In a unanimous voice vote on October 4, the Senate Committee on Commerce, Science, and Transportation voted the “American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act” (S. 1885) out of committee. A Senate floor vote has not yet been scheduled, but indications are that the Senate will try to act on the legislation before the end of the year.
The Senate’s AV START Act is a response to a growing consensus that regulatory changes at the federal level are necessary to promote the development of automated vehicle technology, or at least to avoid unnecessary constraints on the testing and deployment of Highly Automated Vehicles (HAVs) that would result from the application of existing regulatory standards to the new technologies. A major concern is that constraints on the development of HAVs in the United States due to regulatory inertia will send innovation offshore, along with the economic benefits and safety improvements that the emerging new technology can offer.
Expanded Exemptions and Testing
The Senate’s AV START Act follows similar legislation that was passed by the House in September: the SELF DRIVE Act (H.R. 3388). The two legislative proposals have comparable objectives and structures. Both proposals are intended to preserve the existing regulatory approach to vehicle safety while making modest changes to accommodate the new technologies. The basic mechanism under both proposals for promoting HAVs in the short term is to allow the federal agency primarily responsible for vehicle safety, the National Highway Traffic Safety Administration (NHTSA), to issue, over the next few years, an increasing number of “exemptions” from existing federal motor vehicle safety standards. The AV START Act would allow exemptions for up to 15,000 self-driving cars in the first year of the law, 40,000 by the second year of the law, and 80,000 per year thereafter. Both Senate and House bills would facilitate testing of HAVs by allowing testing to be conducted by automakers and developers of automated driving systems. Preparation for Longer Term Rule Changes
Both legislative proposals also recognize that longer term regulatory changes are needed, and that more information will be needed to adopt appropriate longer-term rules. The AV START Act instructs the Director of the US Department of Transportation’s Volpe Center to study areas where existing safety standards may conflict with HAVs technologies and to propose changes to be addressed in a subsequent rulemaking. The AV START Act also creates two advisory committees – the HAVs Technical Committee and the HAVs Data Access Advisory Committee. These committees will study, and subsequently make recommendations on performance standards and data access and sharing. The Act further creates a Consumer Education Working Group to identify strategies to educate consumers on automated driving systems.
An important and high profile issue addressed by both legislative proposals is the allocation of regulatory responsibility between federal and state governments. Here, again, the existing regulatory structure is preserved – the federal government is responsible for vehicle design and the states are responsible for the driver and vehicle licensing. But the distinction between vehicle and driver can be blurred with HAVs. To avoid a patchwork of state regulation of HAVs, both legislative proposals would expressly preempt state legislative and regulatory activity in certain areas related to HAVs development and deployment. Under the Senate’s AV START Act, state legislation and regulation are broadly preempted as they relate to HAVs in the areas of system safety, data recording, cyber security, human-machine interface, crashworthiness, the capabilities of automated vehicles or systems, post-crash behavior, the programming of vehicles to meet existing traffic laws, and automation function. Like the SELF DRIVE Act, the AV START Act also preserves the existing rule that compliance with a federal safety standard does not exempt a person from common law liability under state law.
Both the House and Senate bills acknowledge that HAVs will generate substantial data about car users and thus the bills address concerns about preserving privacy. The AV START Act goes further than the House bill in dealing with privacy concerns. As noted previously, the AV START Act would establish a HAVs Data Access Advisory Committee to produce a report to Congress with policy recommendations regarding ownership and control of data generated or stored by HAVs. Thus, further Congressional action in this area is a distinct possibility. In addition, NHTSA is instructed to create a public database containing a description of the information that will be collected about individuals during operation of motor vehicles and an explanation of how the data will be used, disclosed, and otherwise handled, including the privacy policies of manufacturers. The Act also requires a Safety Evaluation Report that would include information regarding data recording.
The AV START Act also goes further than the House bill in requiring HAVs and automated systems developers to address cybersecurity concerns. The House bill includes a general requirement that developers create a cybersecurity plan, but the required terms of such a plan are left quite open-ended. The Senate’s AV START Act provides significantly more detail on what is required in a written plan, including the process for identifying safety-critical control systems, response to and recovery from cyber incidents, information sharing and support of industry standard setting, use of segmentation and isolation techniques in the design of vehicles and systems, and employee training. In addition, NHTSA is encouraged to work with developers to adopt policies and practices involving the identification of cyber vulnerabilities by private researchers.
Both the House and Senate bills would exclude large commercial vehicles. However, there is substantial growth in this segment of the HAVs market, so the pressure for Congress to take some modernizing action regarding automated trucks will not cease. NHTSA will also need to address this issue, even without legislative guidance.
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The AV START Act reflects a bipartisan agreement by Senate Commerce Committee chairman John Thune (R-SD) and Senator Gary Peters (D-MI). During the markup, the committee consolidated 26 amendments into a single substitute amendment because the members of the committee had reached a consensus in advance of the markup. The existence of bipartisan support is encouraging. However, several auto safety advocates remain concerned about the large number of exemptions allowed under the proposed legislation and a perception that the level of federal oversight is not strong enough to address consumer safety concerns. Further, there continue to be a number of potentially contentious issues, such as the scope of preemption and the coverage of commercial trucking, which could make for a bumpy ride moving forward.