State, Federal Roles on Autonomous Vehicles Could Come into Sharper Focus This Fall

The U.S. House of Representatives this week approved bipartisan legislation known as the SELF DRIVE Act (HR 3388), which would give federal law priority over state laws when it comes to regulating the safety and design of autonomous vehicles. Action now moves to the Senate, where another bill is expected to emerge this Fall and where a hearing will take place next week. Meanwhile, U.S. Secretary of Transportation Elaine Chao next week is expected to travel to Michigan to release an update to the autonomous vehicle policy guidance document issued a year ago by the National Highway Traffic Safety Administration (NHTSA). These activities could lead to not only an increase in the number of vehicles being tested around the country in the years ahead but also provide clarity for state policymakers on the role state governments can play in regulating these vehicles going forward.

The SELF DRIVE Act

The Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act, or SELF DRIVE Act for short, would establish a federal framework for the regulation of self-driving cars. As Wired noted this week, Congress has been largely absent from the oversight process so far and in their absence states have stepped in, “creating a patchwork of at least 21 different state laws and guidelines with different purposes, definitions and priorities,” which the industry has said has made it difficult for them to experiment and remain flexible.

Currently, automakers and other companies seeking to test vehicles are required to apply for exemptions to NHTSA Federal Motor Vehicle Safety Standards that assume a human in the driver’s seat and that require standard equipment like brake and acceleration pedals and a steering wheel. Only 2,500 of those exemptions are allowed each year. The House legislation would increase the cap to 25,000 initially and eventually expand it up to 100,000 in three years. Automakers would be required to prove that each self-driving car is at least as safe as a human-operated vehicle in order to be granted an exemption.

The bill also requires companies applying for exemptions to report crashes involving their vehicles, requires them to list those vehicles in a public database, and requires them to ensure levels of data privacy and cybersecurity. In addition, it requires NHTSA to create final rules for self-driving vehicle safety standards within two years.

Reaction to passage of the legislation among those involved with the industry (including some who spoke at our CSG Autonomous & Connected Vehicle Policy Academy in Detroit this summer) has been largely positive this week. Among the reaction:

  • The Alliance of Automobile Manufacturers, the trade group that represents Ford, GM, Toyota and other automakers: “This legislation helps address a variety of barriers that otherwise block the ability to safely test and deploy these vehicle technologies. There is strong bipartisan support for the committee’s self-driving vehicle legislation. We look forward to continue working with members on both sides of the aisle in the House and the Senate to enhance auto safety and expanded mobility that will further solidify U.S. innovation and leadership.”
  • John Bozzella, President of the Association of Global Automakers, the trade group that represents 12 international auto companies with operations in the United States: “Global Automakers believes the SELF DRIVE Act is a critical step toward ensuring that the United States continues to be a leader in accelerating the development and deployment of these technologies. In particular, we believe the bill’s clarification of the respective roles of federal and local governments is essential to both protect the public and drive innovation.”
  • David Strickland, general counsel for the Self Driving Coalition for Safer Streets (a lobbying organization representing Google, Ford, Uber, Lyft, Volvo and others): “Self-driving vehicles offer an opportunity to significantly increase safety, improve transportation access for underserved communities, and transform how people, goods and services get from point A to B. The Coalition is grateful for the House Committee on Energy and Commerce's bipartisan leadership on the SELF DRIVE Act, and we look forward to working with members of the House and Senate to enact autonomous vehicle legislation that enhances safety, creates new mobility opportunities, and facilitates innovation."     
  • Greg Rogers, a policy analyst for the DC-based Eno Center for Transportation, told The Verge: “This will really allow states to focus on their core roles of registering vehicles, enforcing traffic laws, and managing insurance and liability, because these are still critical components of our transportation network.”

But some in the state public policy community expressed concerns about the legislation as it emerged from the House. In a letter to Congressional leaders, officials from the National Governors Association, National Conference of State Legislatures, American Association of State Highway and Transportation Officials, American Association of Motor Vehicle Administrators and the Governors Highway Safety Association offered the following:

“We agree that conformance with Federal Motor Vehicle Safety Standards (FMVSS) is a federal obligation and the function of the FMVSS should remain at the federal level. Traditionally, state laws have been restricted to the operational safety imposed on vehicles after they have been constructed and introduced to public roadways. This interdependence between federal oversight of safety standards in vehicle design and the ability of states to ensure safe vehicle operations will continue to remain essential regarding autonomous vehicles. Unfortunately, the bill currently being considered by the House seeks to significantly expand federal pre-emption of states by moving beyond the traditional definition of motor vehicle safety to encroach on vehicle operations, currently under the states’ purview. … We ask the House to make clear and reaffirm the traditional federal and state roles when it comes to vehicle safety standards and safety of vehicle operations.”

The Verge noted that the legislation as passed could prevent states from passing legislation that the auto industry might consider restrictive, such as New York’s 2017 bill, which requires a state police escort for every test of an autonomous vehicle.

Staff Sgt. Terence McDonnell of the New York State Police’s Traffic Services Section told policymakers at the CSG Autonomous and Connected Vehicle Policy Academy in June that “New York’s autonomous vehicle testing legislation is indeed unique. In an effort to open the doors to autonomous vehicle testing without compromising public safety, the law authorizes the commissioner of motor vehicles to issue permits for autonomous vehicle testing and demonstration but only if such testing is approved by the superintendent of state police and occurs under the direct supervision of the New York State Police. That’s right: Our testing protocol essentially requires a police escort of every test. There could not be any more law enforcement involvement than that.”

The House’s SELF DRIVE Act has other critics as well. The New York Times reported that safety and labor advocates have criticized the exemptions as too broad, which could have the effect of creating weaker standards for things like steering, brakes and airbags on driverless cars.

“This bill threatens the safety of the American public because it will give automakers a huge number of exemptions for safety standards for no reason at all but because they want their autonomous vehicles to be first on the lot,” Joan Claybrook of Advocates for Highway and Auto Safety told the Times.

Senate Bill Coming Soon

The U.S. Senate is working on legislation of its own that is expected to see the light of day this Fall. Republican John Thune of South Dakota and Democrats Bill Nelson of Florida and Gary Peters of Michigan are heading up the effort, Bloomberg noted this week.

Outlining the principles for their legislation at a news conference in June, the Senators emphasized: prioritizing safety, reducing roadblocks, remaining tech neutral, strengthening cybersecurity, reinforcing separate federal and state roles and better educating the public about the emerging technology, The Hill reported.

Thune, who chairs the Senate Commerce, Science and Transportation Committee, has scheduled a hearing for next Wednesday, September 13 that will examine how autonomous trucks and commercial vehicles might fit into Senate legislation. HR 3388 addresses only passenger cars and light trucks. 

The Senate legislation in the works would reportedly continue to allow cities and states to regulate autonomous vehicles on their own terms or even ban them outright.

The Hill reported that draft legislation could be released prior to Wednesday’s hearing.

Revised NHTSA Guidance Also on the Way

U.S. Secretary of Transportation Elaine Chao is expected to unveil revised autonomous vehicle guidelines next week when she visits Mcity, the self-driving vehicle test facility in Ann Arbor, Michigan (which state policymakers had a chance to tour during the June policy academy).

The revisions are to NHTSA’s “Federal Automated Vehicles Policy” issued last September during the last months of the Obama administration. Following that release, a public comment period allowed numerous stakeholders to weigh in on how it might be revised. It’s not yet known the degree to which the revised guidance takes any of those comments into account and the degree to which the Trump administration has put its own stamp on the document.