The National Electric Vehicle Infrastructure Formula Program (NEVI Program), one of the key programs included in the 2021 Bipartisan Infrastructure Law, set aside $5 billion dollars in Federal funding administered by the Federal Highway Administration (FHWA) to assist in the nationwide development of electric vehicle charging infrastructure. Final NEVI Formula Program guidance was issued on June 11, 2024 during the later months of the Biden Administration. However, on February 6, 2025 following the inauguration of President Trump, the FHWA issued a letter that froze the obligation of NEVI Program funds nationwide, and noted that the new leadership of the Department of Transportation was undertaking a review of the policies underlying the implementation of the NEVI Program, and rescinded all prior versions of the NEVI Formula Program Guidance (including the June 11, 2024 Final Guidance).[1]
On August 11, 2025, FHWA issued new Interim Final Guidance (IFG) with public comments due on August 27, 2025.[2] In total there were 43 public comments submitted to FHWA in response to the IFG. This article summarizes some of the common themes in the comments and analyzes the potential issues that the final guidance and potential future rule makings could address.
Interim Final Guidance
The IFG supersedes all prior guidance issued by the FHWA and replaces it with current guidance addressing: (1) State EV Infrastructure Deployment Plans, including plan contents, plan submission and approval, (2) Project Eligibility, which addresses Alternative Fuel Corridors (AFCs) and Fully-Built Out (FBO) Certification, and (3) Minimum Standards and Requirements.[3]
A. State EV Infrastructure Deployment Plans
The IFG revised the content-requirements for State EV Infrastructure Deployment Plans to require only that information which is “legally required”, namely (A) a description of how the State intends to use NEVI Program funds for each fiscal year, (B) a Community Engagement Outcomes Report (per 23 C.F.R. 680.112(d)), and (C) a description of physical and cybersecurity strategies (per 23 C.F.R. 680.106(h)). The IFG allows States to submit previously developed plans or previously submitted plans for fiscal years 2022-2025, but the IFG notes that any information included in a State’s plan beyond the above-mentioned legally required information would be at the discretion of the State.[4]
B. Project Eligibility
While keeping most of the project eligibility requirements the same as under the prior guidance, two notable revisions to the Project Eligibility criteria in the IFG are (1) an “encouragement” by the FHWA for States to prioritize charging locations “where the charging station operator is also the site host (i.e., property owner)” and (2) removal of distance requirements between publicly available EV charging infrastructure for which NEVI Program funds are sought. Under the prior guidance, there was no language expressing a preference for a particular business model of EV charging installation and, with respect to station spacing requirements, absent a specifically approved discretionary exception, States were to ensure that EV charging infrastructure would be located “in general no greater than 1 mile from interchange exists or highway intersections along designated corridors” and that new EV charging infrastructure locations were to be by spaced a maximum distance of 50 miles apart along designated corridors[5]. Additionally, once FHWA certifies that a State’s AFCs are FBO, NEVI Program funds could then be used to construct new EV charging infrastructure on any other public roads or in other publicly accessible locations.[6] In removing the mile-spacing requirement, the new IFG just requires that States “consider the appropriate distance between stations to allow for reasonable travel and certainty that charging will be available to corridor travelers when needed” and that “States may consider grid capacity, geography, cost, and other location- or context-specific constraints.” Additionally, States are given more discretion under the IFG to determine when their AFCs reach FBO status, and can request certification from the FHWA by submitting “a letter determining their status as fully built out” together with “a reasonable explanation of the State’s determination,” which explanation should include maps, tables, data and other information and evidence, as appropriate.[7]
C. Minimum Standards and Requirements
While the IFG includes a section dealing with the NEVI Program’s Minimum Standards and Requirements, the IFG made no actual change to the program’s Minimum Standards and Requirements, noting that the National Electric Vehicle Infrastructure Standards and Requirements at 23 C.F.R. 680 still applied to all NEVI projects.
Comments Received
While comments to the IFG were varied and represented a diverse array of EV manufacturers, charging providers, interested members of the public, and industry groups, there were three common themes: (1) comments about the current Minimum Standards and Requirements set forth in 23 C.F.R. 680 needing to be updated based on technological changes occurring since their initial promulgation, (2) comments about State certification on AFCs reaching FBO status, and (3) comments to the IFG’s new site preference language.
A. Minimum Standards and Requirements
The largest most consistent set of comments to the Interim Final Guidance centered around the current Minimum Standards and Requirements set forth in 23 C.F.R. 680, specifically around the current requirement from 23 C.F.R. 680.106 which requires each Direct Current Fast Charging (DCFC) charging port must be capable of charging any Combined Charging System (CCS)compliant vehicle and each DCFC charging port must have at least one permanently attached CCS Type 1 connector. [8] Most of the commentators noted that this standard no longer fit the realities of the marketplace as, since those requirements were finalized in 2023, many major automakers have announced plans to transition their future vehicles to utilize the SAE J3400 (NACS) connector standard. In fact just recently, on September 5, 2025, both Porsche and Audi announced that their North American vehicles can now utilize approximately 23,500 Tesla Supercharger Stations (which, in North America, utilize the NACS plug as a standard) via a NACS to CCS adapter, and, currently several automakers that previously announced compatibility with Tesla’s North American Supercharger Network have begun selling EVs that have replaced the prior CCS port with a native NACS port (see for example the 2025 Kia EV6, the 2025 Hyundai Ioniq 5, and the forthcoming Rivian R2).
Additionally, related to the comments on revisiting the Minimum Standards and Requirements set forth in 23 C.F.R. 680, several commentators noted that while NEVI program funds could be used for the acquisition and installation of EV charging infrastructure for medium- and heavy-duty vehicles, the FHWA should revisit the Minimum Standards and Requirements to better support the emerging technologies now being favored for use in medium- and heavy-duty/heavy duty (MD/HD) charging facilities. Specifically, several comments were received requesting an update to the charging requirements to allow for next generation charging equipment specifically designed for MD/HD needs such as the Megawatt Charging System and associated higher voltage charging. Additionally a few commentators requested that the regulations be revisited in light of the MD/HD fleets not necessarily being “public-facing”, thereby making certain NEVI requirements, such multi-lingual customer service, customer data privacy/limits on data collection, and payment methods (requiring charging sites to include contact-less payment, phone payment, and no membership requirements) being inapplicable to fleets and semi-public MD/HD charging stations.
B. AFCs and FBO Certification
While many commentators are generally in favor of the more streamlined “self-certification” language with respect to whether a particular State’s AFCs reach FBO status, several commentators have requested that FHWA provide additional guidance on the FHWA’s determination process for FBO status. Commentators noted that there was no set criteria for how the FHWA would confirm if an AFC is fully built out, also noting that while removing mile-spacing requirements would give States more flexibility to determine where EV charging infrastructure is needed, such removal only adds more uncertainty to how the FHWA will evaluate a State’s self-certification of FBO status. Several commentators also requested that the FHWA clarify in their final guidance that States may submit their letters of determination requesting FBO Certification to the applicable State’s FHWA Division Office.
C. Prioritization of Site Owner operated vs. Charging Station Owner operated Charging Stations
Some parties filed comments on IFG language encouraging States to select sites where the charging station operator is also the site host (i.e., property owner). Commentors requested that this language be removed from the final guidance, noting that charging providers employ a variety of business models from outright ownership of the land on which the charging station is located, to contracting with the landowners to allow for charging station operators to locate, build and operate charging stations on others’ lands. It should be noted that despite this “encouragement” language, the IFG does state that “[i]n the alternative, FHWA encourages the selection of locations where the charging station operator has a committed agreement with the site host to expedite project delivery.”
Conclusion
While the IFG did allow for a comment period and comments were indeed provided, it remains to be seen whether the FHWA will update the IFG in light of the comments, particularly with respect to the comments on site preference and determination of FBO status. Despite the comment period following IFG issuance on August 11, 2025, States still need to submit updated plans within 30 days of IFG issuance in order to be eligible to receive NEVI Program funds. Based on this, it does not seem likely that the FHWA will update the IFG before the expiration of this 30-day period.
Additionally, with respect to the comments requesting changes to the NEVI Minimum Standards and Requirements set forth in 23 C.F.R. 680 on the grounds that such changes are needed in light of changing industry and technological standards for light-, medium- and heavy-duty electric vehicles, it remains to be seen whether the FHWA will undertake a new rule-making process to revise these, however with more and more light-duty auto manufacturers transitioning from the CCS plug/port to the NACS plug/port, as well as the imminent finalization and promulgation of the Megawatt Charging System standard, we can expect the FHWA to revisit the Minimum Standards at a minimum to better align the NEVI technical standards with the current marketplace.
If you have any questions about the development of these standards or other FHWA policies, please contact Husch Blackwell attorney Sean Jain.
[1] https://www.fhwa.dot.gov/environment/nevi/resources/state-plan-approval-suspension.pdf
[2] https://www.fhwa.dot.gov/environment/nevi/resources/NEVI-Interim-Final-Program-Guidance-8-11-2025.pdf
[3] Id.
[4] Id.
[5] https://www.dot.state.wy.us/files/live/sites/wydot/files/shared/Planning/Electric%20Vehicles/NEVI%20Formula%20Program%20Guidance_6%2011%202024%20FINAL.pdf
[6] https://www.fhwa.dot.gov/infrastructure-investment-and-jobs-act/nevi_formula_program.cfm
[7] https://www.fhwa.dot.gov/environment/nevi/resources/NEVI-Interim-Final-Program-Guidance-8-11-2025.pdf
[8] DCFC is a faster method of charging EVs that can supply 50kW and above to allow for faster EV charging than Alternating Current (AC) charging which can supply between 1.2kW-22kW. CCS uses the SAE J1772 connector for AC charging and an additional two high-voltage contacts for direct current (DC) charging.
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