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First drafts of autonomous vehicle legislation air in house subcommittee

Monday, August 21, 2017 - 07:00
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Republicans in the House started the ball rolling on autonomous vehicle (AV) legislation by publishing 14 separate staff drafts of bills that cover such things as federal pre-emption of state law and increasing the number of AVs that a company can test.

Democrats on the House Energy & Commerce Committee had no input into those 14 drafts. Committee Chairman Greg Walden (R-OR), who quipped that the only auto sector opposed to AVs is auto body shops who would presumably lose business because of fewer collisions, says the 14 drafts "are just the beginning of the process," presumably meaning Democrats will have their say as legislation is drafted. Bi-partisan support for any package of bills, or one omnibus bill, would enhance the chance of passage, since Democrats essentially hold the cards in the Senate because of their ability to filibuster legislation.

At hearings in the House Digital Commerce and Consumer Protection subcommittee on June 27, there were obvious differences between Democrats and Republicans about what any legislation should do, but also between automobile industry and consumer representatives. The hearings were useful because the input from interested parties on both sides exposed some of the thornier sub-issues that will have to be dealt with in the form of refinements to the drafts.

Rep. Jan Schakowsky (D-IL), top Democrat on the subcommittee, noted that none of the bills provided the National Highway Traffic Safety Administration (NHTSA) authority to regulate AVs, meaning requiring the NHTSA to develop a Federal Motor Vehicle Safety Standards (FMVSS) for AVs. The 14 drafts generally skirt that issue by requiring the agency to make changes to some existing regulations. The industry wants changes to current FMVSS that require steering wheels, brake pedals, lighting and other things.

There did not seem to be industry support for giving NHTSA the authority to write a new AV FMVSS. Instead, John Bozzella, president and CEO, Global Automakers, asked that the federal government identify any outdated standards that may unnecessarily limit innovation and work collaboratively with industry and other stakeholders to update those standards to accommodate automated systems.

When asked whether he would support a federal cybersecurity standard for AVs, Mitch Bainwol, president and CEO, Alliance of Automobile Manufacturers, said his association opposed such a standard though he conceded that cybersecurity "was absolutely a concern." The NHTSA has already proposed a rule on vehicle-to-vehicle communications that does not advance standards for vehicle data protection. On June 29, the NHTSA and the Federal Trade Commission held a joint workshop on the subject.

Another flash point is the NHTSA policy that restricts manufacturers from testing more than 2,500 vehicles a year which are granted an exemption from Federal Motor Vehicle Safety Standards (FMVSS). One of the 14 draft bills increase the exemption ceiling to 100,000 vehicles annually and extends the exemption from two to five years.

David Strickland, a former NHTSA administrator now representing the Self-Driving Coalition for Safer Streets, explained, "The numerical and temporal limitations on exemptions under current law present a concrete obstacle to achieve the goal of rapid, safe and robust deployment necessary to attain the safety and mobility benefits we believe fully self-driving vehicles promise." Levels 4 and 5 refer to completely autonomous vehicles in a ranking developed by the Society of Automotive Engineers. Levels 1-3 require some driver intervention.

A second prong of the testing question is whether states should be able to limit it. One draft bill gives NHTSA broad pre-emption authority. California, for example, has enacted a law requiring its department of motor vehicles to regulate driverless cars, and its DMV has proposed new and more detailed rules for the testing of cars.

But Strickland acknowledged there might have to be some limits on testing, making that comment in response to a statement from Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, The George Washington University Law School. Morrison raised the question about whether a town, for example, should be able to prohibit the testing of AVs near local schools. He also questioned whether any of the drafts made it clear that any testing should not bleed over to deployment.

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