Welcome to The On-Ramp, the newsletter from Venable's team. The On-Ramp explores legal and policy developments in the world of autonomous vehicles ("AVs"), smart infrastructure, and emerging mobility technologies, from Capitol Hill to the U.S. Department of Transportation and state capitals around the country.
The beginning of 2022 has seen a number of developments around autonomous and connected mobility, including a congressional hearing on autonomous vehicles ("AV"), the release of "Innovation Principles" from the U.S. Department of Transportation, and activity in Washington, Oklahoma, the District of Columbia, and other states.
House Transportation and Infrastructure Subcommittee on Highways and Transit Hearing on "The Road Ahead for Automated Vehicles"
On February 2, 2022, the United States House Transportation and Infrastructure Committee ("Committee") Subcommittee on Highways and Transit ("Subcommittee") held a hearing, "The Road Ahead for Automated Vehicles." The hearing featured eight witnesses from the autonomous vehicle ("AV") industry, state and local government, labor organizations, public interest groups, and academia. Committee and Subcommittee leadership opened the hearing by noting the promise and risks of AV technology. Witnesses focused on the benefits communities have seen from AV deployments, workforce development, local AV pilots, regional technology and data sharing, and the importance of a national strategy on AVs to maximize deployment of AV technology geographically and across many use cases. Witnesses from the AV industry discussed AV safety, economic and supply chain improvements, and the equity benefits of AVs. Following these statements, members questioned witnesses on a number of issues, including:
- Infrastructure – Whether AVs require infrastructure improvements.
- Trucking – How the deployment of AV technology in trucking can help with the driver shortage.
- Information Sharing – How the industry shares information with government stakeholders.
- AV Testing and Deployment – The timeline for AV deployments and regulatory changes needed to accelerate deployments.
- Equity – Opportunities for AVs to improve equity by serving disadvantaged communities, addressing food deserts, and expanding access to mobility.
- Economic Competitiveness – How the U.S. can preserve its leadership role in AV technology innovation.
- Safety – Ways in which the AV industry demonstrates the safety of its technology and how its deployments will improve safety for all users.
Department of Transportation Personnel:
Congress has continued to work on the nominations of senior U.S. Department of Transportation (DOT) personnel. The Senate Commerce Committee advanced the nominations of DOT Deputy General Counsel John Putnam, who has been nominated to be the Department's General Counsel, and National Highway Traffic Safety Administration ("NHTSA") Deputy Administrator Steven Cliff, nominated to be NHTSA's Administrator. Both nominations now await a full vote of the Senate. On December 20, 2021 it was announced that Federal Motor Carrier Safety Administration ("FMCSA") Deputy Administrator Meera Joshi, who had been nominated to be FMCSA's Administrator, would instead be leaving FMCSA to join New York City Mayor Eric Adams' administration as Deputy Mayor for Operations. DOT Deputy Assistant Secretary for Safety Policy Robin Hutcheson has been named Acting FMCSA Administrator. Voting on DOT nominees on the floor of the Senate has been held up by Sen. Rick Scott (R-FL), who has announced he will place a hold on all DOT and Department of Commerce nominees until DOT Secretary Pete Buttigieg and Commerce Secretary Gina Raimondo appear before a hearing on supply chain issues.
U.S. Department of Transportation Activity
The Department of Transportation ("DOT" or "the Department") advanced multiple items related to autonomous and connected mobility and announced several regulatory actions that will occur in the first half of 2022, including those related to the Infrastructure Investment and Jobs Act ("IIJA"), which was signed into law on November 15, 2021. The IIJA creates multiple new grant programs within DOT and directs the Department to issue regulations on driver assist technology, among other regulations.
Secretary Buttigieg Announces New DOT Innovation Principles
On January 6, 2022, Secretary of Transportation Pete Buttigieg announced the Department of Transportation Innovation Principles. Secretary Buttigieg described the relationship between innovation and government policy and expressed concern that innovation has become a buzzword for policymakers in recent years, which he said can cause policymakers to "lose focus" on distinguishing (1) which technologies will develop independently from government; (2) which technologies the federal government should assist in funding; and (3) which technologies raise concerns that require regulation. Describing recent transportation innovations, Secretary Buttigieg stated that the public has witnessed the rise of electric vehicles, autonomous vehicles ("AVs"), drones, cybersecurity in infrastructure, and the "high-stakes race" to combat climate change.
The Secretary announced that DOT is establishing six guiding principles for its policy toward innovation:
- Innovation should serve policy priorities and is not an end in itself; it serves to improve everyday life for the public, including the economy, equity, and climate.
- Innovation should be shaped in ways that help America win twenty-first century global competition.
- Innovation should support workers.
- Innovation policy should allow for experimentation and learn from setbacks.
- Innovation policy should center on opportunities to collaborate between the public sector, the private sector, and academia.
- Innovation policy should be flexible and ready to adapt as technology changes.
Secretary Buttigieg stated that the government should not "have to wait until new technology poses a danger to the public" to act, and that government should be proactive to ensure safety. He added that AVs raise "complicated and even philosophical questions" about safety and equity and noted that Standing General Order 2021-01 was issued to identify and address safety issues while creating a new database for AV crashes. Going forward, DOT will apply these principles while evaluating policy and programs related to emerging technologies.
Autonomous Vehicle Rulemakings
- NHTSA Plans to Withdraw Pilot Program for Collaborative Research on Motor Vehicles with High or Full Driving Automation:
The National Highway Traffic Safety Administration ("NHTSA") plans to withdraw the Pilot Program for Collaborative Research on Motor Vehicle Designs with High or Full Driving Automation in March of 2022. NHTSA had previously announced plans to publish a notice of withdrawal for this program by July of 2021, after publishing an Advanced Notice of Proposed Rulemaking ("ANPRM") on the program in 2018. The proposals originally discussed in the 2018 ANPRM may be considered in a future NHTSA rulemaking, "Expansion of Temporary Exemption Program to Domestic Manufacturers for Research, Demonstrations."
- FMCSA to Publish NPRM on the Safe Integration of Automated Driving Systems-Equipped Commercial Motor Vehicles
In its January 2022 Significant Rulemaking Report, the Department of Transportation stated that the Federal Motor Carrier Safety Administration would be publishing a Notice of Proposed Rulemaking on the safe introduction of automated driving system ("ADS")-equipped commercial motor vehicles ("CMV"). The NPRM will propose changes to the Federal Motor Carrier Safety Regulations related to the operation, repair, and maintenance of ADS-equipped CMVs, and will recognize the difference between human operators and ADS. The NPRM is expected to be published by November 23, 2022.
Motor Vehicle Rulemakings
- NHTSA Issues Final Rule on Adaptive Driving Beam Headlamps:
On February 15, 2022, the National Highway Traffic Safety Administration ("NHTSA") released a final rule, "Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices, and Associated Equipment, Adaptive Driving Beam Headlamps." The final rule amends Federal Motor Vehicle Safety Standard ("FMVSS") No. 108 to (1) enable the certification of adaptive driving beam ("ADB") headlighting systems on vehicles sold in the United States; (2) adopt requirements to ensure ADB systems do not increase glare to other motorists beyond lower beams, including vehicle-level track-test requirements to evaluate glare; and (3) adopt component-level laboratory-tested requirements related to both glare and visibility, as well as other system requirements, such as requirements for manual override and fail-safe operation.
- DOT Seeks Input on Updates to Federal Motor Vehicle Safety Standards for Lighting:
The Fall 2021 Department of Transportation ("DOT") regulatory agenda includes an Advanced Notice of Proposed Rulemaking ("ANPRM") scheduled for the spring of 2022 that will seek comment on considerations on how to update and modernize Federal Motor Vehicle Safety Standard No. 108, Vehicle Lighting, to facilitate new designs and emerging technologies to maintain and improve safety. DOT has indicated that the ANPRM could include updates to the requirements and test procedures for replaceable light sources, dusk sensors, plastic optical materials, semiautomatic beam switching, headlamp mounting orientation, minimum lamp size requirements, and harmonization to international standards.
- DOT to Propose Standardizing Heavy Vehicle Automatic Emergency Braking:
Also included in the Fall 2021 Department of Transportation ("DOT") regulatory agenda is a Notice of Proposed Rulemaking on heavy vehicle automatic emergency braking ("AEB"), scheduled for April 30, 2022. The NPRM will seek comments on a proposal to require and/or standardize equipment performance for AEB on heavy trucks and propose test procedures for measuring the performance of heavy truck AEB systems. This NPRM follows from several years of National Highway Traffic Safety Administration ("NHTSA") research on forward collision avoidance and mitigation technology on heavy vehicles.
- Proposed DOT Light Vehicle Automatic Emergency Braking ("AEB") with Pedestrian AEB:
A Notice of Proposed Rulemaking ("NPRM"), scheduled for April 30, 2022, will propose to require and/or standardize performance for light vehicle automatic emergency braking ("AEB"), including pedestrian AEB ("PAEB") on all newly manufactured light vehicles. The NPRM would specify test procedures under which compliance with the new requirements would be measured for both AEB and PAEB systems.
Infrastructure Investment and Jobs Act Implementation
- FHWA Request for Comments on Infrastructure Investment and Jobs Act Implementation:
On December 1, 2021, the Federal Highway Administration ("FHWA") released a Request for Information ("RFI") on Implementation of the Infrastructure Investment and Jobs Act ("IIJA"). The RFI is intended to solicit information on (i) potential opportunities and challenges for implementing new programs; (ii) potential opportunities and challenges for implementing existing programs modified by the IIJA; (iii) solutions or suggestions as to how FHWA might implement the IIJA; (iv) the necessity for additional guidance, FAQs, or program changes; and (v) areas requiring new and continued research. FHWA specifically requests that commenters provide (1) a detailed description of the action FHWA should take in response to the opportunity or challenge identified; and (2) detailed information that FHWA should consider while implementing the provision(s). FHWA noted that it is particularly interested in any comments on how it can best implement highway formula programs continued by the IIJA, such as the Surface Transportation Block Program, which IIJA continues with some additional eligibilities. The FHWA is interested not only in comments on the new eligibilities, but also in additional opportunities to make improvements or changes to existing programs. The FHWA did not set a due date for comments and noted it would continue to review incoming comments as it implements the IIJA.
- Grant Programs - Notices of Funding Opportunity:
The Department of Transportation ("DOT") Office of the Secretary stated in a briefing with state and local government leaders that it is focused on implementation of two grant programs related to autonomous and connected mobility: (1) the Strengthening Mobility and Revolutionizing Transportation ("SMART") Grant Program; and (2) the Safe Streets and Roads for All Grant Program. DOT has advised that notices of funding opportunity for these programs will be issued 180 days after funding is made available. Funding for these programs was authorized in the IIJA but is still waiting for Congress to pass an appropriations bill that authorizes DOT to start programs.
States continue to advance legislation expressly authorizing AV operations, with Oklahoma, Kansas, Pennsylvania, and West Virginia each actively considering bills. In Oklahoma, HB 3317 and its companion, SB 1541, have both been reported favorably out of the respective committees as of the end of February 2022. In Kansas, SB 379 has received multiple days of hearings in the Senate Committee on Transportation. In Pennsylvania, SB 965 was reported favorably out of the Senate Transportation Committee on January 26, 2022. Finally, in West Virginia, HB 4787 was reported favorably out of the House Judiciary Committee on February 24, 2022. However, a bill seeking to establish a framework for AV operations in Wyoming, SF 16, failed to receive a hearing and will not be considered this year. Notably, SF 16 would have imposed onerous and novel obligations on commercial vehicles equipped with automated driving systems. Additionally, bills that sought to amend the Washington State AV testing program set to go into effect in October 2022 failed this session.
While state legislation remains active, regulatory efforts regarding AVs are also under way. Specifically, on January 28, 2022, the District of Columbia Department of Transportation ("DDOT") proposed regulations for the AV Testing Program authorized by the AV Testing Amendment Act of 2020. The regulations would establish specific permits for testing with test operators, driverless testing, and testing vehicles with unique vehicle designs. It is expected that DDOT will finalize the regulations toward the end of 2022, and entities seeking to test AVs in the District may apply for the new permits immediately upon the publication of the final regulations.
Finally, reflecting states' interest in AVs, the New Jersey Department of Transportation ("NJDOT") recently awarded a $5 million grant to the City of Trenton, New Jersey to fund the Trenton Mobility & Opportunity: Vehicles Equity System ("Trenton MOVES") Project. The grant will support the eventual deployment of 100 AVs that will provide an on-demand transit system in Trenton.