Power & Pipes

FERC, CFTC, and State Energy Law Developments

On June 9, the Department of Transportation (DOT), through the Federal Highway Administration (FHWA), proposed mandatory standards concerning the development and operation of publicly available electric vehicle (EV) charging infrastructure in US markets. DOT’s proposal is the first-ever effort of the US government to impose mandatory standards on EV charging infrastructure in an effort to create uniformity and consumer transparency in the EV charging sector. DOT’s proposal is subject to comment and consideration, and a final rule is expected later this year.

The Bipartisan Infrastructure Bill (BIL) enacted in November 2021 created the National Electric Vehicle Infrastructure (NEVI) Formula Program, which will provide funding to states to deploy EV charging infrastructure and to establish an interconnected network facilitating data collection, access, and reliability to EVs and the broader electric grid. The BIL directed the FHWA and DOT to create minimum standards and requirements for the NEVI Formula Program, enabling states to implement standardized EV charging station projects that will connect to form a national EV charging network that can be utilized universally by all EV vehicles. The BIL requested that the standards be in relation to the following six areas:

  • Installation, operation, and maintenance by qualified technicians of EV infrastructure
  • Interoperability of EV charging infrastructure
  • Traffic control devices and on-premise signs acquired, installed, or operated
  • Data requested related to a project funded under the NEVI Formula Program, including the format and schedule for the submission of such data
  • Network connectivity of EV charging infrastructure
  • Information on publicly available EV charging infrastructure locations, pricing, real-time availability, and accessibility though mapping applications.

As directed, on June 9, the FHWA and DOT issued a Notice of Proposed Rulemaking to establish regulations that would set minimum standards and requirements for projects funded under the NEVI Formula Program and projects for the construction of publicly accessible EV chargers using federal funds under Title 23 of the United States Code. The proposed rule sets out various requirements falling under the above six areas, and sets forth detailed requirements concerning the operation and technological capability of publicly available chargers developed pursuant to the NEVI program. Of particular significance, the proposed guidelines specify (among other things) the following:

  • For direct-current fast chargers (DCFCs) developed pursuant to NEVI, each charging station must contain a minimum of four charging ports and provide for the ability of simultaneous charging by multiple EVs.
  • The minimum charging speed for DCFCs should be at least 150 kW per port and each port must be capable or charging at a 150 kW simultaneously.
  • The charging stations will be required to utilize the Combined Charging System port as a universal connector to accommodate a baseline of vehicles as well as adapters to provide charging for all EV models.
  • Stations must accept credit cards and provide transparent pricing such that the price to charge must be stated upfront and cannot change during the charging session.
  • Charging stations funded under the proposed rule will be required to be available for public use 24 hours a day, seven days a week, and on a year-round basis. The rule only allows for limited exceptions of this availability requirement.
  • Charging stations are required to satisfy a newly established uptime requirement of 97% or greater, meaning that the charger’s hardware and software are online and available for use, or are in use, and the charging port is dispensing electricity as designed.

The FHWA and DOT are requesting comments on the Proposed Rule before a final Rule will be published. Comments to the Proposed Rule 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. Comments may be submitted by visiting, by mail to Docket Management Facility, US Department of Transportation, 1200 New Jersey Avenue, SE, Washington, DC 20590, or by hand delivery to US Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC 20590, between 9:00 am and 5:00 pm, Monday through Friday, except federal holidays.