Welcome to The On-Ramp, the newsletter published by Venable's 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.
In this issue, we provide a review of the federal government's rulemaking agenda for the upcoming year, congressional concerns over safety and security challenges in the automotive industry, and state activity in upcoming legislative sessions regarding innovative automotive technologies, among other developments.
White House Updates
Biden Administration Releases a Blueprint for Decarbonization
On January 9, 2023, the Biden administration released a blueprint for decarbonizing the U.S. transportation sector. The U.S. National Blueprint for Transportation Decarbonization was developed jointly by the Department of Energy, the Department of Transportation, the Department of Housing and Urban Development, and the Environmental Protection Agency. In November 2021, the Biden administration established a goal of net-zero greenhouse gas (GHG) emissions by no later than 2050, with an interim, near-term milestone of a 50%-52% reduction from 2005 levels in economy-wide net GHGs by 2023. This blueprint lays out a framework of strategies and actions to remove all emissions from the transportation sector by 2050. The blueprint focuses on three strategies to decarbonize transportation: (1) increasing convenience by implementing system-level and design solutions; (2) improving efficiency through mode shift and more efficient vehicles; and (3) transitioning to clean options by developing zero-emission vehicles and fuels.
Biden Administration Releases the Fall 2022 Unified Regulatory Agenda
On January 4, 2023, the Biden administration released the Unified Regulatory Agenda (Agenda) for fall 2022. The Regulatory Agenda provides information on the rules federal government agencies plan to issue in the near and long term. The Agenda is released twice a year—spring and fall—with the spring 2022 Agenda having previously been released in June 2022. The fall 2022 Agenda did not include any new rulemakings for autonomous vehicles (AVs). Released on January 4, 2023, rulemaking actions related to advanced driver assistance systems (ADAS), automated driving systems (ADS), federal motor vehicle safety Standards (FMVSS), and electric vehicles (EVs) are noted below, along with their expected publication dates:
- Considerations for Telltales, Indicators, and Warnings in Vehicles with Automated Driving Systems: Advanced Notice of Proposed Rulemaking (anticipated for April 2023)
- Heavy Vehicle Automatic Emergency Braking: Notice of Proposed Rulemaking (anticipated for January 2023)
- Updating Event Data Recorder Standard for Time Capture: Final Rule (anticipated for August 2023)
- Expansion of Temporary Exemption Program to Domestic Manufacturers for Research, Demonstrations, and Other Purposes: Notice of Proposed Rulemaking (anticipated for March 2023)
- Minimum Performance Standards for Lane Departure Warning and Lane-Keeping Assist Systems: Notice of Proposed Rulemaking (anticipated for May 2023)
- Federal Safety Standards for Hydrogen Fuel Used in Vehicles: Notice of Proposed Rulemaking (anticipated for April 2023)
- Updates to FMVSS No. 305, Electric-powered Vehicles; Electrolyte Spillage and Electrical Shock Protection: Notice of Proposed Rulemaking (anticipated for April 2023)
- Manual Uniform Traffic Control Devices for Streets and Highways: Final Rule (anticipated for May 2023)
- National Electric Vehicle Formula Program: Final Rule (anticipated for January 2023)
- Automatic Emergency Braking Systems: Notice of Proposed Rulemaking (anticipated for March 2023)
- Safe Integration of Automated Driving Systems-Equipped Motor Vehicles: Notice of Proposed Rulemaking (anticipated for January 2023)
Fiscal Year 2023 Funding Passes in Year-End Appropriations Bill
The bill, signed into law on December 29, 2022, totals $1.7 trillion in funding for the federal government through FY23, which ends in September. The appropriations package provides $106.3 billion in budgetary resources for the U.S. Department of Transportation (USDOT). The legislation also provides USDOT with an additional $15,000,000 under the USDOT-Federal Motor Carrier Safety Administration-Motor Carrier Safety Grant program to continue research on autonomous vehicles in rural communities. The bill also directs the National Highway Traffic Safety Administration to use up to $9,000,000 in funding for autonomous vehicle testing.
Progressive Coalition Sends Letter to FTC and DOJ on "Big Tech" in the Auto Industry
On January 11, 2023, a coalition of 21 advocacy groups sent a letter to Federal Trade Commission (FTC) Chair Lina Khan and Department of Justice (DOJ) Assistant Attorney General for Antitrust Jonathan Kanter expressing concern over antitrust issues relating to technology firms' activity in the automotive industry. The coalition states in the letter that the moves by multiple technology firms into the automotive industry demonstrate technology firms' continued engagement in anticompetitive behavior. The letter says that technology firms already have a presence in automotive entertainment, manufacturing logistics, and vehicle operations software, and are buying companies focused on autonomous driving technologies. The coalition also expresses concern over the amount of consumer data collected through the course of business.
In their letter, the coalition references a letter previously sent by Sen. Elizabeth Warren (D-MA) in November which urged both the FTC and DOJ to address concerns over "emerging competition and consumer protection issues" associated with "Big Tech's" expansion into the automotive industry, including the creation of and investment in autonomous vehicles and driving systems. The coalition also referenced a letter sent by Rep. Jamie Raskin (D-MD) in April which expressed similar concerns over the role of large technology firms in the automotive industry.
The coalition's letter urges DOJ to act to prevent potential labor issues related to automation, stating that by one estimate, the move to self-driving commercial vehicles could eliminate truck and bus driver jobs at the rate of 25,000 a month at the peak of the transition. The letter also states that the FTC should provide proactive regulatory action to ensure that inherently sensitive private information is protected and is not used for surveillance or other harmful purposes.
Sen. Cynthia Lummis and Sen. Mark Kelly Introduce the Truck Parking Safety Improvement Act
On December 1, 2022, Sen. Cynthia Lummis (R-WY) and Sen. Mark Kelly (D-AZ) introduced a bill to create a competitive grant program to improve parking for commercial motor vehicles (CMVs). The bill would direct the Secretary of Transportation to establish a competitive grant program for projects to improve parking for CMVs and improve safety for drivers. In a press release following the bill's introduction, Sen. Lummis stated that "unreliable truck parking" is a "contributing factor" in the supply chain crisis and puts Wyoming drivers at greater risk for accidents. Sen. Kelly added that a lack of accessible and reliable truck parking "makes our roads less safe." Projects eligible for grant funding under the bill would include (1) constructing a safety rest area that includes parking for CMVs; (2) constructing additional CMV parking capacity; (3) reopening of existing weigh stations, safety rest areas, park-and-ride facilities, or other government-owned facilities that are not in use, for CMV parking; (4) constructing or improving existing CMV parking facilities; (5) identifying, promoting, and managing the availability of publicly and privately provided CMV parking; (6) improving the personal safety and security of CMV drivers at parking facilities; (7) improving a parking facility, including through advanced truck stop electrification systems; and (8) maintaining a safety rest area that is open to CMVs. The bill would authorize $755 million in funding over four years for the grant program. Because the bill did not receive a vote during the 117th Congress, it will have to be reintroduced in the current session to be considered.
Rep. Pfluger Sends Letter to the NHTSA Regarding Potential National Security Threats from Foreign-Made AVs
In a November 18, 2022 letter to the National Highway Traffic Safety Administration (NHTSA), Rep. August Pfluger (R-TX) expressed concern over potential national security threats posed by Chinese-made smart and autonomous vehicles (AVs) on U.S. roads. The letter acknowledges that AVs have the potential to improve mobility, reduce preventable accidents, and make roads safer, but argues that a lack of oversight of the Chinese companies' data governance opens the door for a foreign nation to "spy" on American soil.
- Whether the Agency's work with the Department of Defense, FBI, or other law enforcement and defense agencies has included vetting foreign companies that request permits to test autonomous vehicles in America for security risks. He also asked whether there are mandates by NHTSA requiring companies testing autonomous vehicles to keep data collected in America in the United States.
- Whether NHTSA has found or been alerted to any Chinese or other companies collecting data not directly used to improve self-driving systems and sharing it with China.
- What information NHTSA has on the procedures to protect American personal data and data that may pose a national security risk from collection and sharing to foreign adversaries that may exploit such information.
- Whether NHTSA has worked independently, or in collaboration with cities or other local governments, to set parameters for what foreign-based or foreign-owned companies can collect and share abroad while testing autonomous vehicles on American roads and, if so, to explain NHTSA's work.
- Whether NHTSA has worked independently, or in collaboration with cities or other local governments, to limit or prevent Chinese-owned companies from collecting information from Americans and sharing such information abroad and, if so, to explain NHTSA's work.
- Whether NHTSA has worked independently, or in collaboration with cities or other local governments, to limit or prevent Chinese-owned companies from collecting sensitive information from American infrastructure, including information about sensitive government or military facilities and subsequently sharing such information abroad.
In a related development, Speaker McCarthy appointed 10 members to the new House Select Committee on the Strategic Competition between the United States and the Chinese Communist Party on January 23, 2023. The 10 members appointed to serve on the Committee are Rep. Rob Wittman (R-VA), Rep. Blaine Luetkemeyer (R-MO), Rep. Andy Barr (R-KY), Rep. Dan Newhouse (R-WA), Rep. John Moolenaar (R-MI), Rep. Darin LaHood (R-IL), Rep. Neal Dunn (R-FL), Rep. Jim Banks (R-IN), Rep. Dusty Johnson (R-SD), and Chairman Mike Gallagher (R-WI).
Senate Democrats Send Letter to NHTSA on Vehicle Safety
On November 15, 2022, a group of 10 Senate Democrats sent a letter to Acting NHTSA Administrator Ann Carlson to request a status update on the implementation of multiple vehicle safety-related provisions in the Infrastructure Investment and Jobs Act (IIJA). The provisions include sections related to distracted driving detection, certain crashworthiness standards, and performance standards for crash avoidance technology. In the concluding paragraph of the letter, the senators express support for the proposed updates to the New Car Assessment Program and the "release of crash data for autonomous and partially autonomous vehicles." The signatories to the letter were Sen. Ed Markey (D-MA), Sen. Richard Blumenthal (D-CT), Sen. Sherrod Brown (D-OH), Sen. Richard Durbin (D-IL), Sen. Amy Klobuchar (D-MN), Sen. Ben Ray Lujan (D-NM), Sen. Jack Reed (D-RI), Sen. Chris Van Hollen (D-MD), Sen. Elizabeth Warren (D-MA), and Sen. Ron Wyden (D-OR).
U.S. Department of Transportation Activity
U.S. DOT Releases a Research, Development, and Technology Strategic Plan
The plan, released in early January 2023, details the Department's research priorities and strategies for FY2022-2026. The plan identifies a series of "Grand Challenges" intended to guide research within the Department and across the federal government and the nation. The purpose of these Grand Challenges is to (1) achieve zero fatalities across the transportation sector; (2) develop resilient supply chains through an integrated multimodal freight system; (3) create an equitable transportation system that provides safe, affordable, accessible, and multimodal transportation options for all users; (4) pursue a net-zero emissions transportation system; and (5) develop connected intelligent infrastructure that provides people-centered mobility.
Research objectives include advancing transportation safety through safe integration of emerging technologies; evaluating innovative mobility technologies to improve accessibility, equity, and sustainability; expanding access to vehicle electrification and alternative fuels, and supporting the development and deployment of automated technologies.
Department of Transportation agency representatives discussed individual agency efforts to support USDOT's research, development, and technology priorities and initiatives at this year's Transportation Research Board Annual Meeting.
National Highway Traffic Safety Administration Releases New Crash Data
On January 15, 2023, the National Highway Traffic Safety Administration (NHTSA) released new data collected under the Standing General Order on Crash Reporting for crashes involving automated driving system (ADS) and advanced driver assistance system (ADAS) -equipped vehicles. NHTSA previously released an update in November 2022 to reflect data collected through October 15, 2022. The data now includes crashes reported through December 15, 2022.
Highlights from the January data release include the following:
- ADS: There were 21 crashes involving ADS-equipped vehicles reported for the period of October 1 through December 15. The total number of crashes reported since July 2021 for ADS-equipped vehicles is 227 following this most recent update.
- ADAS: There were 135 crashes involving ADAS-equipped vehicles reported for the period of October 1 through December 15. The total number of crashes reported since July 2021 for ADAS-equipped vehicles is 731, and the total number of reported fatalities is 18 following this most recent update.
Other Federal Agency Activity
FCC Proposes New Licensing Rules for Unmanned Aircraft Systems
By Laura Stefani and Craig Gilley
The Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) on January 4, 2023, requesting comment on proposed rules for the operation of unmanned aircraft systems in the 5030-5091 MHz band. The proposed rules would grant unmanned aircraft systems a new right to license spectrum in the band for secure communications.
Unmanned aircraft systems currently operate using unlicensed or experimental licensed frequencies in various other bands. To increase the reliability of the next generation of advanced unmanned aircraft systems, the proposed rules would permit fully licensed operations in the 5030-5091 MHz band, allowing users to take proactive and reactive steps to protect operations against harmful interference. In the NPRM, the FCC is specifically seeking comment on (1) the details of the band's service rules, (2) methods for licensed users to coexist with terrestrial systems and legacy unlicensed users, and (3) methods for licensed users to communicate with air traffic control and manned aircraft operating nearby.
IRS and Department of the Treasury Release Additional Information on Clean Vehicle Provisions of the Inflation Reduction Act
On December 12, 2022, the Internal Revenue Service (IRS) and the U.S. Department of the Treasury released procedures detailing the process through which electric vehicle (EV) manufacturers can submit written reports to certify that their vehicles are eligible for the expanded EV tax credit under the Inflation Reduction Act (IRA). The IRA, signed into law in August 2022, expanded the EV tax credit afforded to consumers who purchase qualifying vehicles. The IRA also amended the tax provision to require that the final assembly of EVs take place in North America in order to be eligible for the credit. The recently published guidance outlines the requirements for manufacturers to demonstrate the eligibility of their vehicles to qualify for the passenger EV credit under Section 30D, the commercial clean vehicle credit under Section 45W, and the used clean vehicle credit under Section 25E.
On December 29, 2022, the IRS and Treasury released FAQs for consumers on the clean vehicle tax credits that will help them better understand how to access the various tax incentives for the purchase of new and used electric vehicles, a notice on the "incremental cost" of vehicles eligible for the commercial clean vehicle tax credit, and a notice of intent to propose regulations on the tax credit for new clean vehicles.
The Treasury also released a white paper on the anticipated direction of the department's and the IRS's upcoming proposed guidance on the critical minerals and battery components requirements, which came into effect on January 1, 2023, and the process for determining whether vehicles qualify under these requirements. Under the IRA, at least 40% of battery components must be sourced from North America or a country the United States has a trade agreement with. By 2029, 100% of battery components and 40% of minerals for batteries must be sourced from North America or a U.S. trade partner. No EVs for sale in the United States currently meet these standards.
NIST Releases a Roadmap for the Creation of the National Semiconductor Technology Center
In November of 2022, the National Institute of Standards and Technology released a roadmap for the creation of the National Semiconductor Technology Center (NSTC), which will be an innovation hub intended to advance semiconductor technology and seed new industries built on the capabilities of a wide range of advanced chips. The CHIPS for America initiative provided $50 billion for the U.S. semiconductor industry, $11 billion of which is dedicated to research and development (R&D). NTSC will be a public-private consortium that will provide a range of stakeholders the opportunity to address challenges and opportunities in the semiconductor ecosystem. The NSTC is intended to strengthen U.S. leadership in semiconductors by supporting and serving as a focal point for R&D across the semiconductor ecosystem. The U.S. Department of Commerce is continuing to engage with stakeholders to further develop plans for the NSTC and plans to release a white paper in the first quarter of 2023 that will summarize the semiconductor landscape and lay out the governance structure and preliminary operating and financial models for the NSTC.
SAE Government/Industry Meeting
SAE International convened a Government/Industry Meeting in Washington, DC on January 17-19, 2023. The meeting brought together representatives from all levels of government and the private sector to discuss the effects of regulation, technology, and customer acceptance on the future of vehicle design. The program was divided into two overarching tracks: Safety and Environmental and Energy Conservation. The keynote address was provided by Gabe Klein, Executive Director, Department of Energy, Joint Office of Energy and Transportation. The meeting also featured a plenary panel on Equitable and Accessible Mobility for All, a roundtable on the Transportation Decarbonization Blueprint, and a SAE/National Highway Traffic Safety Administration cybersecurity workshop.
TRB Annual Meeting
The Transportation Research Board (TRB) held its annual meeting on January 8-12, 2023, in Washington, DC. The meeting featured conversations with cabinet secretaries, presentations from U.S. Department of Transportation (USDOT) agency officials, and panel discussions. The theme for this meeting was "Rejuvenation Out of Disruption: Envisioning a Transportation System for a Dynamic Future." The meeting featured a fireside chat with U.S. Secretary of Transportation Pete Buttigieg and U.S. Secretary of Energy Jennifer Granholm. Jennifer Homendy, National Transportation Safety Board Chair, provided the keynote address.
Many state legislative sessions commenced in January, and states are demonstrating an interest in innovative automotive technologies.
For instance, a number of bills were introduced in January that would impact AV deployment. In Mississippi, SB 2569 was introduced and referred to Senate Highways and Transportation on January 16. The bill would permit operation of AVs, including as for-hire passenger transports and commercial motor vehicles. In Kentucky, HB 135 was introduced on January 6 and would establish a framework for the operation of AVs, similar to frameworks adopted in Oklahoma and West Virginia. In Indiana, SB 141 was introduced on January 9 and referred to the Senate Committee on Homeland Security and Transportation. This bill would prohibit the operation of an "automated vehicle" from transporting goods or passengers without a human operator in the vehicle. "Automated vehicle" is defined to include vehicles in which at least one aspect of a "safety critical control function" occurs without direct input from the driver.
A couple of bills have also been introduced that would regulate certain vehicle offerings. In New Jersey, A4519 was introduced in September 2022 by Assemblyman Paul D. Moriarty (D) and would prohibit certain subscription services in vehicles. The bill passed out of Assembly committees and is now up for consideration by the Assembly floor. In Texas, Rep. Bryan Slaton (R) pre-filed a bill (HB 1031) in advance of the 2023 legislative session that would prohibit the sale of vehicles with "remote vehicle disabling technology" that can be activated by the manufacturer, or the installation of such a device in personal vehicles.
The California Department of Motor Vehicles (DMV) announced in January 2023 that it will hold a public workshop on Friday, January 27, 2023 regarding the development of proposed regulations governing the operation of "Autonomous Light Duty and Heavy-Duty (>10,001 lbs. GVWR) Vehicles." On the legislative front, AB 96 was introduced by Assemblymember Ash Kalra (D) on January 9 and would impose notice and collective bargaining obligations on a public transit employer one year before beginning any procurement process or plan to acquire or deploy "autonomous transit vehicle technology" that would eliminate job functions. A similar bill introduced by Assemblymember Kalra was vetoed by Governor Newsom last session.
Finally, state activity in 2023 follows an array of state-level legislative successes for the autonomous vehicle industry in 2022. Kansas, Oklahoma, Pennsylvania, and West Virginia enacted laws in 2022 that expressly authorize the testing and deployment of AVs. In particular, Pennsylvania's new AV law was signed by Gov. Tom Wolf in November 2022 and will go into effect in July 2023.