The On-Ramp: An Autonomous and Connected Mobility Newsletter

16 min

Welcome to The On-Ramp, the new newsletter from Venable's Autonomous and Connected Mobility team. The On-Ramp explores legal and policy developments in the world of autonomous vehicles, smart infrastructure, and emerging mobility technologies, from Capitol Hill to the U.S. Department of Transportation and state capitols around the country. In this issue we review several recent developments, including NHTSA's Standing General Order on advanced driver assistance and autonomous vehicles, as well as provisions of the federal infrastructure bill that are expected to have a major impact on mobility tech investment and deployment.

NHTSA Requests ADAS Information from Automakers as Part of ODI Tesla Investigation

On September 13, 2021, the National Highway Traffic Safety Administration (NHTSA) sent requests to 12 automakers for information on "production vehicles equipped with the ability to control both steering and breaking/accelerating simultaneously under some circumstances" (NHTSA's provided definition of advanced driver assistance systems (ADAS)). The information requests were sent to 12 automakers. The request letter notes civil penalties under 49 U.S.C. § 30165 for the failure to reply promptly and sets a due date of November 17, 2021. Any confidential business information within the requested data is to be sent to the NHTSA Office of the Chief Counsel, rather than the Office of Defects Investigation. Each company has been asked to reply to the same 11 requests:

  1. The number of subject vehicles the company has manufactured for sale, lease, or operation in the U.S., along with data on each individual vehicle manufactured to date, including identifying information; installation, version, and update details on the subject system (software, firmware, and hardware); and the cumulative mileage covered with subject system engaged.
  2. The number of consumer complaints; field reports; crash, injury, or fatality reports; property damage claims; third-party arbitration proceedings; or lawsuits received by a company, or which a company is otherwise aware of, which "relate to, or may relate to the subject system in the subject vehicles."
  3. For each reported incident from request 2, companies must identify the vehicle in question; the version of the system installed at the time of the incident; the timing of system engagement/disengagement over the 30-second period leading to the crash; interventions by crash warning or avoidance systems; timing of the last driver engagement warning prior to the crash; and any injuries or damage caused by the incident.
  4. Copies of all documents, telematics reports/data, and data logs related to each incident, including expert reports produced by or provided to the company as part of lawsuits/arbitration/etc.
  5. Information on the system's operational design domain (ODD) and efforts to prevent use outside of the ODD; the system's maximum control authority over the dynamic driving task (DDT); information/alerts communicated to the driver; methods used to enforce/detect and address driver engagement; conditions that may prompt a required takeover; system interaction with crash avoidance technologies; and a list of items and events that have been specified to customers as being detectable by the system's object and event detection and response (OEDR) capabilities.
  6. All documents on the system that have been issued to customers, dealers, etc. – including draft copies of any communication planned to be issued within the next 120 days.
  7. Any modifications or changes made to the systems that may relate to driver engagement/attentiveness and OEDR, along with information on any planned modifications within the next 120 days.
  8. Strategies for the detection and response to the presence of first responder/law enforcement vehicles and incident scene management tactics in or outside of the roadway while the system is active.
  9. Testing and validation procedures required prior to release of the system or in-field updates, including simulations and data sets used, field testing, and post-release performance comparisons.
  10. Processes for identifying and investigating crashes involving the subject system in operation – including vehicle data collection methods and limits, metrics, and procedures.
  11. Assessments of the impact of the system on each reported incident, including causal or contributory factors, failure mechanisms or modes, and the risk to motor vehicle safety that they pose.
NHTSA Releases Q1 Fatality Estimates

On September 2, 2021, the National Highway Traffic Safety Administration (NHTSA) released its Q1 2021 Fatality Estimates, showing a 10.5% rise in fatalities from motor vehicle crashes over the same period in 2020. NHTSA estimates 8,730 people died in crashes during the first three months of 2021, up from 7,900 fatalities in the first quarter of 2020. NHTSA notes that these increased deaths occurred even as overall driving has declined, with the Federal Highway Administration (FHWA) estimating that vehicle miles traveled (VMT) in Q1 of 2021 decreased by 2.1% (about 14.9 billion fewer miles traveled). According to NTHSA, the increase in deaths raised the fatality rate from 1.12 fatalities per 100 million VMT in Q1 2020 to 1.26 fatalities per 100 million VMT in Q1 2021.

NHTSA also notes that these numbers indicate that the pattern of significant increase in risky driving they observed in 2020 has continued into 2021. This pattern is not evenly distributed across regions, as illustrated by significant increases in fatalities in NHTSA Region 10 (Washington, Oregon, Idaho, Montana, and Alaska) where deaths were up 27% in Q1 2021 from Q1 2020, and in Region 8 (Nevada, Utah, Colorado, Wyoming, and the Dakotas), which had a 28% increase in fatalities. At the same time, neighboring Region 7 (Nebraska, Kansas, Iowa, Missouri, and Arkansas) saw no increase, and Region 3 (Kentucky, West Virginia, Maryland, Delaware, DC, Virginia, and North Carolina) saw a 6% drop in fatalities from Q1 2020 in Q1 2021.

Federal Rail Administration Releases Notice of Funding Opportunity for the Consolidated Rail Infrastructure and Safety Improvements Grant Program

On August 26, 2021, the Federal Railroad Administration (FRA) released a Notice of Funding Opportunity (NOFO) for the Consolidated Rail Infrastructure and Safety Improvements (CRISI) Grant Program. The NOFO states that the CRISI Program funds projects aiming to (1) enhance rail safety; (2) undo inequities caused by transportation and land use policies; (3) create new opportunities for undeserved communities; (4) provide energy-efficient transportation options to confront the effects of climate change; (5) invest in projects that spur economic growth; and (6) ensure that the national freight network can meet the mobility demands of the population.

The funding for awards available under the NOFO is $361,978,796, with $25 million set aside for Capital Improvements for Trespass Prevention, among other set-asides. Eligible projects include highway-rail grade crossing improvement projects, which could include highway traffic signalization, highway lighting and crossing approach signage, or other warning systems.

Eligible applicants for CRISI Grants are (1) a state; (2) a group of states; (3) an interstate compact; (4) a public agency or publicly chartered authority established by one or more states; (5) a political subdivision of a state; (6) Amtrak or another rail carrier that provides Intercity Rail Passenger Transportation; (7) a Class II or Class III railroad; (8) any rail carrier or rail equipment manufacturer in partnership with an entity described in (1) through (5); (9) the Transportation Research Board contracting with an entity in the development of rail-related research; and (10) a nonprofit labor organization representing a class or craft of employees of rail carriers or rail carrier contractors.

GAO Facial Recognition Technology Report

On August 24, 2021, the Government Accountability Office (GAO) released a report on current and planned uses of facial recognition technology (FRT) by federal agencies. The report included summaries of U.S. Department of Transportation (DOT) research and development projects utilizing FRTs for human factors research. The report indicates that in 2020 the DOT did not otherwise deploy or regulate nonfederal uses of FRT systems, nor did it enter into transactions with nonfederal entities for FRTs.

The projects included (1) a Federal Motor Carrier Safety Administration (FMSCA) study of commercial motor vehicle drivers' behavior, including the use of an onboard monitoring system using eye glance analysis to identify fatigue and distraction; (2) Federal Highway Administration (FHWA) use of FRT in its lab for "human factors" research to incorporate highway driver needs into roadway design, construction, repair, and improvement; (3) the Federal Railroad Administration (FRA) Cab Technology Integration Lab's use of FRT to study train engineer eye movements to better understand what objects in the environment capture train engineers' attention as they drive a train; and (4) a Federal Aviation Administration (FAA) study on eye movements of air traffic controllers to observe how they scan their instruments while working.

NHTSA Published Notice and Request for Comments on Event Data Recorders

On August 26, 2021, the National Highway Traffic Safety Administration (NHTSA) published a Notice and Request for Comments for an Information Collection on Event Data Recorders (Notice). The Notice states that NHTSA's intention is to request approval from the Office of Management and Budget (OMB) for a 3-year information collection on event data recorders (EDRs) for vehicles with a gross weight rating of 8,500 pounds or less. The information collection would consist of requirements listed under 49 CFR part 563, which specifies national requirements for vehicles voluntarily equipped with EDRs, including (1) recording 15 essential data elements; (2) recording up to 30 additional data elements if the vehicle is equipped to record these elements; (3) recording these data elements in a standardized format, with specifications for range, accuracy, resolution, sampling rate, recording duration, and filter class; (4) functioning after full-scale vehicle crash tests specified in Federal Motor Vehicle Safety Standard (FMVSS) Nos. 208 and 214; and (5) having the capacity to record two events in a multi-event crash.

The Notice requests public comment on (1) whether the proposed collection of information is necessary for the proper performance of the functions of the U.S. Department of Transportation (DOT), including whether the information will have practical utility; (2) the accuracy of the DOT's estimate of the burden of the proposed information collection; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

Comments on the Notice are due by October 25, 2021.

FMCSA Notice of Proposed Rulemaking on Vehicle Safety Technology and Notice of Application for Exemption for Windshield-Mounted Devices

On July 6, 2021, the Federal Motor Carrier Safety Administration (FMSCA) published a Notice of Proposed Rulemaking (NPRM) concerning vehicle safety technology installed on the interior of commercial motor vehicle windshields.

FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSR) to increase the area within which certain vehicle safety technology devices may be mounted on the interior of commercial motor vehicle windshields. In addition, FMCSA proposes to add several items to the definition of "vehicle safety technology," including automatic emergency braking, driver camera systems, and devices that contain cameras, lidar, radar, sensors, and/or video, among others. The expansion of this definition would allow the newly included items to be mounted on the interior of commercial motor vehicle windshields within the permitted area.

The comment period ended on August 5, 2021

In a related matter, on August 26 2021, the Federal Motor Carrier Safety Administration (FMCSA) filed a Notice of Application for Exemption and Request for Comments on an application submitted by Complete Innovations Inc. The application requests an exemption to allow the Complete Innovations Vision 2.0 device to be mounted lower on the windshield on commercial motor vehicles than is currently permitted. The Vision 2.0 device is a dual-facing camera with advanced driver assistance systems and driver monitoring.

The Federal Motor Carrier Safety Regulations (FMCSR) currently require devices meeting the definition of "vehicle safety technology," including Complete Innovations' Vision 2.0 device, to be mounted (1) not more than 4 inches below the upper edge of the area swept by the windshield wipers, and (2) not more than 7 inches above the lower edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals.

Comments on the application are due by September 27, 2021.

NHTSA ODI Investigation of Tesla

On Friday, August 13, 2021, the National Highway Traffic Safety Administration's (NHTSA) Office of Defects Investigation (ODI) opened a Preliminary Evaluation of multiple Tesla vehicles that have been involved in 11 crashes with roadside or in-road first responders. According to NHTSA, these incidents led to 17 injuries and one death, and most of the incidents took place at night. NHTSA indicates that most of the incidents featured "scene control measures" like emergency vehicle lights, flares, road cones, and/or illuminated arrow boards. In all 11 incidents, NHTSA states, either the Autopilot or Traffic Aware Cruise Control was active at the time of the crash.

The Preliminary Evaluation is focused on the "SAE Level 2 ADAS [advanced driver assistance system] (Autopilot)" in Tesla Models Y, X, S, and 3, model years 2014-2021 (an estimated 765,000 vehicles). The investigation will assess the technologies and methods used to "monitor, assist, and enforce" driver engagement with the dynamic driving task while Autopilot is active. The investigation will also assess the object and event detection and response (OEDR) by vehicles with Autopilot engaged and assess the operational design domain in which Autopilot is functional.

Infrastructure Investment and Jobs Act Passes Senate

On August 10, 2021, the Senate passed the Infrastructure Investment and Jobs Act (Act), with 69 senators voting in favor and 30 against. Following the vote, Senate Majority Leader Schumer moved immediately to consider a Budget Resolution laying out topline numbers for a reconciliation bill concerning healthcare, childcare, and other social spending priorities, which is expected to be voted on within the next week or shortly thereafter.

The Infrastructure Investment and Jobs Act will now be sent to the House of Representatives for consideration. Speaker Pelosi has stated in multiple press conferences that she will not bring the Infrastructure Investment and Jobs Act up for a vote in the House until the Senate passes a reconciliation bill resulting from the Budget Resolution.

In a departure from previous infrastructure legislation, the Act also creates a national pilot program to replace the gasoline tax with a "vehicle miles traveled" (VMT) fee. Proponents say such a fee would capture the road usage from vehicles regardless of how they are powered, providing infrastructure funding as vehicles electrify. Opponents have raised concerns over how such a fee would be distributed across socioeconomic strata, while others have raised privacy concerns over just how the fee would be calculated.

A few additional items of note from the initial spending numbers:

NHTSA and FMCSA Contract Authority – $2.24B: The Act would provide supplemental funding for National Highway Safety Administration (NHTSA) and Federal Motor Carrier Safety Administration (FMCSA) grants for occupant protection, state traffic safety information systems, impaired driving countermeasures, distracted driving, motorcyclist safety, state graduated driver licensing laws, and non-motorized safety.

NHTSA Highway Safety Programs – $1.1B: The Act would provide supplemental appropriations to NHTSA for grants to states to improve driver behavior and safety.

Consideration of measures to promote greater electrification of the transportation sector: The Act directs states to consider measures that promote greater electrification of the transportation sector, including the establishment of electricity rates that promote affordable and equitable electric vehicle charging options; improve the customer experience associated with EV charging, including reducing wait times; accelerate third-party investment in public electric vehicle charging; and appropriately recover the marginal costs of delivering electricity to electric vehicles and electric vehicle charging infrastructure.

University Transportation Centers – $95M: The Act would provide supplemental funding for the University Transportation Centers (UTC) Program, which advances the state of the art in transportation research and technology.

Critical minerals mining and recycling research – $100M: One section of the act would establish multiple initiatives to address supply-chain resiliency, including a critical mineral mining, recycling, and reclamation research and development grant program within the Department of Energy (DOE); a Critical Minerals Subcommittee of the National Science and Technology Council to coordinate science and technology efforts aimed at critical minerals, including recycling and finding substitute materials; and a DOE grant program for pilot projects that process, recycle, or develop critical minerals. This section would authorize $100,000,000 for the pilot project grant program for each of fiscal years 2021 through 2024.

New Mandatory Federal Reporting Obligations for Manufacturers and Operators of Advanced Driver Assistance Systems and Automated Driving Systems

Overview: On June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) issued an order requiring more than 100 manufacturers and operators of automated driving systems (ADS) and advanced driver assistance systems (ADAS) to report detailed information about crashes and "alleged" incidents to the agency on an ongoing basis. NHTSA's Standing General Order 2021-01 (General Order) took effect 10 days from the date of receipt, and entities subject to the order will be required to report crashes meeting certain criteria to NHTSA within one calendar day. ADS manufacturers and operators will be required to report additional types of crashes to NHTSA monthly. Failure to respond fully and truthfully and in a timely manner to the General Order could result in a referral to the Department of Justice for a civil action or civil penalties.

Summary: The General Order requires manufacturers and operators of vehicles equipped with automated driving systems (ADS) and advanced driver assistance systems (ADAS) to report certain crashes occurring when the ADS or ADAS is engaged. The General Order defines a "crash" as any physical impact between a vehicle and another road user or property that "results or allegedly results" in any property damage, injury, or fatality, and includes crashes in which a vehicle contributes or allegedly contributes to another vehicle's impact with another road user or property.

There are two primary categories of crashes that NHTSA is requiring be reported. First, the General Order requires manufacturers and operators of both ADAS and ADS to submit an Incident Report within one calendar day for crashes resulting in (1) hospitalization; (2) fatality; (3) vehicle tow-away; (4) air bag deployment; or (5) involvement of a vulnerable road user. Upon filing a crash report within the one-day window, the entity has 10 days to supplement the initial report with additional information about the crash.

Second, the General Order requires manufacturers and operators of ADS-equipped vehicles to submit, on a monthly basis, Incident Reports for any crashes that occur on a "publicly accessible road" and for which the ADS was engaged within 30 seconds of the crash. There are no additional limiting criteria for this second category of crashes, making its applicability extremely broad.

In the absence of any new or updated Incident Reports, the General Order requires a manufacturer or operator to submit an Incident Report confirming the lack of reportable information on the 15th calendar day of each month, beginning the calendar month after service with the General Order.

On August 5, 2021, NHTSA issued the First Amended Standing General Order (Amended Order), which took effect on August 12, 2021. The First Amended Standing General Order updated the reporting system from the Manufacturer Recalls Portal (MAP) to a web-based reporting form (available here). The Amended Order also confirmed that each Incident Report must provide all information required by the provided forms and cannot incorporate by reference any information from previously submitted Incident Reports.

With certain exceptions, information submitted in an Incident Report must be made "widely available" to the public. The General Order permits manufacturers or operators to claim three exceptions to the public disclosure of information submitted in an Incident Report if NHTSA determines that such information is confidential. The exceptions available, if "appropriate and appropriately supported," include (1) the version of ADAS/ADS with which a vehicle is equipped; (2) whether the vehicle was within its operational design domain; and (3) the narrative description of the crash.

The General Order provides for stiff penalties for noncompliance. Failure to comply could result in a referral to the U.S. Department of Justice for civil action or civil penalties up to $22,992 per day, up to a maximum penalty of $114,954,525.

Conclusions: Entities that are subject to the General Order will need to set up a reporting protocol on short notice or risk facing a NHTSA investigation into noncompliance. While more remains to be seen on the details of the General Order and how it will be carried out and enforced, the message that NHTSA sent is clear: the agency is looking closely at ADAS and AV technology developers and operators, and will be studying the crash reporting data to inform further regulatory actions.