SELF DRIVE Act to Face House Floor Vote

UPDATE: The U.S. House voted to approve the SELF DRIVE Act on September 6, 2017. 

The full House of Representatives is scheduled to consider the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act (SELF DRIVE Act, H.R. 3388) as early as tomorrow, September 6. The SELF DRIVE Act was previously approved by the House Energy and Commerce Committee by a unanimous 54-0 vote on July 27.

The bill will be considered under suspension of the rules, meaning no amendments can be offered and it will need a two-thirds majority vote to proceed. The Senate Commerce Committee is set to soon to consider what will likely be companion legislation to the SELF DRIVE Act, although it remains to be seen whether the Senate will opt for a substantially similar policy approach or chart its own course.

The SELF DRIVE Act represents the first major congressional action on vehicle automation technology. It contains several elements that have been supported by supporters of the technology, including CEI, and serves as an important signal that Congress is not asleep at the automated vehicle policy switch.

The primary purpose of the bill is to clarify the federal and state roles in the regulation of automobiles. The federal government for decades has national design standards, called federal motor vehicle safety standards (FMVSS), while the states and their local governments regulate vehicle registration, driver training and licensing, law enforcement, insurance, and other aspects related to the operation of vehicles.

Section 3 of the bill amends 49 U.S.C. § 30103(b) to include an explicit statutory preemption provision for highly automated vehicles (SAE levels 3-5):

HIGHLY AUTOMATED VEHICLES.—No State or political subdivision of a State may maintain, enforce, prescribe, or continue in effect any law or regulation regarding the design, construction, or performance of highly automated vehicles, automated driving systems, or components of automated driving systems unless such law or regulation is identical to a standard prescribed under this chapter.

Clear federal preemption is needed to prevent a patchwork of state auto safety regulations, something that some understandably are beginning to fear based on recent regulatory excesses from the California Department of Motor Vehicles.

Section 3 also amends 49 U.S.C. § 30103(e) to arguably strengthen common law liability claims filed in states. This may be moving in the wrong direction, as it fails to address the ongoing imposition of an FMVSS self-certification regulatory regime on top of a now-strengthened products liability regime. This seems to defeat the central purpose of federal auto safety regulations: to ensure a level of auto safety that allegedly cannot occur under tort law. Congress should pick one or the other. The current hybrid creates needless uncertainty for auto manufacturers, who may delay the introduction and/or raise the price of safer, self-driving automobiles.

The SELF DRIVE Act also requires the first new vehicle automation system regulations. Section 4 orders the secretary of transportation to promulgate “a final rule requiring the submission of safety assessment certifications regarding how safety is being addressed by each entity developing a highly automated vehicle or an automated driving system.”

In practice, this would likely look like the safety assessment submissions discussed in the 2016 Federal Automated Vehicles Policy guidance document. (See CEI’s comments here.) Indeed, Section 4 would mandate interim compliance with the safety assessment provisions of the 2016 Federal Automated Vehicles Policy or any successive guidance document. While not unexpected, it is a bit bizarre for Congress to mandate compliance with a nonbinding guidance document, which (supposedly) contains only voluntary recommendations. This would constitute yet another transfer of legislative power to the executive branch, which will now be able to impose national requirements on vehicle automation systems without having to go through a notice-and-comment rulemaking proceeding—at least until it finalizes the aforementioned rule within two years of enactment.

As CEI and others noted in comments on the 2016 Federal Automated Vehicles Policy, the requested 15-point safety assessment letter remains flawed and the Department of Transportation has yet to develop a template. It is expected the Department of Transportation will soon release an update to the Federal Automated Vehicles Policy, perhaps providing more clarity on the safety assessment process that may soon be mandated by Congress.

Section 4 also orders the National Highway Traffic Safety Administration (NHTSA) to modernize its FMVSS regulatory regime to enable the full integration of automated vehicles into the nation’s auto fleet, something CEI has been recommending that Congress do since 2014.

Unfortunately, Section 4 also grants NHTSA explicit authority over cybersecurity, an area in which it has little expertise or record of success, as we have seen play out in its struggle to develop prerequisite regulatory prescriptions for a secure credential management system under its stalled proposed rule on vehicle-to-vehicle communications. Section 5 also requires that manufacturers of highly automated vehicles submit a vague cybersecurity plan and it is unclear what benefit will be provided.

Congress recognizes that NHTSA’s FMVSS modernization will take time, as it must likely complete numerous multiyear rulemaking proceedings to do so. In June, the House Energy and Commerce Committee held a hearing where 14 draft bills were discussed. Two involved amending limits on exemptions from FMVSS. The PAVE Act discussion draft called for increasing the annual vehicle non-hardship exemption limit at 49 U.S.C. § 30113(d) from 2,500 to 100,000. The ROAD Act discussion draft called for increasing the maximum non-hardship exemption and renewal periods at 49 U.S.C. § 30113(e) from two to five years.

In contrast, the SELF DRIVE Act’s Section 6 creates four-year maximum non-hardship vehicle exemption and renewal periods for highly automated vehicles, but phases in the annual maximum from 25,000 vehicles in the first year, 50,000 in the second, and 100,000 in the third and fourth years. Worse, the SELF DRIVE Act would forbid any exemptions for highly automated vehicles from safety standards until one year after the safety assessment and FMVSS modernization rulemakings mentioned above are completed.

In this respect, Congress has not fully grasped the problem of FMVSS delaying introduction, as it will only allow safer automated vehicles to be widely deployed to the public until NHTSA has already promulgated automation-friendly FMVSS. This greatly reduces the potential safety and mobility benefits of a reformed exemption process. One narrow exception to these unnecessary exemption restrictions allows automated vehicles to be exempt from steering control system FMVSS if the vehicle lacks a steering control system. This would only apply to low-speed, geographically restricted vehicles or the most advanced automated highway vehicles that don’t yet exist and likely won’t for some time.

The SELF DRIVE Act certainly isn’t all it could be, but still represents an important first step—and one that is largely positive—from Congress. We hope the Senate’s forthcoming legislation is able to improve on the House’s bill.