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Did Congress Stumble on a New Way to Modernize Auto Safety Rules?

In an effort to wrap their heads—and legislative tentacles—around self-driving cars, Congress may have inadvertently highlighted a promising new way to modernize outdated federal motor vehicle safety standards. The House has passed the SELF DRIVE Act and the Senate has a vote pending on its largely similar AV START Act. Both of these bills include an interesting provision that, while narrowly tailored, may serve as a blueprint for broader modernization of auto safety regulations.

Both the House’s SELF DRIVE Act and the Senate’s AV START Act would codify in statute SAE International’s (formerly the Society of Automotive and Aerospace Engineers) Recommended Practice J3016, which provides the industry consensus taxonomy and definitions for driving automation systems. This means the Department of Transportation would be required to adhere to SAE’s standard, rather than developing its own taxonomy and definitions.

This is a good thing and the federal government has long recognized the virtues of adhering to consensus industry standards when regulating industrial activities, rather than attempting to invent technical standards out of thin air. OMB Circular A-119 explains why this is the case in much more detail.

Both bills also provide a regulatory update mechanism. When SAE revises J3016, it would then transmit the change to the Secretary of Transportation. The Secretary would then be required to make a choice: adopt the updated SAE standard or reject the revised standard.

The House and the Senate differ slightly on how this mechanism would operate. The House’s bill would exempt the decision to adopt the new standard from the Administrative Procedure Act’s notice-and-comment rulemaking requirements, as well as require the Secretary to articulate a safety basis for rejecting the change. The Senate’s bill does not require the Secretary to explain on safety grounds why she rejects the updated SAE standard and does not exempt the decision to adopt the revised standard from normal APA rulemaking procedures.

There are advantages and disadvantages to each approach, but that isn’t what this post is about. To my point: if Congress recognizes that the Department of Transportation may be too slow to update its regulations on driving automation systems, it should recognize this problem exists across the entire federal auto safety regulatory regime.

Codified under 49 C.F.R. Part 571, the Department of Transportation regulates virtually every aspect of vehicle design. Many of these regulations—called federal motor vehicle safety standards (FMVSS)—are little more than codifying SAE standards. Unfortunately, the referenced SAE standards are often decades out of date.

Take FMVSS No. 108, which dictates lighting requirements. Under current regulation, it references decades-old standards that fail to reflect the latest SAE lighting standards. In recent years, automakers in Europe and Japan have begun deploying vehicles equipped with adaptive driving beam (ADB) headlamps. ADB lamps detect approaching vehicles and automatically adjust the direction of the beam down to avoid blinding the approaching drivers. The current regulation requires that vehicle headlamps be capable of manual switching between low and high beams, a distinction eliminated by automatically adjusting ADB headlamps. The newest laser ADB lamps first deployed in Europe also exceed the maximum lumen output permitted by FMVSS No. 108. Thus, superior ADB headlamps deployed in much of the rest of the industrialized world are currently illegal in the United States.

FMVSS No. 108 is but one example. There are dozens of other auto safety regulations that have the effect of outlawing newer, safer vehicle technology simply because regulators have failed to adopt the latest industry standards. The question of how precisely to amend the Vehicle Safety Act to encourage more rapid adoption of the latest industry standards in regulation is open for debate, and one I am exploring in a forthcoming paper. But there is no denying the fact that this is a problem and one that is only likely to get worse as motor vehicle technology continues its rapid evolution into the age of automated vehicles. The good news is that Congress may have unintentionally stumbled into a solution to a problem of its own making.