Regulatory agenda may offer glimpse into a potential Harris administration’s transportation automation policy

The White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) finally published on July 5 the Spring 2024 edition of the Unified Agenda of Regulatory and Deregulatory Actions that had been due in April, as required by the Regulatory Flexibility Act (5 U.S.C. § 602(a)). The Unified Agenda is the biannual snapshot of the federal administrative state and tracks the thousands of regulatory actions across hundreds of agencies. While imperfect in many ways, it provides valuable insight into forthcoming federal agency actions. 

The Spring 2024 edition marks the last Unified Agenda publication of the Biden administration. Because OIRA generally does not meet its October publication deadline for the fall edition of the Unified Agenda, the spring edition in a presidential election year can offer insight into the initial actions of a subsequent administration (or second term) of the same party. If she wins the Nov. 5 presidential election, Vice President Kamala Harris would likely have some policy differences with the Biden administration, but the Spring 2024 edition still provides a potential glimpse into a Harris administration’s first regulatory steps on transportation automation at the Federal Railroad Administration (FRA) and National Highway Traffic Safety Administration (NHTSA).

I previously examined the transportation rulemakings contained in Fall 2023, Spring 2023, Fall 2022, Spring 2022, Fall 2021, Spring 2021, and Spring 2020 editions of the Unified Agenda for Reason Foundation. From a historical perspective, Figure 1 below shows the current volume of regulatory activity at the U.S. Department of Transportation is typical of what has been observed since the second term of the Obama administration.

The Spring 2024 Unified Agenda lists 222 active rulemaking projects at the U.S. Department of Transportation. Of those 222 projects, 19 are new rulemaking projects first published in the Spring 2024 edition. These new rulemaking projects are listed in Table 1 at the bottom of this article. 

The Unified Agenda contains rules determined to be “significant regulatory actions” or “economically significant” rules, which had been defined by Executive Order (E.O.) 12866 (1993) as regulations that would have an annual impact on the economy of $100 million or more, or otherwise “adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” Rules deemed economically significant are subject to greater scrutiny, most notably a requirement that agencies conduct a benefit-cost analysis of the proposed regulation.

With the changes brought by E.O. 14094 (2023), the annual cost threshold for a rule to be considered a “significant regulatory action” doubled to $200 million, and that threshold will be adjusted every three years for “changes in gross domestic product.” This adjustment was made in Section 3(f)(1) of the 2023 E.O. A discussion of the rationale and implications of this change can be found in my review of the Fall 2023 edition of the Unified Agenda. 

One important implication is that E.O. 14094 makes historical comparisons of the stock and flow of “economically significant rules” more challenging. Fortunately, as part of the Congressional Review Act, Congress itself requires a separate “major” rule designation that retains the traditional $100 million threshold (5 U.S.C. § 804(2)(A)), allowing for continued like-for-like historical accounting. 

Figure 1 preserves the traditional cost threshold by counting “major” rules instead of newly designated “section 3(f)(1) significant” rules. For comparison, there are currently 14 “major” rules and 12 “section 3(f)(1)” rules under development at the Department of Transportation. Of the 19 new rulemaking projects that first appeared in the Spring 2024 edition of the Unified Agenda, five have a “major” status listed as “undetermined,” meaning they could be later determined to be “major” rules as they move through the rulemaking process and economic costs are estimated.

The Spring 2024 edition of the Unified Agenda announces two interesting new rulemaking projects related to transportation automation: the FRA’s on “Automated Track Inspection” (2130-AC96) and NHTSA’s on “Incident Reporting Requirements for Automated Driving Systems and Level 2 Advanced Driver Assistance Systems” (2127-AM63). Both of these notices of proposed rulemaking are scheduled to be published in late 2024, although given the election year, it is more realistic to expect them in 2025 if Harris is elected president in November.

The former rulemaking project on automated track inspection (ATI) follows years of litigation during the Biden administration over freight railroads’ deployment of technology designed to detect track defects better than conventional inspections conducted by visual inspectors. Labor unions representing track inspectors have been strongly opposed, fearing displacement of their dues-paying members by automation. The Biden Federal Railroad Administration shut down railroads’ ATI pilot programs following political pressure from these unions despite FRA acknowledging the safety benefits of enhanced use of ATI.

BNSF Railway challenged the Federal Railroad Administration’s decision to deny it an expanded automated track inspection waiver in federal court, which found in March 2023 that regulators violated the Administrative Procedure Act’s prohibition on “arbitrary and capricious” acts and ordered the FRA to reconsider its decision. In June 2023, the FRA again denied BNSF’s ATI petition. BNSF challenged this second denial in the same federal court, which in June 2024 ruled against FRA and ordered the agency to grant BNSF’s ATI waiver petition.

While FRA under the Biden administration has resisted the railroad industry’s desire to expand the use of ATI, the agency’s newly announced rulemaking aims to require that railroads use ATI because, in FRA’s telling, the technology “can detect defects that may be missed by the human eye.” This professed support for ATI after years of opposition highlights the Biden administration’s inconsistent approach to transportation automation. Harris has not weighed in on this relatively small issue but is unlikely to face significant pressure from within her party to change course. 

With respect to NHTSA’s rulemaking on driving automation incident reporting requirements, this appears to be aimed at codifying the provisions of the Biden NHTSA’s June 2021 Standing General Order (and subsequent amendments) that mandated crash reporting for motor vehicles equipped with automated driving systems (ADS, i.e., “autonomous vehicles”) and certain advanced driver assistance systems.

I’ve criticized NHTSA’s Standing General Order (SGO) for being ill-conceived and badly targeted, which renders its collected data less useful for those seeking to conduct serious safety analyses on the covered technologies. One problem with the SGO’s overly broad focus is that it generates a lot of worthless and poorly formatted data. As driving automation technologies are increasingly deployed at scale, the worsening signal-to-noise ratio will present growing challenges to safety researchers trying to make use of the SGO incident database. Hopefully, NHTSA’s rulemaking will attempt to address these concerns.

But it is worth noting that NHTSA’s Standing General Order is, to date, the most significant action by the Biden administration on driving automation technologies. Both Barack Obama and Donald Trump’s presidential administrations aggressively pursued incorporating these new technologies into the federal safety regulatory framework. Possibly due to its fealty to organized labor—which is strongly opposed to transportation automation—the Biden administration has slowed autonomous vehicle policy development activities to a glacial pace.

This regulatory tempo largo could be sped up following the election. Vice President Harris’ close ties to Silicon Valley, where many automated vehicle developers are based, may lead her potential administration to adopt a more positive and forward-looking view on these critical issues. The Chamber of Progress, a center-left technology industry advocacy group, recently made the case for advancing autonomous vehicle policy “to improve mobility for elderly and disabled people” as part of its “Democratic Cost-of-Living Agenda.”

However, Harris will undoubtedly need to contend with strong opposition from labor unions, a powerful constituency in the Democratic Party. In my view, this union pressure against automation makes it more likely than not that if even Harris wins the November presidential election, the current rulemaking projects in the Biden administration’s pipeline will continue to move forward.

Table 1: U.S. Department of Transportation Rulemaking Projects First Published in the Spring 2024 Unified Agenda

_{Source: Office of Information and Regulatory Affairs, Unified Agenda of Regulatory and Deregulatory Actions, Spring 2024
Note: RIN = Regulation Identifier Number, a unique alphanumeric code assigned by the Regulatory Information Service Center to each rulemaking project listed in the Unified Agenda. An explanation of the Stage of Rulemaking terms can be found on pages 10 and 11 of the Introduction to the Unified Agenda from the Regulatory Information Service Center.}