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Sep 12, 2019

Emerging Technologies Washington Update

This Week: DOT report updates status of automated vehicle, drone regulations; California legislature passes worker classification legislation; House Transportation Subcommittee discusses solutions to roadway congestion.

Week in Review

Congress returned to Washington this week after its annual summer recess with just a handful of legislative days remaining before the fiscal year ends at the end of the month. While the Senate Appropriations Committee takes up its first FY21 spending measures today, House Majority Leader Steny Hoyer (D-MD) has already announced plans to bring a continuing resolution to the House floor next week to avert a government shutdown. Congressional leaders will also look to complete a conference on the FY21 National Defense Authorization Act (NDAA) and bring the final product to the House and Senate floors before September 30.

The Senate spent the week processing pending executive branch nominations, including Kelly Craft’s nomination to serve as US Representative to the United Nations General Assembly and Michelle Bowman’s nomination to sit on the Board of Governors of the Federal Reserve System, while the House began the week considering bills to block oil and gas drilling in the Arctic National Wildlife Refuge, Atlantic and Pacific Coasts, and Eastern Gulf of Mexico.

Today, the tech task force spearheaded by Senator Marsha Blackburn (R-TN) in partnership with Senate Judiciary Committee Ranking Member Dianne Feinstein (D-CA) held another roundtable, this one focused on data portability. The task force’s sessions have been closed to the public. The House Judiciary Subcommittee on Antitrust was scheduled to hold the third in its series of hearings on online platforms and market power this morning with a focus on “The Role of Data and Privacy in Competition,” but the hearing was postponed due to a conflict with a full Committee session. It has not yet been rescheduled.

President Trump will address the House Republicans in Baltimore tonight as the conference convenes for its annual retreat.

On Monday, the White House hosted a summit on artificial intelligence (AI) focused on government use during which representatives from the Departments of Defense and Health and Human Services and the National Institutes of Health reported on how their agencies are leveraging AI today and plan to do so in the future. Elsewhere, Treasury Secretary Steve Mnuchin said Monday that his Department is meeting this week with companies impacted by the new French digital services tax (DST) after the US and France agreed during the recent G7 summit to spend 90 days seeking “an understanding” on an international agreement (for more, read here).

Earlier today, Assistant Attorney General for Antitrust Makan Delrahim delivered remarks at the 46th Annual Fordham Competition Law Institute Conference on International Antitrust Law and Policy. He focused on the interaction between international antitrust authorities and how specific laws, such as the EU General Data Protection Regulation, influence policy and business practices outside of a nation’s jurisdiction. Delrahim noted that decisions that create global effects “[take] away the ability of every other jurisdiction to reach a different conclusion.” To remedy this, he suggested regulators employ concepts of comity to prevent overextension of competition law.

Looking Ahead

The House plans to take up a continuing resolution next week to extend government funding at current levels into November. Majority Leader Hoyer (D-MD) also plans to bring bills to reauthorize the Export-Import Bank and the National Flood Insurance Program (NFIP) to the floor.

Next Tuesday, the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights will hold a hearing on “Oversight of the Enforcement of the Antitrust Laws” during which Federal Trade Commission (FTC) Chairman Joseph Simons and Assistant Attorney General Makan Delrahim will testify. The hearing will focus on the agencies’ recent actions related to the technology sector. The Subcommittee will also hold a hearing on September 24 to examine the impact of recent digital platform mergers.

Eugene Scalia, the President’s nominee to be the next Secretary of Labor, will testify before the Senate Health, Education, Labor, and Pensions Committee next Thursday at 9:00 AM.

DOT Report Updates Status of Automated Vehicle, Drone Regulations

The Department of Transportation (DOT) released its updated Significant Rulemakings Report last Friday, revealing that the National Highway Traffic Safety Administration (NHTSA) plans to publish a notice of proposed rulemaking (NPRM) on Removing Regulatory Barriers for Automated Driving Systems (ADS) in August 2020, with comments due by the end of October 2020. NHTSA also plans to publish a NPRM at the end of January 2020 on a Pilot Program for Collaborative Research on Motor Vehicles with High or Full Driving Automation. Comments would be due by the end of March 2020. A NHTSA rulemaking that would require that all light vehicles be capable of vehicle-to-vehicle (V2V) communication by use of on-board dedicated short-range radio communication (DSRC) devices remains stalled, however. NHTSA completed the NPRM process in 2017, but the report offers no timetable for a final rule, nor an explanation for the delay.

With regard to unmanned aircraft systems (UAS), or drones, the report shows that the Federal Aviation Administration (FAA) is again delaying two rulemakings required by the FAA Extension Act of 2016. DOT now says to expect the NPRM to require UAS to be equipped with remote identification technology in late December 2019, with a comment period ending February 1, 2020. FAA also delayed from October 2019 to September 2020 the date it expects to publish a NPRM on UAS flights near critical infrastructure, as required by the FAA. 

California Legislature Passes Worker Classification Legislation

With the legislative session set to end tomorrow, California lawmakers yesterday passed AB 5, legislation aimed at requiring certain sectors, including the so-called “gig economy,” to classify workers previously deemed independent contractors as employees with access to benefits and certain protections. Governor Gavin Newsom (D) has said he will sign the bill.

The legislation was prompted by the 2018 California Supreme Court Dynamex decision, which imposes a test to determine whether or not a worker is an employee or an independent contractor. Specifically, a worker must be deemed to be doing work outside of the core of the company’s business in order to be classified as an independent contractor.

In addition to those working in the gig economy, the legislation captures other workers, including truck drivers, janitors, and physical therapists. Lawmakers adopted several exemptions before passing the bill, creating carveouts for lawyers, architects, real estate agents, and certain healthcare professionals, among others.

Several gig economy companies have pledged to put nearly $100 million behind a ballot measure to reverse the impact of the legislation, which would go into effect in 2020.

House Transportation Subcommittee Discusses Solutions to Roadway Congestion

On Wednesday, the House Transportation and Infrastructure Subcommittee on Highways and Transit held a hearing entitled “Pricing and Technology Strategies to Address Congestion On and Financing of America's Roads" to discuss how states and localities are utilizing emerging technologies and other programs to reduce roadway congestion. Subcommittee Chairwoman Norton (D-DC) and Ranking Member Davis (R-IL) encouraged witnesses to provide the Subcommittee with suggestions to improve the federal government’s partnerships with local agencies.

The witness panel offered differing suggestions on how various levels of government can reduce roadway congestion. Witnesses representing state and local government described how their transportation departments endorse and continue to use congestion pricing and toll systems to generate revenue for road repair and expansion. Other witnesses representing industry stakeholders urged Congress not to sanction toll programs on existing highways, noting that the majority of roads cannot support infrastructure necessary for tolls and that pricing proposals will not improve traffic caused by commercial trucking.

There seemed to be bipartisan support within the Subcommittee to pursue increases to the federal fuel tax in order to fund the Highway Trust Fund and support infrastructure projects. Full Committee Chairman DeFazio (D-OR) used his opening remarks to comment on the need for an increased fuel tax to improve surface transportation. DeFazio and other subcommittee members also agreed that government should leverage emerging technologies to reduce highway congestion and improve public transit options.


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