Welcome to The On-Ramp, the 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 beyond.
This issue of The On-Ramp provides an overview of mobility-related activities in Washington and elsewhere from July through October of 2022. That period saw major new legislation from Congress on electrification and microchip production, the creation of the Congressional Autonomous Vehicle Caucus, and nominations and confirmations of important U.S. Department of Transportation leadership. There has also been continued regulatory action on emerging transportation technology issues and debate at the state level on issues of transit automation.
White House and Federal Agency Updates
White House OSTP Publishes a "Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People"
On October 4, 2022, the White House Office of Science and Technology Policy (OSTP) announced the publication of the Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People. In a press release, OSTP said that the blueprint is intended to "help guide the design, development, and deployment of artificial intelligence and other automated systems" in a way that protects the American public. The blueprint lays out five guiding principles:
- Safe and Effective Systems: You should be protected from unsafe or ineffective systems.
- Algorithmic Discrimination Protections: You should not face discrimination by algorithms, and systems should be used and designed in an equitable way.
- Data Privacy: You should be protected from abusive data practices via built-in protections, and you should have agency over how data about you is used.
- Notice and Explanation: You should know that an automated system is being used and understand how and why it contributes to outcomes that impact you.
- Human Alternatives, Consideration, and Fallback: You should be able to opt out, where appropriate, and have access to a person who can quickly consider and remedy problems you encounter.
Regarding turning the principles into practice, the blueprint notes that the law and policy landscape for motor vehicles shows that strong safety regulations—and measures to address harms when they occur—can enhance innovation in the context of complex technologies. Furthermore, the blueprint states that the National Highway Traffic Safety Administration can make sure vehicles on the roads are safe, without limiting manufacturers' ability to innovate, through "its rigorous standards and independent evaluation."
Department of Commerce Releases New Export Controls on Advanced Computing and Semiconductor Manufacturing
On October 7, 2022, the Department of Commerce's Bureau of Industry and Security (BIS), which oversees export controls, announced two new rules. The first rule imposes export controls on certain advanced computing semiconductor chips, transactions for supercomputer end uses, and transactions involving certain entities. It also imposes new controls on certain semiconductor manufacturing items and on transactions for certain integrated circuit end uses. The second rule updates regulations related to the BIS Entity List, clarifying that a "sustained lack of cooperation" by a host government may lead to the addition of an entity to the Entity List.
The BIS is expected to release additional rules on oversight of American outbound investment and limits on foreign firms' access to America data. The additional rules are anticipated to be released in November or December.
Implementation of the Inflation Reduction Act of 2022 Includes Funding Opportunities for Transportation Electrification
On August 16, 2022, President Biden signed the Inflation Reduction Act into law, and agencies across the government are now moving to implement its provisions. While most of the Act's provisions will be effective on December 31, 2022, there are exceptions for some of the tax changes and manufacturing incentives. The Act provides $369 billion in climate and clean energy funding, including money for commercial motor vehicle electrification, hydrogen-powered vehicles, charging infrastructure, and battery manufacture, among other provisions to support climate and clean energy policy. Notable aspects of the law include:
Low- and Zero-Emission Heavy-Duty or Commercial Vehicles
- $1 billion in grants and rebates to replace eligible vehicles with zero-emission vehicles and to purchase, install, operate, and maintain infrastructure needed to charge, fuel, or maintain zero-emission vehicles
- $3 billion for the U.S. Postal Service to convert its vehicle fleet to electric vehicles
- A tax credit for the purchase of qualified commercial clean vehicles
Low- and Zero-Emission Vehicle Infrastructure
- $3 billion in loans for reequipping, expanding, or establishing manufacturing facilities to produce low- or zero-emission advanced-technology vehicles
- $2 billion in grants for the domestic production of efficient hybrid, plug-in electric hybrid, plug-in electric drive, and hydrogen fuel cell electric vehicles
- $5 billion in loans for projects that retool, repower, repurpose, or replace energy infrastructure with electric energy
- $10 billion in tax credits to build clean energy manufacturing facilities that make electric vehicles (including light-, medium-, and heavy-duty vehicles), wind turbines, and solar panels
- A tax credit for clean hydrogen production
- A tax credit for alternative fuel refueling properties
The law also includes a $7,500 tax credit for individuals who purchase new electric vehicles and $4,000 for individuals who purchase used electric vehicles.
On August 9, 2022, President Biden signed the CHIPS and Science Act of 2022 into law. The law provides $52.7 billion to boost American semiconductor research, development, and production. Of the $52.7 billion, $39 billion will be for manufacturing incentives, including $2 billion for the legacy chips used in automobiles and defense systems, $13.2 billion in R&D and workforce development, and $500 million for supply chain activities. The bill also includes a 25% investment tax credit for capital expenses for the manufacture of semiconductors and related equipment. In September, the White House announced new leadership roles for the newly established CHIPS for America offices. These offices will be housed within the White House and Department of Commerce. The leaders of these offices will be responsible for the implementation of the funding provided under the act.
On August 8, 2022, Representatives Debbie Dingell (D-MI) and Bob Latta (R-OH) announced the launch of the bipartisan Congressional Autonomous Vehicle Caucus, followed by an official launch event on September 21. The purpose of the caucus is to educate members of Congress and congressional staff on autonomous vehicle (AV) technologies. In a press release Rep. Dingell noted that for the United States to remain at the forefront of innovation, manufacturing, and safety, "we must ensure our nation is engaging all stakeholders, making bold investments, and working across the aisle to get the necessary policies right to support the safe deployment of autonomous vehicles." Rep. Latta added that "autonomous vehicles are the next step forward" in innovative vehicle technology. Rep. Latta has previously introduced legislation in the House regarding AVs, including H.R. 3711, the "SELF DRIVE Act."
Legislation to Establish a Drone Infrastructure Grant Program Passes the House and Is Introduced in the Senate
Senator Jacky Rosen (D-NV) introduced S. 4744, the "Drone Infrastructure Inspection Grant Act," on August 2, 2022, which would direct the secretary of transportation to establish within the U.S. Department of Transportation a drone infrastructure inspection grant program and a drone education and training grant program. The bill would make available $100 million in grants for local governments to use drones to inspect infrastructure and help ease the nation's inspection backlog, with an additional $100 million available for the drone training program. Each program would receive $50 million in appropriations for 2023, with an additional $50 million made available in 2024. The bill was referred to the Senate's Committee on Commerce, Science, and Transportation on August 8. A companion bill passed the House of Representatives on September 13, 2022.
- Senate Confirms Robin Hutcheson to be Administrator of the Federal Motor Carrier Safety Administration (FMCSA). Ms. Hutcheson was confirmed by the Senate on September 22, 2022, after a June 8 nomination hearing before the Senate Commerce, Science, and Transportation Committee. Ms. Hutcheson had previously served as deputy administrator of the FMCSA and had been serving as acting administrator since her appointment by Transportation Secretary Pete Buttigieg in January 2022. FMCSA had been without a Senate-confirmed administrator since October 2019.
- Senate Confirms Dr. Arati Prahbakar to Be Director of the White House Office of Science and Technology Policy (OSTP). Dr. Prabhakar was confirmed by the Senate on September 22, 2022, following a July 20 nomination hearing before the Senate Committee on Commerce, Science, and Transportation. During that hearing, Dr. Prabhakar responded to a question from Senator Gary Peters (D-MI), affirming that she would work with him to promote the safe testing and deployment of autonomous vehicles in the United States.
- Senate Environment and Public Works Committee Holds a Hearing to Consider the Nomination of Shailen P. Bhatt to Be Administrator of the Federal Highway Administration (FHWA). During the September 14, 2022 hearing, senators asked Mr. Bhatt questions related to implementation of the Infrastructure Investment and Jobs Act, challenges to realizing the widespread deployment of electric vehicles, opportunities for the use of innovative technologies in infrastructure, how to address equity and climate change issues, and truck parking. Previously, Mr. Bhatt served as CEO of the Intelligent Transportation Society of America, executive director of the Colorado Department of Transportation, cabinet secretary of the Delaware Department of Transportation, and associate administrator for Policy and Government Affairs for the FHWA.
U.S. Department of Transportation Activity
On September 21, 2022, the Federal Motor Carrier Safety Administration (FMCSA) published a notice and request for comments on a proposed information collection, Human Factors Considerations in Commercial Motor Vehicle Automated Driving Systems. The FMCSA is seeking to evaluate how commercial motor vehicle (CMV) drivers engage with Level 2 advanced driver assistance system (ADAS)- and Level 3 automated driving system (ADS)-equipped CMVs. The study will examine the effect of non-driving secondary task engagement, transfer of control, and training on driver behavior in ADAS- and ADS-equipped CMVs. Comments on the proposed information collection are due November 21, 2022.
The Federal Highway Administration (FHWA) has proposed to remove requirements under the Build America, Buy America provisions found in the Infrastructure Investment and Jobs Act. These provisions, as they apply to FHWA-funded projects, require all steel and iron that are permanently incorporated into a project to be produced in the United States unless a waiver is granted. This provision would also apply to electric vehicle chargers deployed under the National Electric Vehicle Infrastructure (NEVI) Formula Program. As of October 31, 2022, FHWA has been reviewing comments on the proposal.
On September 19, 2022, the National Highway Traffic Safety Administration (NHTSA) released data estimating that 20,175 people died in motor vehicles crashes from January to June of 2022. This figure represents the highest number of fatalities in the first half of a year since 2006. NHTSA also estimates, however, that the second quarter of 2022 represents the first decline in fatalities after seven consecutive quarters of fatalities increasing, beginning in Q3 2020. The fatality rate per vehicle miles traveled (VMTs) is also estimated to have decreased for the first half of 2022, down to 1.27 fatalities per 100 million VMTs from the projected rate of 1.30 per 100 million VMTs in the first half of 2021. Regionally, NHTSA estimates that 5 of the 10 NHTSA-defined regions saw increases in fatalities, while 2 of the 10 had increases in the fatality rate per VMTs. Twenty-nine states are also projected to have experienced increases in fatalities.
These figures come a month after NHTSA released the early estimates for traffic fatalities in Q1 2022. These statistics showed that there were an estimated 9,650 traffic fatalities in Q1 2022, a 7% increase in the estimated fatalities over the same quarter in 2021 (8,935), and the highest number of Q1 fatalities since 2002. Speaking at an event for the launch of NHTSA's Drive Sober or Get Pulled Over Labor Day initiative, then-NHTSA Administrator Cliff noted that while NHTSA had not yet disaggregated the data by cause, about a third of the fatalities are estimated to have been due to driving while impaired.
On August 18, 2022, the National Highway Traffic Safety Administration's (NHTSA) Office of Defects Investigation (ODI) sent a letter to Tesla seeking more information from the company on the role that Tesla vehicle's cabin cameras play in the enforcement of driver engagement and attentiveness. ODI also asked Tesla to explain the design decisions behind the company's driver engagement enforcement, such as any justification for the amount of time a driver is permitted to have their hands off the wheel before receiving an alert. NHTSA is conducting an investigation into Tesla vehicles equipped with the advanced driver assistance system the company calls "Autopilot." In June 2022, NHTSA upgraded that initial probe to an Engineering Analysis and expanded the number of vehicles in question to 830,000.
On August 5, 2022, the Federal Highway Administration (FHWA) published a final rule updating the Manual on Uniform Traffic Control Devices (MUTCD) to provide standards, guidance, options, and supporting information maintaining minimum levels of retroreflectivity for pavement markings. While the minimum levels are based on driver needs, the improvement in markings will also enhance infrastructure's ability to work with advanced driver assistance systems and automated driving systems. The rule came into effect on September 6.
States Submit Plans for National Electric Vehicle Infrastructure (NEVI) Formula Program, and FHWA Outlines NEVI Program Funding for 2023
Established under the Infrastructure Investment and Jobs Act (IIJA), the National Electric Vehicle Infrastructure (NEVI) formula program provides $5 billion in funding over five years to support states' deployment of electric vehicle charging infrastructure. States were required to submit plans by August 1 to be eligible to receive funding under the NEVI formula program, with all 50 states, and the District of Columbia and Puerto Rico, receiving approval from the Federal Highway Administration (FHWA) for their plans by September 27, 2022. States were required to describe in their plans how they intend to distribute the funds. Plans are publicly available and can be found on the Department of Energy's Alternative Fuels Data Center website.
On October 12, the FHWA released $60 billion in fiscal year 2023 for 12 formula programs under its jurisdiction, including the NEVI program. The IIJA apportioned $9,454,400,000 from the General Fund for Highway Infrastructure Programs for fiscal year 2023, of which $1,000,000,000 is set aside for the NEVI program. A notice from the FHWA details the apportionment for the program, including $100,000,000 in funds apportioned for grants to states or localities that require additional assistance to strategically deploy EV charging infrastructure.
On July 21, 2022, the Ford Motor Company (Ford) and the General Motors Company (GM) both submitted petitions to the National Highway Traffic Safety Administration (NHTSA) for temporary exemptions from Federal Motor Vehicle Safety Standards (FMVSS). If approved, these petitions would allow the manufacturers to deploy on public roads certain vehicles that do not comply with all existing FMVSS. As part of the approval process, NHTSA must determine that the exemption is consistent with the public interest and aligned with the objectives of the Vehicle Safety Act prior to the decision whether to grant an exemption. There is no anticipated date by which NHTSA will decide whether to grant the Ford and GM exemptions.
- Ford is petitioning for a two-year temporary exemption from 7 FMVSS for the controlled deployment and use of a vehicle manufactured to operate in both "Automated Vehicle Mode" and human-assisted "Manual Driver Mode," on tested, proven roadways in appropriate weather. If the exemption is granted, Ford will produce no more than 2,500 vehicles for each 12-month period covered by the exemption.
- GM is petitioning for temporary exemption for its "Cruise Origin" vehicle, a passenger vehicle equipped with a Level 4 automated driving system. GM states that its majority-owned subsidiary Cruise will maintain "continuous ownership and control" of the Origin vehicles produced under this exemption. GM is petitioning for exemption from 6 FMVSS and is seeking a two-year exemption to manufacture and deploy into interstate commerce no more 2,500 vehicles for each 12-month period covered by the exemption.
U.S. Department of Transportation Announces the Establishment of the Transforming Transportation Advisory Committee
On July 20, 2022, the U.S. Department of Transportation (DOT) published a notice in the Federal Register establishing the Transforming Transportation Advisory Committee (TTAC) and soliciting nominations for Committee members. The Committee will serve in an advisory capacity and is intended to provide advice and recommendations to the secretary of transportation about needs, objectives, plans, and approaches for multimodal transportation innovation. The TTAC will meet approximately twice a year and report to the secretary via the under secretary for transportation policy, with the DOT's senior advisor for innovation serving as the designated federal officer for the Committee. The Committee is chartered for an initial two-year period, with the opportunity for renewal. A chair and vice chair will be appointed by the secretary from the Committee's members, with the chair serving a nonrenewable two-year term. The 25-member Committee will comprise "safety advocates, experts from academia, representatives of organized labor, technical experts (e.g., automation, data, privacy, cybersecurity), and industry representatives." Membership will include a balance of persons with lived experience and knowledge of the needs of underrepresented groups, along with technical experts. As of October 31, 2022, the DOT had yet to announce the makeup of the committee.
NHTSA Publishes Public Notice and Request for Approval of an Information Collection on Level 2 Driving Systems
On July 20, 2022, the National Highway Safety Administration (NHTSA) published a request for comments on a request for approval for a one-time voluntary information collection from 180 licensed drivers of various ages for a research study of drivers' interactions with Level 2 (L2) systems that can provide longitudinal (adaptive cruise control) and lateral (lane centering) control of the vehicle. The proposed information collection comes as NHTSA is concerned that drivers may over-rely on L2 systems and engage in risky behaviors, such as driving while distracted, drowsy, or under the influence of alcohol or drugs. NHTSA is looking to learn more about how older and young adult drivers use these systems, to better target behavioral countermeasures such as communications and training to ensure that drivers use the systems safely. As of October 31, 2022, NHTSA was in the process of reviewing comments on the proposal.
NHTSA Publishes a Final Rule on Federal Motor Vehicle Safety Standards for Rear Impact Guards and Rear Impact Protection
On July 15, 2022, the National Highway Safety Administration (NHTSA) published a final rule updating the Federal Motor Vehicle Safety Standards for rear impact guards and rear impact protection for trailers and semitrailers. The rule upgrades NHTSA's safety standards addressing rear underride protection in crashes of passenger vehicles into trailers and semitrailers by adopting requirements similar to the Canadian standards for rear impact guards. The updated standards will require rear impact guards to provide sufficient strength and energy absorption to protect occupants of compact and subcompact passenger cars impacting the rear of trailers at 35 miles per hour. The rule will go into effect on January 11, 2023.
On August 25, 2022, the Advocates for Highway and Auto Safety, the Truck Safety Coalition, Citizens for Reliable and Safe Highways, and Parents Against Tired Truckers filed a petition for reconsideration of the rule. The petition states that the final rule does not meet the statutory requirements established by the Infrastructure Investment and Jobs Act because the final rule does not require guards to prevent underride crashes during a 30% overlap crash. As of October 31, 2022, NHTSA had not responded to the petition.
- The U.S. Department of Transportation Releases a Notice of Funding Opportunity (NOFO) for the Strengthening Mobility and Revolutionizing Transportation (SMART) Grant Program. The NOFO was published on September 23, 2022. The SMART grant program, authorized under the Infrastructure Investment and Jobs Act, provides $100 million per year to conduct demonstration projects focused on advanced smart city or community technologies and systems to improve transportation efficiency and safety. Applications are due November 18, 2022.
- The Federal Highway Administration Releases a Notice of Funding Opportunity (NOFO) under the Advanced Transportation Technologies and Innovative Mobility Deployment Program. This funding opportunity will award grants to deploy, install, and operate advanced transportation technologies to improve safety, mobility, efficiency, system performance, intermodal connectivity, and infrastructure return on investment. The NOFO was released on September 19, 2022, and applications are due November 18, 2022.
- The Federal Railroad Administration Releases a Notice of Funding Opportunity (NOFO) under the Consolidated Rail Infrastructure and Safety Improvements Program. This program is intended to invest in a range of projects to improve railroad safety, efficiency, and reliability; mitigate congestion at both intercity passenger and freight rail chokepoints to support more efficient travel and goods management; enhance multimodal connections; and lead to new or substantially improved Intercity Passenger Rail Transportation corridors. The NOFO was released on September 2, 2022, and applications are due December 1, 2022.
- The Federal Transit Administration Releases a Notice of Funding Opportunity (NOFO) for New Driver Assistance and Automation Demonstration Projects. The NOFO for the Advanced Driver Assistance Systems for Transit Buses Demonstration and Automated Transit Bus Maintenance and Yard Operations Demonstration program was released September 22, 2022. The program makes up to $6.5 million in funding available for projects that demonstrate transit bus automation technologies in real-world settings. Applications are due November 21, 2022.
Other Federal Agency Activity
Announced in August of 2022, the updated memorandum of understanding (MOU) signed by Federal Communications Commission Chairwoman Jessica Rosenworcel and National Telecommunications and Information Administration Administrator Alan Davidson aims to strengthen cooperation and collaboration between the agencies and advance a whole-of-government approach to the use and management of the electromagnetic spectrum. The new framework for spectrum management across the two agencies will focus on (1) formalized high-level planning; (2) a longer-term spectrum outlook; (3) greater coordination; (4) improved transparency and data sharing; and (5) greater dispute resolution. The updated MOU is part of the agencies' Spectrum Coordination Initiative, which was first announced on February 15, 2022.
Gov. Newsom Vetoes AB-2441, Which Would Have Required Public Transit Districts to Negotiate with Labor Before Deploying Automated Technologies
On September 29, 2022, California Governor Gavin Newsom vetoed AB 2441, a bill that would have required public transit agencies to notify employee representatives at least 12 months before beginning a procurement process or plan to deploy any "autonomous transit vehicle technology" for public transit services. In his veto message, Gov. Newsom expressed concerns that the bill included ambiguous terminology and needed a more clearly defined scope.
* The authors would like to thank Tess Brennan, an Autonomous ＆ Connected Mobility Analyst in Venable's Washington, DC office, for her assistance in writing this newsletter.