Pending Federal Legislation to Regulate Autonomous Vehicles in the United States

Volvo Cars announced in a November 20, 2017 press release that it signed a non-exclusive framework agreement with Uber (in the headlines for other reasons as of this writing) to supply the technology company with tens of thousands of autonomous XC90 sport utility vehicles. This announcement builds on the alliance between Uber and Volvo Cars announced last year. While an actual, binding purchase agreement may still be in the works, what this headline suggests is that technology companies like Uber are aggressively preparing to launch fleets of autonomous vehicles onto American streets as soon as 2019.

Where, exactly, such a large scale launch could occur in the United States as of today is largely dependent on a patchwork of state laws and municipal ordinances that have been implemented throughout the United States (organized neatly by Gabriel Weiner and Bryant Walker Smith here: Automated Driving: Legislative and Regulatory Action). There is, however, legislation pending in Congress pertaining to autonomous vehicles that could preempt some state and local laws and provide a cohesive framework for the development of autonomous vehicle technology.

On September 6, 2017, the U.S. House of Representatives passed the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act (SELF DRIVE Act) H.R. 3388. Introduced by Rep. Robert Latta (R-OH) and initially co-sponsored by Rep. Janice Schakowsky (D-IL) in July 2017 (picking up 30 additional co-sponsors the day before it passed), the SELF DRIVE Act has been a bi-partisan effort that sailed through the House with relative speed, a legislative anomaly in recent history.

The U.S. Senate is currently considering a separate bill called the American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act (AV START Act) S.1885. Introduced on September 28, 2017, by Sen. John Thune (R-SD) and co-sponsored by Sen. Gary Peters (D-MI), Sen. Roy Blunt (R-MO) and Sen. Debbie Stabenow (D-MI), the AV START Act also represents a bipartisan effort.

Both bills share some similarities. Notably, neither applies to commercial vehicles. So, for example, a federal statute resulting from either bill would not apply to Tesla’s recently-announced Semi truck. Also, both bills reference SAE International’s J3016 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles. The taxonomy sets up five different levels of autonomy in vehicles from Level 0 for no autonomy to Level 5 being completely autonomous. Even though Level 5 autonomous vehicles are not on the road today, this achievement is anticipated soon and neither bill absolutely requires a human backup driver in an autonomous vehicle. Finally, both bills include identical federal preemption language allowing states and municipalities to enact and enforce laws pertaining to autonomous vehicles only so long as they are consistent with federal laws and regulations.

Some federal regulations currently in place are written in such a way that the only way to comply is by having a human driver behind the wheel of a vehicle. Since some autonomous vehicles will have no driver at all, these regulations could stand in the way of deploying such vehicles. Both bills thus require a review of the Federal Motor Vehicle Safety Standards (FMVSS) to resolve these issues. The House bill requires a review of the FMVSS to begin within 180 days of enactment, whereas the Senate bill takes it a step further by requiring a completed report on conflicting provisions within 180 days of enactment, and commencement of a U.S. Department of Transportation (USDOT) rulemaking 90 days later.

There are other provisions in the two pieces of proposed legislation where the Senate version – perhaps having the benefit of hindsight – takes a slightly different approach on the same or similar issue. For example, both bills address cybersecurity, but the Senate version is more broad. Where the House bill merely requires manufacturers to have a cybersecurity plan with a written policy and appointed officer, the Senate bill takes the same concept further by adding additional requirements to the plan, allowing for federal and public inspection of such plans and calling for a method for security researchers to confidentially share information about vulnerabilities in autonomous vehicle systems.

Rather than allowing for an unlimited number of autonomous vehicles to hit the road once the technology is available, both bills create step increases of the number of autonomous vehicles that can be sold in successive twelve-month periods by creating exemptions. Where the House bill allows for 25,000; 75,000, and; 100,000 exempted autonomous vehicles during the first three years, respectively, the Senate bill starts at 50,000 during the first year and allows for the possibility of exemptions exceeding 100,000.

And, of course, both the House and the Senate bills focus heavily on safety regulations, with the House version requiring a USDOT rulemaking on safety assessment certification, and the Senate version requiring safety evaluation reports by manufacturers. These safety provisions are interesting, but they are not unexpected. The federal government typically regulates safety of actual vehicles whereas state governments regulate how vehicles operate on roads within state lines. More interesting is how the bills address – or refrain from addressing – important privacy and ethics concerns.

There is a notable difference in how the two bills address privacy. The House version requires an autonomous vehicle manufacturer to establish a written privacy plan. In contrast, the Senate omits that requirement. In recent guidance issued after the passage of the SELF DRIVE Act and before the introduction of the AV START Act, the National Highway and Traffic Safety Administration (NHTSA) acknowledges that privacy and ethical matters are important to deliberate. (See: Footnote 1). However, pointing to its website, NHTSA takes the approach that privacy matters are under the purview of the Federal Trade Commission (FTC). (See: What is NHTSA’s approach to privacy?). As to ethics, it is NHTSA’s position that “there is no consensus around acceptable ethical decision-making given the depth of the element is not yet understood nor are there metrics to evaluate against.” (See: What is NHTSA’s approach to ethical considerations?).

There is certainly more interesting deliberation to come regarding privacy and ethics. Both bills set up advisory committees consisting of experts in various fields. The House version establishes a new autonomous vehicle Advisory Council, where the Senate establishes a new Technical Committee. While the titles of these groups are different, both will be expected to address pressing issues relating to privacy and ethics in addition to technical and safety concerns.

This blog will follow these discussions and more, so please provide your comments and check back later for further updates.