging station.

Similarly, States must also identify an annual report of the private entities participating 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. See Section 680.112(c)(2).

Further, Charging Networks, which are defined as a collection of chargers located on one or more property(ies) connected via digital communications to manage the facilitation of payment, the facilitation of electrical charging, and any related data requests, must be capable of secure communication with electric utilities, other energy providers, or local energy management systems.  See Section 680.114(c).

States must make these reports made publicly available to enable the public to understand how prices for charging are determined whenever a private operator is involved in the determination of price.  See Section 680.106.

Comments on the NOPR are due within 60 days of the date on which the proposed rule is published in the Federal Register, which has not happened at the time of this posting.

For more information on the NOPR and EV regulatory information generally, please contact Mary Anne Sullivan, Joanne Rotondi, Stephanie Fishman or Allisa Newman.

 

 

 

Authored by Mary Anne Sullivan, Joanne Rotondi, Stephanie Fishman and Allisa Newman.

 

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