Welcome to The On-Ramp, the newsletter published by 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.

In April and May, Congress and the Biden administration launched efforts to explore the regulation of artificial intelligence (AI) across industry sectors, including transportation. This newsletter includes updates on these AI actions, as well as autonomous and connected mobility-related committee hearings, new federal grant programs, U.S. Department of Transportation enforcement actions, and state autonomous vehicle legislative and regulatory activities.

White House Updates

Release of U.S. Government's National Standards Strategy for Critical and Emerging Technology and Biden Administration Actions on AI

On May 4, 2023, the Biden administration released the U.S. Government's National Standards for Critical and Emerging Technology (Strategy). The Strategy outlines how the U.S. government plans to strengthen U.S. leadership and competitiveness in international standards development for critical and emerging technology (CET). The standards are intended to serve as guidelines to ensure the technology Americans rely on is universally safe and interoperable. The Strategy is also intended to renew the U.S. rules-based approach to standards development and to emphasize the federal government's support for international standards for CET.

The Strategy states that the U.S. government will prioritize standards development for a subset of CET that is essential for U.S. competitiveness and national security. The Strategy also states that there are specific applications of CET that U.S. departments and agencies have determined will impact the global economy and U.S. national security, so standards development activities and outreach will also focus on these applications. The applications include:

• Automated and Connected Infrastructure. This includes smart communities, Internet of Things, and other novel applications.
• Automated, Connected, and Electrified Transportation. This includes surface vehicles of various types—including those that may be electric vehicles (EVs)—and unmanned aircraft systems. This also includes the safe and efficient integration of these applications into smart communities and the transportation system as a whole, including standards to integrate EVs with the electric grid and charging infrastructure.
• Critical Minerals Supply Chains. The Strategy states that the United States will promote standards and support increased sustainable extraction of critical minerals necessary to manufacture renewable energy technologies, semiconductors, and EVs.
• Cybersecurity and Privacy. The Strategy states that cybersecurity and privacy are cross-cutting issues that are critical to enabling the development and deployment of emerging technologies and that promote the free flow of data and ideas.

Also on May 4, the administration announced new actions to promote responsible U.S. innovation in AI. These announcements include a new investment from the National Science Foundation to launch seven new National AI Research Institutes, a commitment from leading AI developers to participate in a public evaluation of their AI systems, and forthcoming draft policy guidance from the Office of Management and Budget on the use of AI systems by the U.S. government. This guidance will establish specific policies for federal departments and agencies to follow in order to ensure their development, procurement, and use of AI systems centers and to safeguard the rights and safety of Americans.

Congressional Activity

Hearings and Nominations

• House Energy and Commerce Subcommittee on Communications and Technology. On May 23, 2023, the House Communications and Technology Subcommittee held a hearing on the oversight and reauthorization of the National Telecommunications and Information Administration (NTIA). Alan Davidson, administrator, NTIA, was the sole witness at the hearing. The hearing covered a range of topics as they relate to matters within NTIA's jurisdiction but was particularly focused on spectrum management. Rep. Randy Weber (R-TX) asked about the use of spectrum for transportation infrastructure, such as signalized intersections and autonomous vehicles. Mr. Davidson said that the use of spectrum in the transportation industry is an area that the Agency is exploring. He noted that there are a range of uses for spectrum in transportation, including vehicle-to-everything (V2X) technologies. Mr. Davidson explained that NTIA is focused on the more general principle that all connected technologies are using spectrum more, and the Agency anticipates those uses will only increase, including in the automotive industry.
• Senator Peters Highlights AVs at Senate Appropriations Committee Hearing. On May 16, 2023, the Senate Appropriations Committee held a hearing to review the president's FY 2024 budget request as it concerns U.S. security, competitiveness, and the U.S.-China relationship. Witnesses at the hearing included: (1) Defense Secretary Lloyd J. Austin III; (2) Secretary of State Antony J. Blinken, and (3) Commerce Secretary Gina M. Raimondo. During the hearing, Senator Gary Peters (D-MI) highlighted the need for the United States to lead on autonomous vehicle (AV) technology, stating that AVs should not only be developed in the United States, but manufactured and deployed here as well.
• House Transportation and Infrastructure Subcommittee on Highways and Transit. On May 10, 2023, the House Highways and Transit Subcommittee held a hearing, "Freight Forward: Overcoming Supply Chain Challenges to Deliver for America." Witnesses included (1) Mr. William "Lewie" Pugh, executive vice president, Owner-Operator Independent Drivers Association; (2) Ms. Anne Reinke, president and chief executive officer, Transportation Intermediaries Association; (3) Mr. David Fialkov, executive vice president, Government Affairs, NATSO, Representing America's Travel Plazas and Truck Stops (NATSO) and SIGMA: America's Leading Fuel Marketers (SIGMA); and (4) Mr. Cole Scandaglia, senior legislative representative and policy advisor, International Brotherhood of Teamsters. During the hearing, Representatives asked questions about the potential impacts of AV technology on the trucking workforce, the safety of the technology, and the role of the federal government in regulating autonomous technology.

U.S. Department of Transportation Activity

NHTSA Issues Notice of Proposed Rulemaking for Automatic Emergency Braking

On May 31, 2023, the National Highway Traffic Safety Administration (NHTSA) announced a Notice of Proposed Rulemaking (NPRM) that would require automatic emergency braking (AEB) and pedestrian AEB (PAEB) systems on all passenger vehicles and light trucks. The rulemaking would create a new Federal Motor Vehicle Safety Standard (FMVSS) to require systems that are capable of reducing the frequency and severity of both rear-end and pedestrian crashes on light vehicles. NHTSA estimates that, if finalized as proposed, this rule would save at least 360 lives a year and reduce injuries by at least 24,000 annually.

The proposed rule would require that all the AEB requirements be phased in within four years of publication of the final rule. All vehicles would be required to meet all requirements associated with lead vehicle AEB and all daylight test requirements for PAEB within three years. With respect to darkness testing, there are lower maximum test speed thresholds that would have to be met within three years for some specified test procedures. All vehicles would have to meet the minimum performance requirements with higher darkness test speeds four years after the publication of a final rule.

The proposed standard includes four requirements for AEB systems for both lead vehicles and pedestrians:

NHTSA Issues Request for Comment on New Car Assessment Program

On May 26, 2023, the National Highway Traffic Safety Administration (NHTSA) issued a Request for Comment (RFC) on new pedestrian crashworthiness tests that measure how well vehicles protect those outside of the vehicle. The proposed changes to the New Car Assessment Program (NCAP) are intended to provide consumers with information about the ability of vehicles to protect pedestrians and incentivize vehicle manufacturers to produce vehicles that provide better protection for vulnerable road users (VRUs). A previous RFC from NHTSA, published in March 2022, focused on specific advanced driver assistance systems (ADAS), including pedestrian automatic emergency braking (PAEB). This RFC is focused solely on NHTSA's efforts to improve pedestrian safety from a crashworthiness perspective by evaluating how well a vehicle protects a pedestrian in the event of a front-end collision between the vehicle and the pedestrian.

NHTSA is proposing to adopt test devices currently used in the European NCAP (Euro NCAP), the majority of Euro NCAP's pedestrian crashworthiness assessment methods, and Euro NCAP's scoring method.

NHTSA Releases Early Estimates of 2022 Motor Vehicle Traffic Fatalities

On April 20, 2023, the National Highway Traffic Safety Administration (NHTSA) released initial projections for traffic fatalities in 2022. The Agency estimates that 42,795 people died in motor vehicle traffic crashes in 2022, representing a small decrease of 0.3% as compared with what was reported for 2021. The Agency projects 23 states to have experienced increases in fatalities in 2022 as compared with 2021, and 27 states, Puerto Rico, and the District of Columbia to have experienced decreases in fatalities in 2022 as compared with 2021. NHTSA uses data from Fatality Analysis Report Systems (FARS), Early Notification (EN) data, and Monthly Fatality Counts (MFC) to make these projections. EN and MFC data are not available to the public.

NHTSA Issues Second Amended Standing General Order on Crash Reporting

In April 2023, NHTSA issued an amended version of the Standing General order 2021-01: Incident Reporting for Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems (ADAS). The Standing General Order (SGO or Order) was originally issued under an emergency authorization and was subject to renewal on a monthly basis. The Order has since been approved by the Office of Management and Budget for a three-year information collection period.

This Second Amended version of the Order took effect on May 15, 2023, superseding the existing SGO as of that date. Changes made in the Second Amended version include:

• Adjustment to the Incident Reporting Requirement. Reporting is now required within 5 days if a "crash results in a vehicle tow-away or an air bag deployment but does not result in a fatality or any individual being transported to a hospital for medical treatment and does not involve a vulnerable road user." Previously these types of crashes were subject to 1-day reporting.
• Reporting of Covered Incidents. Reporting Entities must report a covered incident even if the incident in question has already been reported by another Reporting Entity. Entities are encouraged to include in report narratives the Report ID of any related report and identify any other Reporting Entity that "has or should be expected to submit a report of the same crash." Reporting Entities must also report any covered incident "even if [the manufacturer] is not directly or indirectly responsible for operation of the vehicle"—meaning AV and ADAS developers are responsible for reporting incidents that occur even when a vehicle is operated by a third party.
• New Definition of "Engaged." This new definition sets the required parameters for reporting. Previously the Order had only included instructions to report when the ADAS or ADS system "was engaged" during or prior to the 30 seconds leading up to a crash. The revised version now encompasses situations where a "hand-off" of control from a human to the ADAS or ADS was attempted within those 30 seconds.
• Amended Definition of "Notice." "Notice" does not include incidents that any entity learns about "solely from another entity's [SGO Report] if [the reporting entity has] no additional information to report."

Grants and Funding Opportunities

• ATTAIN Grant Awardees. On May 25, 2023, the Federal Highway Administration (FHWA) announced $52.78 million in grant awards for eight states under the Advanced Transportation Technology and Innovation (ATTAIN) grant program. The program promotes advanced technologies to improve safety and reduce travel times for drivers and transit riders that can serve as national examples of innovation and improve access to transportation for all communities. The eight selected projects will help advance intelligent transportation system technologies that improve mobility and safety. Projects that feature connected and automated technologies include:
  • Arizona: Vehicle-to-Infrastructure (V2I) Enabled Rural Highway Traffic Control Signs. Mohave County, Arizona will receive $1 million to deploy 50 V2I traffic control sign systems throughout rural areas of the county, targeted to high-speed highway segments and intersection approaches to improve safety.
  • Maryland: ROUTE on U.S. 50. The Maryland Department of Transportation was awarded $11.9 million to deploy new technologies and traffic sensors for traffic prediction, signal timing, curve warning, and other messaging to improve safety and mobility along 113 miles of U.S. Route 50.
  • Michigan: The Ann Arbor Connected Environment Reimagined. The University of Michigan Transportation Research Institute was awarded $9.85 million to ready the infrastructure for vehicle manufacturing collaborators to test and deploy new cellular vehicle-to-everything (C-V2X) technologies under the Ann Arbor Connected Environment (AACE) 2.0 project.
  • Minnesota: Minnesota's Autonomous Rural Transit Initiative (MARTI). Minnesota's Department of Iron Range Resources and Rehabilitation was awarded $9.3 million to expand the current MARTI pilot, a free on-demand automated micro-transit service in Grand Rapids, to make transit services more reliable, convenient, and accessible in rural communities, including for wheelchair users.
  • Utah: Utah Connected Communities. Utah's Department of Transportation was awarded $5 million for its Connected Communities program to expand connected vehicle technology and capabilities, including V2X, statewide.
• Reduction of Truck Emissions at Port Facilities Grant Program. On April 27, 2023, the Federal Highway Administration (FHWA) opened applications for the first round of funding under a new $400 million grant program focused on port electrification and efficiency improvements. This Notice of Funding Opportunity (NOFO) for the Reduction of Truck Emissions at Port Facilities Grant Program makes $160 million available for fiscal year 2022-2023 and will focus on projects that reduce emissions from idling trucks at U.S. ports. There is no minimum award amount size, and there is no minimum or maximum number of grants that can be awarded per year. Awards will be limited only by the amount of available federal funding. Eligible project activities include (1) developing port-related infrastructure that reduces emissions from port-related truck idling; (2) using on-truck technologies that reduce emissions from port-related truck idling; (3) using zero- or low-emission powertrains or fuels on trucks; (4) reducing truck congestion within or adjacent to ports, including through enhanced intermodal rail connections; and (5) reducing port-related emissions from idling trucks, including through port electrification and improved efficiency of port operations. Applications close June 26, 2023.
• Intersection Safety Challenge. On April 25, 2023, USDOT launched the Intersection Safety Challenge (the Challenge), which is intended to transform intersection safety through the development of one or more innovative intersection safety systems that identify, predict, and mitigate unsafe conditions involving vehicles and vulnerable road users (VRUs) in real time. The Challenge is focused specifically on the use of technological solutions for intersection safety. USDOT believes that the intersection environment is well suited to innovative, mitigative approaches to improving safety by leveraging, utilizing, and potentially repurposing existing traffic control and support infrastructure. The Challenge is geared toward the development of systems that apply emerging capabilities enabled by advanced sensing, communications technologies, and artificial intelligence and machine learning. The first phase of the Challenge is a two-part prize competition: Stage 1A—Concept Assessment, and Phase 1B—System Assessment and Virtual Testing. The submission period under Stage 1A closes September 25, 2023, and selections will be made by November 30, 2023. The total amount awarded for Stage 1A will be $1,000,000.
• Safe Streets and Roads for All. On April 11, 2023, USDOT opened applications for the Fiscal Year 2023 Safe Streets and Roads for All Grant Program (SS4A). This notice makes available up to $1,177,213,000 for fiscal year 2023 grants. The purpose of the SS4A grant program is to improve roadway safety by reducing or eliminating roadway fatalities and series injuries and is focused on all road users, including pedestrians, bicyclists, public transportation users, motorists, personal conveyance and micro-mobility users, and commercial vehicle operators. SS4A grants are awarded as Planning and Demonstration Grants, for comprehensive safety action plans, and as Implementation Grants, to implement strategies or projects that are consistent with an existing action plan. Eligible activities are broadly defined to include (1) developing or updating a comprehensive safety action plan, including developing an action plan, conducting supplemental planning in support of an action plan, and carrying out demonstration activities in support of an action plan; (2) conducting planning, design, and development activities for projects and strategies identified in an action plan; and (3) carrying out projects and strategies identified in an action plan. Applications close July 10, 2023.

USDOT Events

• NHTSA Relaunches AV TEST Initiative. On May 10, 2023, NHTSA held a webinar discussing the "relaunch" of the Automated Vehicle Transparency and Engagement for Safe Testing Initiative (AV TEST). First initiated in March of 2020, AV TEST is intended to be a hub for publicly available information on AV testing, including an interactive map of active AV testing nationwide. The webinar was led by Andrew Pachuta, AV TEST's project lead, and began with brief remarks by Dr. Chou-Lin Chen, associate administrator, National Center for Statistics and Analysis (NCSA).

  Mr. Pachuta gave an overview of the changes NHTSA has made and continues to make to AV TEST. He noted that this 2023 relaunch follows AV TEST being moved under the NCSA and NHTSA's Office of Communications and Consumer Information. Mr. Pachuta detailed updates that have been made to the AV TEST website, including changes to the website's interactive map that improve participants' ability to show exactly where testing is occurring. NHTSA's communications staff offered to hold one-on-one sessions with AV TEST participants to train them on the new website. In a Q&A session at the end of the event, NHTSA emphasized it wants feedback from participants to ensure the AV TEST website and other AV TEST programming is serving their needs.

  Prior to the webinar, NHTSA posted a notice and request for comment on the administration's intent to extend information collection for AV TEST. This request sought approval to renew the collection for an additional three years, as well as comments on (1) whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the Department'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.

• USDOT Convenes V2X Workshop. On April 28, 2023, USDOT hosted a vehicle-to-everything (V2X) workshop, "Developing a Plan for Enhancing Safety Through Interoperable Connectivity." The workshop was convened to build on stakeholder input received during and since the August 2022 V2X Communications Summit to continue the conversation on developing a national, coordinated deployment plan to enhance safety through interoperable connectivity. Speakers at the workshop included (1) Egan Smith, acting director, Intelligent Transportation Systems Joint Program Office; (2) Dr. Robert Hampshire, deputy assistant secretary/chief science officer, Office of the Assistant Secretary for Research and Technology; (3) Shailen Bhatt, administrator, Federal Highway Administration (FHWA); and (4) Morteza Farajian, executive director, Build America Bureau. The discussion was followed by a presentation from Dr. Govind Vadakpat, program manager, Intelligent Transportation Systems Joint Program Office, on an overview of the "Interoperable Connectivity Plan Framework."
• FMCSA Analysis, Research, and Technology Forum. On April 12, 2023, the Federal Motor Carrier Safety Administration (FMCSA) held its annual Analysis, Research, and Technology Forum. The forum focused on the work being performed by the Analysis, Research, and Technology divisions of FMCSA, with staff members presenting short summaries of key projects.

  During the event, Kim Lambert, acting director, Office of Strategic Planning & Regulations, provided an update on pending FMCSA regulations, including those related to automated driving systems (ADS) and advanced driver assistance systems (ADAS). Ms. Lambert noted that FMCSA is currently in the process of reviewing comments received on the rulemaking for the Safe Integration of Automated Driving Systems-Equipped Commercial Motor Vehicles.

  Presentations on activities related to ADS and ADAS included: (1) Human Factors in ADS-Equipped CMVs; (2) Automated CMV Evaluation (ACE) Program; (3) Model AV Operational Safety Plan for Carriers; (4) Automated CMV Inspection Demonstration and Evaluations; and (5) ADAS Crash Safety Analysis via On-Board Monitoring Systems.

Other Federal Agency Activity

FCC Adopts New, More Flexible Rules for the 60 GHz Spectrum Band

By Laura Stefani

On May 18, 2023, the Federal Communications Commission (FCC) adopted new rules that will enable more innovative and widespread use of small, unlicensed 60 GHz radar systems—both frequency-modulated continuous wave (FMCW) and pulsed—providing a pathway for more vehicle safety technologies. The order allows for higher-power radar operations, which in addition to other changes will create, in FCC Chairwoman Rosenworcel's words, a "radar revolution." The FCC previously had granted a number of waivers for certain vehicular use cases: infant and car seat occupancy detection, vehicle intruder alarms, passenger seat belt detection, and foot gesture tailgate lifts. The new rules lift most limits on use cases and will likely lead to an increase in these radar systems adopted for broader internet-of-things (IoT) and Smart City uses, such as parking space occupancy detection, real-time traffic management, bike radar detection, and many types of gesture control. Additionally, a special set of rules was created to allow for drone operations, which previously had been disallowed.

5.9 GHz Waiver Opens Road to Initial C-V2X Deployment

By Craig Gilley

On April 24, 2023, the Federal Communications Commission (FCC) issued an Order granting a joint waiver request to allow initial deployment of next-generation cellular Vehicle to Everything (C-V2X) technology. C-V2X technology allows vehicles to communicate with one another and with road infrastructure in the upper 20 MHz part of the 5.9 GHz band. The technology is a major advance in vehicle communications and transportation safety.

The waiver request was filed in December 2021 by a group of auto manufacturers, two state transportation agencies, and several original equipment manufacturers. The waiver will allow limited C-V2X deployment and operations by these entities while the FCC continues to work on final rules for C-V2X use in the 5.9 GHz band.

The Order placed several conditions on the waiver:

• Scope. The waiver is limited to just those parties that joined the waiver request. The waiver is also geographically limited to the legal jurisdictions of Utah and Virginia.
• Channel Restrictions. All C-V2X operations under the waiver are limited to the 5905-5925 MHz frequencies using a 20-MHz channel.
• Technical Requirements and Restrictions. The Order provides specific technical parameters for all equipment authorized under the waiver.
• Interference Protection of Existing Operations. In any C-V2X deployments under the waiver, the parties must protect existing wireless and fixed-satellite service users in the band.
• Compliance with Final Rules. The waiver is conditioned on the requirement that each waiver recipient will ensure that authorized operations and devices under the waiver will comply with the FCC's final C-V2X rules once published. The Order recommends that equipment manufacturers take steps to ensure that equipment can be updated or taken offline to ensure such compliance.

Note that several other "me-too" C-V2X waiver requests from other transportation entities are also pending and that, if granted, they would expand the list of entities able to begin deployment of C-V2X technology.

NTIA Request for Comment on AI

On April 13, 2023, the National Telecommunications and Information Administration (NTIA) posted a Request for Comment (RFC) on artificial intelligence (AI) system accountability measures and policies. NTIA intends to use comments to inform a report on AI accountability policy development.

In the RFC, NTIA uses a broad definition of AI that does not specify any particular technical tool or process. This includes references to the National Institute of Standards and Technology's definition of an "AI system," which is "an engineered or machine-based system that can, for a given set of objectives, generate outputs such as predictions, recommendations, or decisions influencing real or virtual environments." NTIA also references the definition of AI used in the White House AI Bill of Rights, which includes "automated systems" with "the potential to meaningfully impact the American public's rights, opportunities, or access to critical resources or services." The International Trade Administration's definition of AI is also used, which includes "AI-driven products across all industry verticals, such as autonomous vehicles [and] robotics and automation technology," among others.

NTIA is requesting comment on what policies can support the development of AI audits, assessments, certifications, and other mechanisms to create trustworthy AI systems. NTIA is requesting responses to a number of questions that fall into these categories: (1) AI Accountability Objectives; (2) Existing Resources and Models for AI Accountability; (3) Accountability Subjects (i.e., where accountability efforts should be focused within the AI value or supply chain); (4) Accountability Inputs and Transparency; (5) Barriers to Effective Accountability; and (6) AI Accountability Policies.

State Activity

General State Update: With most state legislative sessions having concluded, the number of states that expressly allow AV testing or deployment has risen to 33 plus the District of Columbia. Of these jurisdictions, 23 states permit driverless AV deployment, while 10 states plus the District of Columbia permit only AV testing.

In California, the legislature continues to consider AB 316. Among other requirements, the bill would require a "human safety operator" to be physically present in AVs with a "gross vehicle weight of 10,001 pounds or more" when being operated for "testing purposes, transporting goods, or transporting passengers."

CPUC Activity: On May 25, 2023, the California Public Utilities Commission (CPUC or the Commission) published a ruling requesting feedback on proposed new data reporting requirements for the AV program. The proposal would establish new requirements for (1) AV Pilot program quarterly reporting; (2) collision reporting within 10 days for AVs operating under a CPUC deployment permit; and (3) monthly reporting for participants in the AV program. The Commission is requesting feedback on aspects of the proposal, as well as responses to specific questions, available here. Comments on the proposal are due by June 15. The CPUC will hold a public workshop on the same topic on June 22, 2023, and it will accept comments on the workshop until June 27, 2023.

The ruling and associated workshop following two significant developments by the CPUC related to AVs. Specifically, on May 11, 2023, the Commission released two draft resolutions approving applications from two AV operators related to fared AV deployment. Resolution TL-19144 and Resolution TL-19145 will be on the CPUC's June 29, 2023 meeting agenda, during which the Commission may vote on each draft resolution and adopt all or part of them as written. The Commission may also choose at that meeting to postpone a vote until a later time.

Venable Spotlight

Mobility Data Law and Policy Summit

On May 9, 2023, Venable convened its first annual Mobility Data Law and Policy Summit. The Summit explored how policy makers are thinking about emerging frameworks to govern mobility data and how legal practitioners in transportation-adjacent sectors are approaching compliance in this shifting regulatory landscape. In addition to remarks and presentations from Venable partners and attorneys, the event featured speakers from the AV development, automotive manufacturing, car rental, and shared-use mobility sectors. Participants at the Summit also heard from representatives from federal, state, and local governments, including the senior advisor for innovation, Office of the Secretary, U.S. Department of Transportation, as well as the executive director of the Colorado Department of Transportation