United States: The On-Ramp: An Autonomous And Connected Mobility Newsletter

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 (AVs), smart infrastructure, and emerging mobility technologies, from Capitol Hill to the U.S. Department of Transportation (USDOT) and beyond.

May and June of 2022 saw a number of significant developments in the autonomous and connected mobility industry, including proposed rulemakings from the National Highway Traffic Safety Administration (NHTSA). NHTSA also released data collected as part of a year-long study on the safety performance of advanced vehicle technologies. On the congressional side, a number of key committee meetings were convened to discuss matters relevant to autonomous vehicles and advanced technologies, and the Department of Transportation appropriations bill for fiscal year 2023 was published at the end of June. This issue will highlight these and other notable events from the past three months.

On June 22, 2022, the House of Representatives Committee on Appropriations Subcommittee on Transportation, Housing, and Urban Development released an appropriations bill, which was followed by a Subcommittee markup on June 23 and a full Committee hearing on June 30. The bill would provide the U.S. Department of Transportation with $105.4 billion in budgetary resources, an increase in $2.44 billion over FY22. Highlights from the bill and accompanying committee report include funding for AV testing and research, and funding for the low- or no-emission, Smart Mobility, Safe Streets and Roads for All, and Active Transportation Infrastructure Investment grant programs. The bill was advanced out of Committee and sent to the House floor by a roll call vote of 32-24.

• Commercial trucking safety – How the lack of safe truck parking can be remedied.
• Automated vehicles (AVs) – Whether AVs are safe and what strategies states can employ to establish systems to accommodate AVs.
• The Safe Streets and Roads for All Program and the Highways Safety Improvement Program (HSIP) – Strategies for preventing states from redirecting funds out of the HSIP to other state programs and how the Safe Streets and Roads for All Program will allow entities to plan for and invest in needed safety projects.
• Opportunities for innovation in technology – How data informs decision-making related to highway safety, and how investments from the IIJA can be used to innovate and improve data collection on crashes involving fatalities and serious injuries.

• The Senate Committee on Commerce, Science, and Transportation held a hearing on June 8, 2022 to consider the nomination of Robin Hutcheson to be Administrator of the Federal Motor Carrier Safety Administration (FMCSA). Her nomination was reported favorably out of committee following a markup on June 22, and Ms. Hutcheson's confirmation has been placed on the Senate Executive Calendar. Ms. Hutcheson was appointed as Deputy Administrator and has been serving as Acting Administrator since her appointment by Transportation Secretary Pete Buttigieg in January 2022. Ms. Hutcheson previously served as the Deputy Assistant Secretary for Safety Policy for the U.S. Department of Transportation under the Biden Administration. The FMCSA has been without a Senate-confirmed administrator since October 2019.
• On May 25, 2022, the Senate Committee on Environment and Public Works held a nomination hearing for Joseph Goffman to be Assistant Administrator for the Office of Air and Radiation in the Environmental Protection Agency (EPA). During the hearing, members asked Mr. Goffman questions about how the EPA will work with state environmental regulators to reduce emissions as expressed in the Clean Trucks Plan. Mr. Goffman was also asked how the EPA would ensure the rulemaking is an open process that "doesn't put union workers or U.S. manufacturers at a disadvantage." Further progress on Mr. Goffman's nomination has not been announced at the time of publication.
• On June 21, President Biden announced Dr. Arati Prabhakar as his nominee for the Director of the Office of Science and Technology Policy. If confirmed, Dr. Prabhakar would also serve as the President's Chief Advisor for Science and Technology. Her hearing before the Senate Committee on Commerce, Science, and Transportation is scheduled for July 20 at the time of publication.

On June 15, 2022, the National Highway Traffic Safety Administration (NHTSA) released vehicle crash and incident data that was reported to the agency under its Standing General Order 2021-01: Incident Reporting for Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems (ADAS) (SGO or the Order). The Order, which was issued on June 29, 2021, required many of the manufacturers and operators of ADS and ADAS technology to report within one day any severe crashes that occurred while an ADS or ADAS system is engaged, and report on a monthly basis all vehicle incidents involving ADS technology on a "publicly accessible road." The data release, which includes crash reports from July 2021 to May 2022, is the agency's first of what are expected to be ongoing and continuous releases pursuant to the still-effective SGO.

As part of the data release, NHTSA held a virtual briefing on the release for industry stakeholders, issued a press release detailing the data release to the public, updated the agency's public-facing SGO website, and issued two summaries of the collected data, one on crash reporting for Level 2 ADAS and the other on crash reporting for ADS.

During NHTSA's industry briefing, the agency emphasized that the SGO was designed to promote the safety of ADAS and ADS technology, while encouraging innovation and helping NHTSA learn about the technology. Officials from NHTSA noted that the SGO has helped NHTSA receive crash information faster than through previously existing regulatory means and that the agency is able to intervene more quickly when data becomes "actionable."

As part of the data release, NHTSA included materials that cautioned about certain limitations associated with the reported data. In particular, NHTSA noted that (1) reporting requirements differ for ADS- and ADAS-equipped vehicles; (2) manufacturers learn about vehicle crash data in different ways and at different times after a crash; (3) incident reports contain incomplete or unverified incident report data; (4) the data has been redacted for confidential business information and personally identifiable information; (5) single incidents may be reported more than once by different covered entities; and (6) incident report data are not normalized (i.e., entities are not required to report things like total vehicle miles traveled (VMT) or fleet size). Because of these limitations, NHTSA urged caution when comparing crash data between different covered entities.

Some other takeaways from the collected data include:

• There were 130 crashes reported for ADS-equipped vehicles between July 13, 2021 and May 15, 2022. Of the total reported crashes, one (1) resulted in "serious injuries," and 108 did not involve any injuries. The most common area of reported damage on ADS-equipped vehicles was in the rear of the vehicle.
• There were 392 crashes reported for ADAS-equipped vehicles between July 20, 2021 and May 15, 2022, including six fatal incidents. Of these crashes, 273 were reported by Tesla. The most common area of damage to ADAS-equipped vehicles was in the front of the ADAS-equipped vehicle.

In a comment following the release of the data, NHTSA Administrator Steven Cliff noted that the release of data collected under the SGO is part of NHTSA's "commitment to transparency, accountability and public safety." He added that "new vehicle technologies have the potential to help prevent crashes, reduce crash severity and save lives." Going forward, entities subject to the order remain required to report incidents, and NHTSA plans to publish newly collected data on a monthly basis. There are outstanding questions as to what changes, if any, will be made to future data collection and subsequent publication. NHTSA also did not indicate whether the current data files and accompanying charts will be replaced or updated as new information is published.

On June 22, 2022, the National Highway Traffic Safety Administration (NHTSA) published a Notice of Proposed Rulemaking (NPRM) on Event Data Recorders (EDRs). NHTSA is proposing to amend its regulations regarding the time period for which EDRs collect vehicle crash-related data metrics. The NPRM would extend the recording period from 5 seconds of pre-crash data at a frequency of 2 Hz to 20 seconds of pre-crash data at a frequency of 10 Hz. NHTSA states that the changes in EDR regulations proposed in the NPRM are based on the findings of a NHTSA study and subsequent report that the agency was required to undertake by the Fixing America's Surface Transportation Act (the FAST Act). Comments on the NPRM are due on August 22, 2022.

FHWA Releases a Notice of Proposed Rulemaking and Request for Comments for the National Electric Vehicle Infrastructure Formula Program

On June 9, 2022, the Federal Highway Administration (FHWA) released a Notice of Proposed Rulemaking (NPRM) and Request for Comments (RFC) related to the National Electric Vehicle Infrastructure (NEVI) Formula Program. The NPRM would establish regulations setting minimum standards and requirements for projects funded under the NEVI Formula Program and projects for the construction of publicly accessible electric vehicle (EV) chargers. Following the announcement of the NPRM, the U.S. Department of Transportation (USDOT) in partnership with the U.S. Department of Energy (DOE) and FHWA held a two-day symposium entitled "Charging Forward." The symposium included an EV and charging station showcase, discussion on topics such as equitable access to electric vehicles, overcoming supply chain issues, and best practices in charging infrastructure. FHWA Deputy Administrator Stephanie Pollack, DOE Deputy Secretary David Turk, and USDOT Deputy Secretary Polly Trottenberg delivered opening remarks, highlighting the proposed minimum standards as detailed in the NPRM. Comments on the NPRM must be received on or before August 22, 2022.

The National Highway Traffic Safety Administration (NHTSA) announced on June 8, 2022 that its preliminary investigation warranted an upgrade to an Engineering Analysis (EA). The EA now includes an estimated 830,000 vehicles, about 65,000 more than when it began the evaluation in August 2021. NHTSA states that the upgrade is based on a close review of the crash data collected over the course of the investigation. The preliminary investigation has been upgraded to an EA to (1) extend the existing crash analysis; (2) evaluate additional data sets; (3) perform vehicle evaluations; and (4) explore the degree to which Autopilot and associated Tesla systems may exacerbate human factors or behavioral safety risks by undermining the effectiveness of the driver's supervision. NHTSA also noted that a driver's use or misuse of vehicle components does not necessarily preclude a system defect.

This is in addition to a parallel investigation into allegations of unexpected brake activation in certain Tesla model year 2021-2022 Model 3 & Y vehicles. On May 4, 2022, NHTSA sent a letter to Tesla requesting information on the vehicles in question. According to the letter, the Office of Defects Investigations had received 758 reports of such unexpected braking to date. Tesla was given until June 20, 2022 to respond to the request.

On Tuesday, May 10, 2022, the National Highway Traffic Safety Administration (NHTSA) published in the Federal Register a Notice and Request for Comment (RFC) on an extension of a currently approved information collection titled "Heavy Vehicle Crash Avoidance Systems." The current collection has been authorized by the Office of Management and Budget (OMB) through August 31, 2022, and NHTSA states in the RFC that the currently requested 3-year extension of the collection is necessary because of delays caused by the COVID-19 pandemic. According to the RFC, only one respondent has completed the approved study, with four others still in process.

The data collection in question is a study of drivers' "naturalistic driving experiences" and opinions about crash avoidance systems (CAS) for heavy vehicles, including lane departure warning, forward collision warning, impact alert, and automatic emergency breaking. The study is intended to help understand the real-world performance of CAS technologies and "any unintended consequences that may arise from them." The study will collect drivers' initial beliefs and attitudes about CAS technologies, followed by an approximately three-month period where a data acquisition system is installed in each driver's commercial vehicle, which will collect video of the driver and forward roadway, telemetry and vehicle network data related to driving, and activations of the vehicle's CAS. Drivers are then given a final CAS technology questionnaire at the end of the testing period. The research team conducting the study will attempt to balance the number of vehicles using particular brands of CAS technology, subject to fleet availability and scheduling. The study is intended to have 149 to 170 drivers serve as respondents.

• The Federal Motor Carrier Safety Administration (FMCSA) announced it would award over $462 million in grants through the Motor Carrier Safety Assistance Program (MCSAP) to reduce motor vehicle crashes, fatalities, and injuries. This 52% increase over last year's funding is available through the Infrastructure Investment and Jobs Act. Funding will be available for state and local law enforcement and additional government agencies in all 50 states and U.S. territories for safety inspection of buses and trucks, investigations of motor vehicle carriers for safety concerns, and audits of new trucks and bus companies to reinforce "responsible operation" and "ensure safe movement of goods and passengers."
• On May 20, 2022, Vice President Kamala Harris, along with Environmental Protection Agency (EPA) Administrator Michael S. Regan and White House Infrastructure Coordinator Mitch Landrieu, held an event at Meridian High School in Falls Church, Virginia to announce $500 million in funding now available through the EPA for zero-emission school buses. The Bipartisan Infrastructure Law (BIL) will provide a total of $5 billion in funding to school districts and other eligible school bus operators for low- and zero-emission school buses over the next five years, including this initial $500 million.
• The Notice of Funding Opportunity (NOFO) for the Safe Streets and Roads for All Grant Program ("the Program"), funded at $1 billion for FY2022, was announced May 16, 2022. The Program includes two different types of grants, including (1) Action Plan Grants; and (2) Implementation Plan Grants. Selection criteria for awards include (1) safety impacts; (2) equity, engagement, and collaboration; (3) effective practices and strategies, subsection "innovative practices and technologies"; and (4) climate change and sustainability. Applications are due by 5:00 pm EDT on September 15, 2022.

On June 21, 2022 the Office of Management and Budget (OMB) released the Spring 2022 Unified Regulatory Agenda, a compilation of regulations currently under development or recently completed by various federal agencies. The National Highway Traffic Safety Administration (NHTSA), the Federal Motor Carrier Safety Administration (FMCSA), and the Federal Highway Administration (FHWA) all have a number of rulemakings on the Agenda, though none related to motor vehicle technology rulemaking are in the Final Rule Stage. The regulatory items listed below were updated as follows in the Agenda.

FMCSA

• Automatic Emergency Braking Systems: Expected January 2023
• Safe Integration of Automated Driving Systems-Equipped Motor Vehicles: Expected January 2023

NHTSA

• Updated Event Data Recorder Standard for Time Capture: NPRM released June 2022
• Assessment of Federal Motor Vehicle Safety Standards for Lighting: Expected June 2022 (not published in Spring Regulatory Agenda)
• Expansion of Temporary Exemption Program to Domestic Manufacturers for Research, Demonstrations, and Other Purposes: Expected October 2022
• Consideration for Telltales, Indicators, and Warnings in Vehicles with Automated Driving Systems: September 2022
• Heavy Vehicles Automatic Emergency Braking: Expected January 2023
• Light Vehicle Automatic Emergency Braking (AEB) with Pedestrian AEB: Expected December 2022
• Minimum Performance Standards for Lane Departure Warning and Lane-Keeping Assist Systems: Expected February 2023
• Side Underride Guards on Trailers and Semitrailers: Expected July 2022
• Upgrade of Rear Impact Guard Requirements for Trailers and Semitrailers: Final Rule Announced June 30
• Federal Standards for Hydrogen and Fuel Cell Vehicles: Expected September 2022
• Updates to FMVSS No. 305, Electric-powered Vehicles; Electrolyte Spillage and Electrical Shock Protection: Expected November 2022
• Amend FMVSS No. 141 Minimum Sound Requirements for Hybrid and Electric Vehicles: Expected August 2022

FHWA

• Manual on Uniform Traffic Code Devices: Expected May 2023
• National Electric Vehicle Infrastructure Formula Program: NPRM Released May 2023

FTA Publishes RFI on Transit Bus Automation Research and Demonstrations

On June 3, 2022, the Federal Transit Administration (FTA) published a Request for Information (RFI) on Transit Bus Automation Research and Demonstrations. The RFI was issued in preparation for the FTA's next five-year plan, titled the Strategic Transit Automation Research Plan 2.0. In the RFI, the FTA seeks input from public and industry stakeholders on the next phase of research, collaboration and engagement, technology development, and demonstration of automated driving systems or advanced driving assistance systems necessary to improve the safe, efficient, equitable, and climate-friendly provision of public transportation and sustain the associated workforce. Comments are due August 1, 2022.

By Laura Stefani

The Federal Communications Commission (the Commission) released a public notice for and request for comments on a nationwide waiver of the Commission's rules governing the use of the upper 30 MHz of the 5.9 GHz band for C-V2X-based intelligent transportation systems (ITS). The C-V2X Joint Waiver Parties, a group of automakers, state departments of transportation, and equipment manufacturers, are requesting that the Commission permit them to "collectively deploy and facilitate deployment of" C-V2X ITS technologies immediately in the upper 30 MHz of the 5.9 GHz band. The Commission seeks comments on whether the request contains sufficient information to be granted or whether additional modifications or clarifications would be appropriate. Comments are due by July 28, and reply comments are due by August 29.

The Commission is also considering a rule change that would expand the operational flexibility for short-range radar systems operating in the 60 GHz frequency range (54-67 GHz). 60 GHz radar are generally used for monitoring and detection of objects (and people) at short range (2-10 ft.). The auto industry is eager to obtain regulatory flexibility from the FCC to expand their allowable use, as the radars can be placed into relatively small form factors that fit into objects such as the interior panels of vehicles. One possible use case is occupant presence detection systems for autonomous vehicles to ensure that passengers are seated with seatbelts fastened before the vehicle moves.

The FCC issued waivers last year to allow 60 GHz radar to operate at higher power levels within and just outside vehicles for the primary purpose of monitoring of children left in child seats, and for the secondary purpose of seat belt detection, intruder detection, and automatic lift gate control. The Commission then proposed, in a Notice of Proposed Rulemaking, permanent changes to its rules (47 C.F.R. Section 15.255) to allow for expanded radar operations. Radar companies seek even greater flexibility, to align the FCC rules with European regulations that have been adopted elsewhere around the world, while parties looking to use the band for other services such as communications argue that the FCC's proposal goes too far.

On May 25, 2022, the Lidar Coalition convened its first annual Lidar Policy Summit in Washington, DC. The inaugural summit featured participation by industry and government leaders, including House Committee on Transportation and Infrastructure Chairman Rep. Peter DeFazio (D-OR), and an official from the U.S. Department of Transportation's Intelligent Transportation Systems-Joint Programs Office. The summit focused on such topics as (1) lidar technology applications; (2) automotive safety and vulnerable road uses; (3) state autonomous vehicle (AV) regulation; (4) smart infrastructure; and (5) policy landscapes for emerging transportation technology deployment.

The Lidar Coalition works to promote the deployment of lidar-based intelligent infrastructure and automotive safety technology by engaging in public policy, educational efforts, and thought leadership. Ariel Wolf serves as counsel to the Coalition.

The International Energy Agency (IEA) recently released a report, Global EV Outlook 2022, which examines the current state of electric vehicles (EV), including trends in EV markets, policies to support EV deployment, prospects for EV deployment, battery and supply chain issues, and policies for smart charging and grid integration. The report also includes summaries of recent policy initiatives related to EVs and charging infrastructure in key markets across the world.

According to the report's coverage of heavy-duty vehicles, global sales of electric medium- and heavy-duty trucks more than doubled from 2020 to 2021, though EVs represent less than 0.3% of the total medium- and heavy-duty truck registrations worldwide. EV bus sales increased by 40% in that same period, with the total global electric bus stock at 670,000, about 4% of the global bus fleet. The report notes that while sales of electric trucks are growing in the United States and Europe, China accounted for nearly 90% of EV truck registrations in 2021. Also included in the report is a section on charging trends, which states that the number of publicly available charging points increased by 40% worldwide in 2021, with nearly 500,000 chargers installed that year. The IEA report also identifies China as the leader in publicly available chargers, with 85% of the world's fast chargers and 55% of global slow chargers. Public charger installation in the United States increased by only 12% in 2021, the slowest growth of any major market. The IEA also found that 93% of U.S. chargers are public, including 99% of fast chargers, while 8% of the U.S. population lives more than 10 km from a public charging station. In the report, the IEA states that electrification of buses and trucks will require significant charging capacity per vehicle but will not require a significant increase in the number of chargers, though it estimates that the number of depot chargers will increase from 7,000 today to between 260,000 and 390,000 by 2030.

On May 16, 2022, the U.S.-EU Trade and Technology Council (TTC) released a Joint Statement at the Council's Second Ministerial Meeting in Paris-Saclay, France on May 15-16. In the document the TTC states that the overall objective of the council is to promote U.S. and EC competitiveness and prosperity by increasing transatlantic trade and investment in emerging technologies, strengthening U.S.-EU technological and industrial leadership, and protecting and promoting critical and emerging technologies and infrastructures.

The Joint Statement discusses a number of technology and trade issues that the United States and EU intend to collaborate on, from coordinating export controls and securing supply chains for technology components to addressing online content moderation and data governance. Of significant interest to the automotive sector is the Technology Standards Working Group, which aims to coordinate U.S. and EU efforts in critical and emerging technology standards, and the Information and Communications Technology and Services Group, which is focused on research and innovation beyond 5G and 6G systems, interoperability, and spectrum issues. Moving forward, the TTC working groups will be continuing their discussions and workflows, including the holding of stakeholder meetings during 2022.

* The authors would like to thank Policy Analyst Tess Brennan for her assistance in writing this newsletter.

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