By Alex Beckmann
On Friday, September 8, the Senate Commerce, Science, and Transportation Committee released a draft of its automated vehicle legislation. Senate Commerce Committee Chairman John Thune (Republican, South Dakota) and Senator Gary Peters (Democrat, Michigan) have been leading these legislative efforts in the Senate for the past several months.
The release of the Senate discussion draft follows action in the House of Representatives, which on Wednesday, September 7, passed by voice vote its bipartisan automated vehicle legislation, H.R. 3388, the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act or the “SELF DRIVE” Act. The House Energy and Commerce’s subcommittee on Digital Commerce and Consumer Protection (DCCP) has been examining the issue since late 2016 and actively considering legislation since June.
The impetus for both bills comes from a desire of manufacturers and operators of automated vehicles to move away from the current patchwork of each state having different rules and regulations when it comes to the testing and deployment of automated vehicles, and instead to establish a relatively uniform standard at the federal level.
The House legislation does a number of things, including:
- delineating the federal and state/local roles when it comes to regulating automated vehicles via a preemption clause;
- establishing a specific exemption from federal motor vehicle safety standards to test automated vehicles;
- raising to 100,000 over three years the number of safety exemptions a manufacturer can get to test vehicles; and
- establishing an automated vehicle advisory committee to advise the Secretary of U.S. DOT on a number of issues related to automated vehicles.
The Senate discussion draft preempts any state or local government from passing a new, or enforcing an existing, law or regulation in any of the nine categories of data manufacturers are required to submit to the Secretary of Transportation as part of the Safety Evaluation Report required in section 9 of the draft. The nine areas preempted in the draft bill are:
- how the AV avoids safety risks, including whether its safety systems are functioning properly;
- data collection of an AV’s performance, including its crashes and disengagements;
- human-machine interface;
- capabilities of the automated vehicle;
- post-crash behavior;
- compliance with traffic laws and rules of the road; and
- the behavior and operation of the AV during on- or off-road testing, including an AV’s crash avoidance capability.
The Committee’s stated intent is to apply the existing federal-state preemption framework, which mainly deals with the design, construction, and performance of vehicles, to automated vehicles. As written, the preemption language seems to be broader than the existing framework, because it would preempt any state or local law and regulation related to the areas listed above, rather than just laws dealing with the design, construction, or performance of automated vehicles in those areas.
Level of Exemptions
Similar to the House, the Senate would allow manufacturers to apply for an exemption from federal motor vehicle safety to test automated vehicles. Over a period of three years, the Senate draft would raise the cap on exemptions per manufacturer for testing automated vehicles from 2,500 to 100,000. There are potentially up to 20 manufacturers interested in testing automated vehicles, so if each manufacturer maximizes the 100,000 exemptions allowed, that could amount to up to 2 million automated vehicles testing on the road. There are no restrictions in the bill on where automated vehicles could test or restrictions on how many automated vehicles could be tested in a given area. Theoretically, a manufacturer could test all 100,000 vehicles in one city or state.
Safety Evaluation Report
The Senate discussion draft requires that manufacturers receiving an exemption to test AVs submit a Safety Evaluation Report (SER) to the U.S. DOT Secretary as a condition for receiving the exemption. The draft specifies that the manufacturer’s SER should provide a description of how the automated vehicle would address the same nine areas mentioned above that could be preempted.
Furthermore, the draft requires the Secretary to make this data publicly available. However, a manufacturer may redact the data it considers to be a trade secret or confidential business information, and the draft does not give the Secretary the authority to challenge a manufacturer’s determination in this area.
Finally, the Secretary is specifically prohibited in the draft from conditioning pre-approval of the testing, deployment, or sale of automated vehicles to consumers on a review or approval of the Safety Evaluation Report submitted by manufacturers. The draft does not limit the National Highway Traffic Safety Administration’s current recall, rulemaking, or enforcement powers.
Automated Vehicle Advisory Committee
The Senate discussion draft proposes a new “Highly Automated Vehicles Technical Safety Committee” to advise the U.S. DOT Secretary on a host of issues related to the safety of automated vehicles. The discussion draft specifies that the Secretary shall select 12 members of the Committee from industry, safety advocates, and state and local government representatives but doesn’t actually require that the Committee select representatives from each of those groups. So theoretically, the Secretary could appoint 12 members from industry and zero from state and local governments or vice versa.
One issue totally left out of the House bill is whether commercial vehicles (defined as motor vehicles over 10,000 pounds) should be included in this bill, which is a controversial topic. The Senate draft bill in its current form specifically leaves out commercial vehicles, but the Senate Commerce Committee held a hearing this past Wednesday specifically to examine whether commercial vehicles should be included in the bill. A number of witnesses, including the American Trucking Association, urged the Committee to include commercial vehicles, so that remains a possibility as the legislative process in the Senate moves forward.
There is tremendous interest in Congress in speeding up the testing and deployment of automated vehicles because of the concerns of industry that the U.S. is falling behind other countries because of a lack of a national regulatory framework for AVs. Additionally, Congress is excited about the life-saving and revolutionary benefits AVs can bring in terms of motor vehicle safety and expanding mobility options for the people with disabilities, seniors, and other groups that may not drive or have access to a car. Therefore, legislation in some form around AVs is likely to become law. Right now, Congress is trying to strike the right balance between deploying AVs as quickly as possible while making sure they are tested and deployed in a safe manner that doesn’t endanger the safety of other persons because of the problems and unforeseen issues that arise when testing a new technology.
Alex Beckmann is an Outreach Associate at Transportation for America.