Consumer Safety Technology Act

— 625 — Department of Transportation security, and privacy without hampering innovation. DOT can oversee the testing and deployment of a wide variety of new technologies, allowing communities and individuals to choose what best fits their needs. It is the role of the private sector, not the government, to pick winners and losers in technology development. If a technology underperforms, the private sector should be liable, not the government. The department should ensure a tech-neutral approach to addressing any emerging transportation technology while keeping safety as the number one priority. As part of this, it should work to facilitate the safe and full integration of automated vehicles into the national transportation system. Over time, these advanced technologies can save lives, transform personal mobility, and provide additional transportation opportunities—including for people with disabili- ties, aging populations, and communities where car ownership is expensive or impractical. NHTSA’s and FMCSA’s current regulations were written before the advent of automated vehicles and driving systems. Both operating administrations have issued Advance Notices of Proposed Rulemakings (ANPRMs) that begin the pro- cess of updating their regulations to reflect this new technology. However, these regulations have stalled under the Biden Administration, which has chosen to use the department’s tools to get people to take transit and drive electric vehicles instead of helping people to choose the transportation options that suit them best. l NHTSA should work to remove regulatory barriers by focusing on updating vehicle standards as well as publishing performance-based rules for the operations of automated vehicles (AVs). l FMCSA should work to clarify the regulations to align with DOT’s AV 3.0 guidance, which would allow the drivers to be safely removed from the operations of a commercial motor vehicle. From a nonregulatory point of view, DOT has pivoted from a successful focus on the voluntary sharing of data to improve safety outcomes to adoption of a more compulsory and antagonistic approach to mandating data collection and publica- tion through a Standing General Order related to automated vehicles. This needs to be reversed. Many of these new and innovative technologies rely on wireless communica- tions that depend on the availability and purchase of radio frequency spectrum, a trend that is consistent with what we see in connectivity in our everyday lives. There is a role for DOT in ensuring that in the fight over spectrum, transportation gets its fair share. For technologies to work in transportation, and in particular to work for transportation safety, they have to meet the unique needs of a transportation — 626 — Mandate for Leadership: The Conservative Promise environment. They need to account for rapidly moving and out-of-line-of-sight vehicles as well as pedestrians, bicyclists, and other road users. They should account for the potential for radio interference, and they should address security. This is why in 1999, in response to a request from Congress, the Federal Com- munications Commission allocated the 5.9 GHz band of spectrum to traffic safety and intelligent transportation systems (ITS). In 2020, the FCC took away 45 MHz of the 75 MHz it had added, leaving only 30 MHz for transportation safety and ITS. DOT needs to represent the transportation community and make the case for needed spectrum to the public and Congress. CORPORATE AVERAGE FUEL ECONOMY (CAFE) STANDARDS One reason for the high numbers of injuries on American roadways is that national fuel economy standards raise the price of cars, disincentivizing people from purchasing newer, safer vehicles. Congress requires the Secretary of Transportation to set national fuel econ- omy standards for new motor vehicles sold in the United States. This mandate was established in the Energy Policy and Conservation Act of 1975 (EPCA),6 a law passed in the wake of the Arab oil embargo to promote greater energy efficiency and lessen the national security threat of U.S. dependence on foreign oil. The stat- ute directs DOT to prescribe the “maximum feasible” mileage requirements for different categories of internal-combustion engine (ICE) automobiles for each model year. The standards must be achievable using available ICE technologies running on gasoline, diesel fuel, or similar combustible fuels and must not be set so high as to prevent automakers from profitably producing new vehicles at sufficient volume to meet consumer demand. Congress recognized that the ICE-powered automobile has been instrumen- tal to advancing the mobility and prosperity of the American people and that the domestic mass production of new ICE vehicles generates millions of jobs and remains critical to the overall health of the U.S. economy and the strength of the nation’s industrial base. Accordingly, Congress took care to ensure that the mileage requirements issued by DOT would not undermine the vitality of America’s auto industry or interfere with the market economics that drives consumer demand for new vehicles. This rulemaking authority, which has been delegated by the Secretary to the National Highway Traffic Safety Administration, is exclusive to DOT. EPCA expressly preempts states from adopting or enforcing any different requirement “related to fuel economy standards” for new motor vehicles. While the statute instructs DOT to consult with the Department of Energy and the Environmental Protection Agency (EPA) in formulating its standards, no other federal agency, including EPA, has clear authority to set fuel economy requirements in place of NHTSA. The Clean Air Act7 gives EPA general authority to establish emissions

— 843 — Financial Regulatory Agencies 37. Table 7, “Civil Penalty Fund Significant Activity,” in Consumer Financial Protection Bureau, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2022, November 15, 2022, p. 21, https://files. consumerfinance.gov/f/documents/cfpb_financial-report_fy2022.pdf (accessed March 23, 2023). 38. Ibid. 39. Consumer Financial Protection Bureau, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2022, p. 20. 40. 12 U.S. Code § 5491, https://www.law.cornell.edu/uscode/text/12/5491 (accessed March 23, 2023). 41. Consumer Financial Protection Bureau, “Bureau Structure,” last updated March 15, 2023, https://www. consumerfinance.gov/about-us/the-bureau/bureau-structure/ (accessed March 23, 2023). 42. See Consumer Financial Protection Bureau, “Consumer Financial Civil Penalty Fund Rule,” https://www. consumerfinance.gov/rules-policy/final-rules/consumer-financial-civil-penalty-fund-rule/ (accessed March 23, 2023). 43. Consumer Financial Protection Bureau, “Civil Penalty Fund: Consumer Education and Financial Literacy,” https://www.consumerfinance.gov/enforcement/payments-harmed-consumers/civil-penalty-fund/consumer- education-financial-literacy/ (accessed March 23, 2023). 44. U.S. Government Accountability Office, Consumer Financial Protection Bureau: Opportunity Exists to Improve Transparency of Civil Penalty Fund Activities, GAO-14-551, June 2014, https://www.gao.gov/assets/gao-14-551. pdf (accessed March 23, 2023). 45. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020), https://www.supremecourt.gov/ opinions/19pdf/19-7_n6io.pdf (accessed March 23, 2023). 46. Ibid., p. 37. 47. See 12 U.S. Code § 5497(a)(1), https://www.law.cornell.edu/uscode/text/12/5497 (accessed March 23, 2023). Congress specified that the amount transferred to the CFPB “shall not exceed” 12 percent “of the total operating expenses of the Federal Reserve System…in fiscal year 2013, and in each year thereafter.” Ibid., § 5497(2)(A)(iii). 48. Community Financial Services Association of America v. Consumer Financial Protection Bureau (5th Cir. 2022), pp. 31–32, https://www.ca5.uscourts.gov/opinions/pub/21/21-50826-CV0.pdf (accessed March 23, 2023). 49. Ibid., p. 32. 50. Ibid. (quoting Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2202 n. 8 (2020)). 51. U.S. Supreme Court, “Order List: 598 U.S.,” February 27, 2023, Docket No. 22–448, CFPB et al. v. Com. Fin. Services Assn., et al., https://www.supremecourt.gov/orders/courtorders/022723zor_6537.pdf (accessed March 23, 2023). 52. Devin Watkins, Competitive Enterprise Institute, “Consumer Financial Protection Bureau: Ripe for Reform,” testimony before the Subcommittee on Financial Institutions and Monetary Policy, Committee on Financial Services, U.S. House of Representatives, March 9, 2023, https://docs.house.gov/meetings/BA/ BA20/20230309/115384/HHRG-118-BA20-Wstate-WatkinsD-20230309.pdf (accessed March 23, 2023); Norbert J. Michel, “7 Steps Next Director Can Take to Make the Consumer Financial Protection Bureau Less Awful,” Heritage Foundation Commentary, July 28, 2018, https://www.heritage.org/markets-and-finance/ commentary/7-steps-next-director-can-take-make-the-consumer-financial. 53. The Office of the Comptroller of the Currency (OCC), Federal Deposit Insurance Corporation, Federal Reserve, and National Credit Union Administration. Those functions performed by the Office of Thrift Supervision (OTS) prior to Dodd–Frank should be transferred to the OCC since OTS has merged with OCC. 54. See “Section 1071 of the Dodd–Frank Act” in David R. Burton, “Improving Small Business Access to Capital,” Consumer Financial Protection Bureau Symposium on Section 1071 of the Dodd–Frank Act, Small Business Lending Panel, November 6, 2019, https://files.consumerfinance.gov/f/documents/cfpb_burton-written- statement_symposium-section-1071.pdf (accessed March 23, 2023). 55. 5 U.S. Code Chapter 5, https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5 (accessed March 23, 2023). 56. Consumer Financial Protection Bureau, “Administrative Adjudication Proceedings,” https://www. consumerfinance.gov/administrative-adjudication-proceedings/ (accessed March 23, 2023), and 12 Code of Federal Regulations Part 1081—Rules of Practice for Adjudication Proceedings, https://www.law.cornell.edu/ cfr/text/12/part-1081 (accessed March 23, 2023). — 845 — 28 FEDERAL COMMUNICATIONS COMMISSION Brendan Carr MISSION STATEMENT The FCC should promote freedom of speech, unleash economic opportunity, ensure that every American has a fair shot at next-generation connectivity, and enable the private sector to create good-paying jobs through pro-growth reforms that support a diversity of viewpoints, ensure secure and competitive communi- cations networks, modernize outdated infrastructure rules, and represent good stewardship of taxpayer dollars. OVERVIEW AND BACKGROUND The FCC is an independent regulatory agency that has jurisdiction over inter- state and international communications by radio, television, wire, satellite, and cable.1 Five Commissioners are appointed by the President and confirmed by the Senate for fixed five-year terms.2 The FCC does not have any other presidentially appointed, Senate-confirmed officials. Ordinarily, the five-member FCC is divided politically three to two with a majority of Commissioners from the same political party as the President. The Commissioners’ terms are staggered so that every year at the end of June, one Commissioner’s term expires.3 However, a Commissioner can continue to serve until the end of the next session of Congress (or up to 1.5 years beyond the expiration of the term) if no replacement is confirmed after his or her term ends.4 By law, only a bare majority of Commissioners can be from the same politi- cal party (no more than three when there are five members).5 By tradition, the Chairperson resigns when a new President of a different political party is sworn

— 224 — Mandate for Leadership: The Conservative Promise l Enhanced metrics for accuracy of classification. l A general simplification of the overall system for the benefit of users. On the back end, an ODNI-run declassification process that is faster, nimbler, default-to-automated, and larger-scale should be a priority. Additionally, investments in IT are required to deal with the growing volumes of CNSI collected and produced in the digital age, along with many years’ worth of existing analog and digital holdings that could provide valuable historical insights. An incoming Administration needs to explore options to prioritize funding for innovation in declassification management: for example, by establishing a budget line item specifically for the modernization of declassification or designating fund- ing for program classification management as a special-interest item. The Administration will also need to transition to using technology, including tools and services for managing Big Data (which provide a robust electronic record repository, making information within and across agencies easier to organize and locate and facilitating more rapid review and release capabilities for records of emerging interest); artificial intelligence/machine learning (which, when incor- porated into existing business practices, enables machine interpretation of unstructured text and data, applies decision support technology to enable more consistent classification decisions, and expedites reviews between agencies); and expansion of Commercial Cloud services (which facilitate the rapid testing and deployment of new tools and technologies). However, technology is not a panacea; human expertise in information holdings and routine validation of the technology will always be necessary. With or with- out machine assistance, agencies will require more people and more varied skill sets to improve their ability to meet the electronic records era’s classification and declassification demands and serve an incoming Administration’s goals. Broader U.S. Government and IC Intelligence Needs. Increasingly, con- flicts among U.S. adversaries such as China, Russia, Iran, and North Korea are conducted in the realms of technology and finance.40 This challenge requires new tools, authorities, and technological expertise across the U.S. government, par- ticularly at the Commerce Department’s Bureau of Industry and Security (BIS) and the Committee on Foreign Investment in the United States (CFIUS), which is housed at the Treasury Department. An incoming conservative President should task his DNI and Secretary of Commerce with increasing coordination, the resources needed for BIS and SCIF capacity, and proper and necessary intelligence sharing to counter the activities of multifaceted adversaries such as China. This would include additional work with private-sector expertise, granting clearances to niche sector experts and United States citizen commercial and financial partners as needed. — 225 — Intelligence Community Cover in the Digital Age. Even in the public domain, it is becoming increas- ingly clear that protecting the identities of undercover intelligence officers is difficult in the digital age.41 The truth is that as our daily activities are conducted predominantly in the digital domain, our antiquated system for providing cover to undercover officers has lagged woefully behind the threat from foreign adversaries. The DIA, CIA, and FBI are increasingly aware of this threat and are devoting resources to the problem. Their back-office infrastructure, however, is such that they are still using methods for providing cover from decades past that put valuable intelligence officers at unnecessary risk. How intelligence officers and their fami- lies are taught to use smartphones and social media, travel, conduct banking, and take and share pictures—even how and when they are paid—can make it difficult to protect identities.42 Legends, fake backstories, and identities are often weak, incomplete, and unable to stand up to a basic Google search.43 Officers operat- ing under nonofficial cover are offered even less protection and training to help them succeed. In addition, ubiquitous technical surveillance (UTS) techniques being refined by technologies emanating from the regimes in China and Russia will continue to be highly challenging for intelligence officers. An incoming Administration will need to double down on resourcing and training so that members of the IC will have the expertise they need to operate clandestinely (and successfully) against hard targets. Privacy Shield. For many years, the European Union (EU) has tried to force U.S. companies operating in Europe to follow its data privacy regulations. Misleading claims in the 2013 Snowden leaks destroyed the initial Safe Harbor Framework44 that allowed American companies to transfer data across the Atlantic; its succes- sor, the Privacy Shield Framework,45 was struck down by European courts on the grounds that it provides insufficient protections for EU citizens against hypothet- ical U.S. government surveillance. Those same European courts exempted the intelligence services of EU member states from the standards applied to the U.S., suggesting that trade protectionism may be the real motive behind data privacy regulations. In 2022, the Biden Administration negotiated a new agreement, the Trans-At- lantic Data Privacy Framework,46 intended to withstand European legal challenges. Given the fate of its predecessors, it is not certain that it will survive. Executive Order 14086, “Enhancing Safeguards for United States Signals Intelligence Activi- ties,”47 implements this new framework by attempting to align signals intelligence collection practices with European privacy regulations. At most, the executive order’s changes will be helpful support for the framework in future European litigation; at worst, they could throw sand in the gears of important intelli- gence programs. An incoming conservative President should reset Europe’s expectations. Brus- sels has always arbitraged the difference between being a military ally against, for