Public Policy Issues Driving the Next Generation of Mobility: Automated Vehicle Legislation on Capitol Hill

Written by Regina Hopper, SVP Global Public Policy, GRIDSMART

Steady work is underway on legislative and regulatory efforts to define and advance the deployment of the next generation of mobility with Automated Vehicle legislation already passed through the House of Representatives and the Senate Commerce, Science and Transportation Committee stepping in this week with the introduction of S. 1885 the “American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act” or the “AV START Act”.

The Committee is chaired by John Thune (R-SD).  Senator Gary Peters (D-MI) is ranking on the Committee. The bill is co-sponsored by Senators Debbie Stabenow (D-MI) and Roy Blunt (R-MO).

The introduction of this bill followed weeks of staff and stakeholder meetings. Under the legislation, National Highway Transportation Safety Administration (NHTSA) maintains authority over design and construction of automated vehicles. Manufacturers would be required to submit Safety Evaluation Reports (SERS) on safety, data, cyber, crashworthiness, post-crash behavior, automation functions and other categories.  The bill allows NTHSA to grant up to 50,000 exemptions for AVs in the first year, 75,000 in year two and 100,000 in a twelve – month period after the second year. After five years, a manufacturer can ask the Secretary of Transportation to go above the 100,000 limit.  Manufacturers must also develop cyber plans. A Highly Automated Vehicle Technical Safety Committee will be established to study AV systems.

Mark up of the bill will be on Wednesday, October 4th and amendments are already being offered.

One of the most debated parts of the bill will be around the preemption wording in Section 3.  Taking the approach passed by the House version, roles of the federal, state and local governments are defined with federal authority over the design, construction and performance of AVs.  States and localities continue to have authority over operations and licensing.  The language at issue is “unless the law or regulation is an unreasonable restriction on the design, construction or performance of highly automated vehicles” with debate centered around the phrase “unreasonable restriction” and the word “performance”.

Also being debated: Today, states license the operator.  With highly automated vehicles, the car becomes the operator. Auto manufacturers don’t want to deal with different state laws when it comes to the design of the car.  States don’t want to become involved in the equipment. Not addressed in the bill are issues around privacy and the workforce and large vehicles are excluded.

The House passed its version of an AV Bill HR 3388 on September 6th.  The “Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act” or the “SELF DRIVE Act”, as in the Senate bill, deals with preemption, safety assessment certifications from manufacturers, cybersecurity and privacy plan requirements, exemptions – with 25,000 in the first year, 50,000 in year two and 100,000 in years three and four, and the creation of an AV Advisory Council.

The Committee has provided a summary of the bill as follows: (Language taken directly from the Committee document)

Highlights of S. 1885, the AV START Act:

Provides Enhanced Safety Oversight – Requires manufacturers to submit safety evaluation reports to the Secretary of Transportation with information addressing important factors including safety, crashworthiness, and cybersecurity through documented testing, validation, and assessment. Such reports must be submitted prior to the testing or deployment of a self-driving vehicle.

Reinforces Federal, State, and Local Roles – Utilizing bipartisan provisions from the SELF-DRIVE Act (H.R. 3388), which passed the House of Representatives without objection, ensures the Department of Transportation’s continued responsibility for automated vehicle design, construction, and performance while maintaining state and local roles in determining traffic laws, registration, and licensing.  Directs additional research and coordination with state and local governments on traffic safety and law enforcement challenges. Creates specific requirements for manufacturers to ensure that all self-driving vehicles account for state and local traffic laws.

Reduces Barriers to Deployment – Expands the Secretary’s existing discretionary authority to implement an enhanced review and approval process for federal motor vehicle safety standards to prioritize safety for up to 100,000 vehicles per manufacturer three years after enactment. Maintains Status Quo for Trucks and Buses – Clarifies that new authorities for self-driving technologies in the AV START Act apply to vehicles weighing 10,000 pounds or less. Maintains existing Department of Transportation authority for advancing automated truck and bus technology in the future.

Brings Existing Rules up to Speed – Directs the Department of Transportation to act quickly to modernize existing federal motor vehicle safety standards, which were written before self-driving vehicles were envisioned.

Strengthens Cybersecurity – Directs the Secretary of Transportation to work with manufacturers to adopt policies related to coordination around and disclosure of potential cybersecurity vulnerabilities.  Requires manufacturers to develop and execute a comprehensive written plan for identifying and reducing cybersecurity risks to self-driving vehicles.

Improving Vehicle Safety and Data Sharing – Establishes a committee of experts to identify and develop recommended standards, including for data recording and data access and sharing. Headed by the Secretary of Transportation, the committee will serve as a forum for stakeholders to make recommendations for these and other standards governing self-driving vehicles.

Promotes Consumer Education – Advances guidelines on responsible consumer education and marketing, including on the capabilities and limitations of advanced driver assistance systems and self-driving vehicles, through the establishment of a dedicated working group.

Americans with Disabilities – Improves mobility for Americans with disabilities by preventing the denial of a license to operate a self-driving vehicle on the basis of a disability. Develops best practices regarding self-driving vehicle accessibility.

The Committee also released the following section by section analysis: (Language taken directly from the Committee document)

Section 1.  Short title; table of contents. This section would provide the short title of this bill as the “American Vision for Safer Transportation Through Advancement of Revolutionary Technologies (AV START) Act.”  This section would also provide a table of contents for the bill.

Section 2.  Definitions. This section would provide definitions for new terms relating to automated vehicles, including “automated driving system (ADS),” “highly automated vehicle (HAV),” and “dedicated highly automated vehicle (DHAV).”  A highly automated vehicle would be defined as a motor vehicle with a gross vehicle weight of 10,000 pounds or less (which excludes most heavy trucks and buses), equipped with a Level 3, 4, or 5 automated driving system.  A dedicated highly automated vehicle would be defined as a highly automated vehicle equipped with a Level 4 or 5 system that is operated at those levels for all trips (a truly driverless vehicle).

Note: The AV START Act uses the levels of automation as defined by SAE International standard J3016.  A Level 3 vehicle can drive itself in some circumstances (e.g., on highways, or in specified geographic areas), but requires that a human driver be present to take over if needed.  A Level 4 vehicle can drive itself in some circumstances, and does not need a human driver to take over (e.g., it can pull itself over safely if needed).  A Level 5 vehicle can drive itself in all circumstances, and does not need a human driver to take over.

Section 3.  Relationship to other laws. This section, using identical language to that in section 3 of the SELF DRIVE Act (H.R. 3388), which passed the House without objection, would clarify federal, state, and local roles for regulating HAVs to encourage interstate testing and development.  It would do so by prohibiting a state from enacting or enforcing a law or regulation regarding the design, construction, or performance of HAV, ADS, or component of an ADS.  This section would allow states to enforce identical standards to those promulgated by NHTSA.

This section would make clear state laws regarding traditional state roles are not preempted.  These include licensing, registration, insurance, law enforcement, or traffic management unless such a law is an unreasonable restriction on HAV or automated driving system design, construction, or performance.  This section would also make clear the bill does not affect a state or locality acting in accordance with other federal laws.  It would also make clear motor vehicle franchise laws or common law claims are not preempted.

This section would also prohibit a state from issuing licenses for DHAV in a way that discriminates against those with disabilities.  Unlike the other provisions in this section, this provision is not contained in the SELF DRIVE Act.

Section 4.  Expedited resolution of highly automated vehicles conflicts with standards. This section would direct an accelerated process for the Secretary of Transportation to remove and update references to human drivers and occupants in the federal motor vehicle safety standards.  These references could prevent DHAVs from complying with such standards and associated test procedures.  The section would direct the Volpe National Transportation Systems Center within the Department of Transportation, or other entity designated by the Secretary of Transportation, to issue a report at the direction of the Secretary that identifies each provision in the standards that references a human driver and provides an alternative reference to an automated system.  The entity would be prohibited from changing the purpose of any standard.  The section would further direct the Secretary to commence a rulemaking proceeding to incorporate the report by reference into the standards.

Section 5.  Highly automated vehicles testing. This section would level the playing field so that all manufacturers can test HAVs or ADS that do not yet comply with relevant standards under certain conditions, as traditional vehicle manufacturers are able to do under current law.

Section 6.  Highly automated vehicles exemptions. This section would expand the Secretary’s existing discretionary authority to allow an alternative pre-market review process for federal motor vehicle safety standards.  Under current law, the Secretary has the discretion to exempt manufacturers from one or more standards temporarily if the exemption is consistent with the public interest and a safety equivalence determination has been made.

This section would raise the maximum number of HAVs for which a manufacturer is eligible for an exemption from the current conventional vehicle cap of 2,500 vehicles per manufacturer sold in the United States in any 12-month period to 50,000 highly automated vehicles per manufacturer in the first year after enactment, 75,000 vehicles in the second year, and up to 100,000 vehicles thereafter.  In the fifth year of an exemption, a manufacturer would be eligible to request a higher number of vehicles.  This section would lift the current cap of two years for each exemption.  The expanded exemption authority under this section would sunset with regard to a particular standard as new standards governing that aspect of performance of an HAV go into effect.  Any exemption applications would be under existing exemption categories currently in law.

Section 7.  Inoperative controls. This section would address a barrier in current law to the introduction of dual-use vehicles that can be used in automated or manual modes by amending the existing prohibition against making vehicle controls inoperative in order to allow an HAV to have certain devices or elements of design disabled when in automated mode.

Section 8.  Levels of driving automation. This section would direct the Secretary to adopt the definitions of the levels of driving automation issued by standards-setting body SAE International and would provide a process by which the Secretary could review and determine whether to adopt any updates.

Section 9.  Safety evaluation report. This section would require each manufacturer of an HAV or ADS to submit a safety evaluation report to the Secretary.  Safety evaluation reports would be required to include descriptions of how the manufacturer is addressing nine subject areas, through documented testing, validation and assessment, relating to the development of the HAV or ADS that is the subject of the report.  These subject areas would include 1) system safety, 2) data recording, 3) cybersecurity, 4) human-machine interface, 5) crashworthiness, 6) documentation of capabilities, 7) post-crash behavior, 8) account for applicable laws, and 9) automation function.  The Secretary has the authority to sunset a subject area as new standards applicable to the same aspect are promulgated.  All safety evaluation reports would be made publicly available, with any confidential business information redacted.  The Secretary would be able to use the information in reports for enforcement purposes, but would not be able to condition the introduction into interstate commerce based on a review of the report or additional information.

Section 10.  Highly automated vehicles technical committee. This section would establish a technical committee of outside experts appointed by the Department of Transportation to generate technical recommendations for standards and rulemaking with respect to HAV, including system safety, automated steering and braking, crashworthiness for vehicles with unconventional seating positions, event data recording and data access and sharing, accessibility, and potential conflicts between national and international standards.  With guidance from the Secretary, the committee would provide recommendations on voluntary standards on a periodic basis and recommendations for rulemaking within 5 years of enactment.  The committee would be authorized to create working groups to address specific issues, and would be required to create a working group to address HAV accessibility to those with physical, sensory, or other disabilities.

Section 11.  Highly automated vehicles rulemaking. This section would establish the process by which the Secretary reviews the recommendations of the safety committee and begin rulemaking proceedings to implement those recommendations, consistent with existing authority.

Section 12.  Consumer education. This section would develop guidelines on responsible consumer education efforts to improve the public’s understanding of advanced driver assistance systems and automated vehicle technologies, their capabilities, and their limitations.

Section 13.  Traffic safety and law enforcement. This section would direct the Secretary to work with state and local governments and law enforcement agencies to research how HAVs will impact law enforcement and traffic safety.  This section would also direct the Secretary to improve crash data regarding HAVs.

Section 14.  Cybersecurity. This section would require manufacturers of HAVs and ADS to develop and execute a written plan for identifying and reducing cybersecurity risks to the motor vehicle safety of such vehicles and systems.  This section would also authorize the Secretary to work cooperatively with manufacturers to develop a policy for coordinated disclosure of cybersecurity vulnerabilities (such as bug bounty programs), and it would direct other federal agencies researching cybersecurity risks associated with HAVs to coordinate with the Secretary on their findings.

Section 15.  Savings Clause.  This section would affirm that nothing in this bill should be construed to alter any existing authority under subtitle VI of title 49, United States Code, relating to motor vehicles with a gross vehicle weight of 10,001 pounds or more.

In the next edition of the POLICYSMART blog, we will take a look at additional policy issues being hotly debated; including, new Smart Cities legislation in the Senate (which may be offered as amendment language to the Senate AV bill), long-term transportation funding and the continuing debate over sharing of the DSRC spectrum.

REMINDER: INTERSECT17

All of these issues, and many others, will be discussed and debated at INTERSECT17, “It’s Time We Had the Talk” November 13-16. You can take a look at the topics, educational sessions and networking opportunities as well as registration here. You can also follow the action on Instragram @intersectgi.

Thanks so much for taking time to read this POLICYSMART blog! If you are interested in certain topics for the future, please let us know.  Feel free to reach out to regina.hopper@gridsmart.com. You can also follow me on Instagram and Snapchat @reginadhopper and on Twitter @reginahopper.

We will soon be launching the new #POLICYSMART podcast meant to facilitate a direct, honest, hopefully thought-provoking look at the ideas, the policy, the products and the people behind the next generation of transportation and mobility as well as our quick #POLICYSNAPS which are quick audio looks at what is making the news.  As with this blog, they will be posted on our website and shared on social media. So stay tuned for both of those!

Until next time… GRIDSMART – simple, flexible, transparent.

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