House Energy & Commerce Unanimously Passes AV Bill
July 28, 2017
On July 27, the House Energy & Commerce Committee (E&C) unanimously approved what may become the first federal law regulating self-driving vehicles. The final vote tally was 54-0 – a margin that would be impossible for practically anything else in Congress today.
The bill was a modified version of draft automated vehicle (AV) legislation that was unanimously approved by the Digital Commerce and Consumer Protection Subcommittee (DCCP) last week.
On Tuesday, DCCP Chairman Bob Latta (R-OH) and Rep. Jan Schakowsky (D-IL) jointly introduced H.R. 3388, the DECAL Act, as a placeholder for the markup while Republicans and Democrats continued negotiating the content of the full bill.
It came down to the wire: the amendment in the nature of a substitute (ANS) containing the negotiated text was not posted until Wednesday around 10:30pm – less than 12 hours before the markup.
Latta, Schakowsky, Rep. Debbie Dingell (D-MI) and former E&C Chairman Fred Upton (R-MI) jointly introduced the ANS. It amounted to 36 pages of painstakingly crafted legislation covering topics ranging from state preemption to cybersecurity to setting standards for AVs. The placeholder language in the DECAL Act, one of the less controversial proposals, was preserved in section 8 of the ANS.
The process of drafting the bill was intensive. The subcommittee met with numerous advocacy groups and industry representatives as it went through several iterations of the legislation, which was originally refined from 16 drafts into a single bipartisan bill. All the while, Republicans and Democrats feuded over issues around preemption, exemption, and the timeline for creating standards for automated vehicle (AV) performance and design.
“The Subcommittee has had over 250 meetings this year alone, with the autos, the disability community, seniors, tech companies, trade associations, suppliers, state transportation leaders, and last but not least NHTSA,” Latta said in a written statement. “Safety should be, and will always be, our number one priority.”
Schakowsky and the Democrats wanted to hold off on a full committee markup until September so that they could continue negotiating with the GOP, but Latta stuck to his plan to keep the bill moving as quickly as possible and avoid partisan entrenchment over the August recess.
But over the last few months, Dingell worked closely with Latta to build support among DCCP Democrats, and eventually the full committee. “If we fail to act or keep this process moving, our country will fall behind – plain and simple,” she said at the markup.
While every member of the committee supported the bill, Democrats continued to express concern that the National Highway and Traffic Safety Administration (NHTSA) was not adequately prepared to regulate AVs – and that the bill could effectively tie the hands of cities and states while the federal government took a few more years to develop motor vehicle standards.
Reps. Doris Matsui (D-CA) and Yvette Clarke (D-NY) were the most fervent opponents of the language preempting states from placing “unreasonable restrictions” (see Sec. 3) on AVs. During the markup, they expressed concern that the bill did not go far enough in enabling states and localities to ensure their roadways are safe – and Clarke even wanted that section to be removed entirely.
Schakowsky acknowledged that the bill did not turn out exactly as she had hoped. “It may not be exactly the bill that Chairman Latta or I would’ve written on our own,” she said, “but it’s the result of bipartisan negotiations.”
The SELF DRIVE Act is expected to reach the floor in September, after the House returns from recess.
Meanwhile, the Senate will likely get its AV bills moving during its two extra weeks in session. Senate Commerce Chairman John Thune (R-SD) and Sen. Gary Peters (D-MI) had originally planned to release their bill this week, but the drawn-out battles over the repeal and/or replacement of the Affordable Care Act seems to have thrown a wrench in their plans.
The original plan was for the Senate Commerce Committee to review their bill at an executive session next Wednesday, August 2. This is still possible, although the session is already jam-packed with 8 bills and 11 nominees for the committee to consider. Among them: two reappointments to the Federal Communications Commission (Aji Pai and Jessica Rosenworcel) and Steven Bradbury for General Counsel of USDOT, who faced significant resistance from Democrats at his nomination hearing last month.
Below is a section-by-section analysis of the key differences between the DCCP bill passed last week and the SELF DRIVE Act, with a particular focus on the most contentious issues debated by Republicans and Democrats.
Sec. 1. Short title; table of contents.
This legislation had a new name that was far from clever or coherent: ‘‘Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act’’
But it got them the acronym they wanted, making this the SELF DRIVE Act.
Sec. 2. Purpose.
The purpose of the legislation, which was added in this version, highlights the effort to delineate federal and state roles for motor vehicle regulations and eliminate inconsistent state regulations that could slow down AV development:
“The purpose of this Act is to memorialize the Federal role in ensuring the safety of highly automated vehicles as it relates to design, construction, and performance, by encouraging the testing and deployment of such vehicles.” (emphasis added)
Sec. 3. NHTSA authority and State preemption for autonomous motor vehicles.
The items in bold were added to the rules of construction for the preemption section:
‘‘(A) IN GENERAL.—Nothing in this subsection may be construed to prohibit a State or a political subdivision of a State from maintaining, enforcing, prescribing, or continuing in effect any law or regulation regarding registration, licensing, driving education and training, insurance, law enforcement, crash investigations, safety and emissions inspections, congestion management of vehicles on the street within a State or political subdivision of a State, or traffic unless the law or regulation is an unreasonable restriction on the design, construction, or performance of highly automated vehicles, automated driving systems, or components of automated driving systems.”
What was not addressed – and what Democrats have been pushing for – is a definition of what an “unreasonable restriction” is. It remains unclear which state laws would be viewed as unreasonable restrictions with this definition, potentially opening up major policy debates to resolution by way of tort law.
The National Automobile Dealers Association (NADA) scored a big win with the inclusion of language that prevents state laws around franchises from being preempted. Multiple sources have confirmed that NADA was advocating for the inclusion of this language:
‘‘(B) MOTOR VEHICLE DEALERS.—Nothing in this subsection may be construed to prohibit a State or political subdivision of a State from maintaining, enforcing, prescribing, or continuing in effect any law or regulation regarding the sale, distribution, repair, or service of highly automated vehicles, automated driving systems, or components of automated driving systems by a dealer, manufacturer, or distributor.”
The subcommittee kept the language that allows states and their political subdivisions (e.g., counties, cities) to set higher performance requirements for AVs they purchase for their own use:
‘‘(4) HIGHER PERFORMANCE REQUIREMENT.— However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle, motor vehicle equipment, highly automated vehicle, or automated driving system obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.
And a new provision clarifies that complying with motor vehicle standards does not equal an exemption from liability at common law: “Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” It goes on to state that the section should not be construed to preempt common law claims.
Sec. 4. Updated or new motor vehicle safety standards for highly automated vehicles.
This version accelerates the creation of a safety assessment certification program by USDOT. The Secretary is instructed to issue a final rule that implements such a program within 24 months of enactment – this is down from the 30 months in the DCCP version of the bill.
In the meantime, manufacturers will still be required to submit a Safety Assessment Letter (SAL) for their AVs, as outlined in the USDOT Federal Automated Vehicles Policy (FAVP) Statement last September (or any future versions).
One of the most contentious provisions in the DCCP bill survived the negotiations between Democrats and the GOP: although AV developers will be required to submit SALs to USDOT, the Secretary is not allowed to prevent developers from testing or deploying their vehicles based on its review of safety certifications.
Safety advocates have argued that this takes the teeth out of federal oversight – potentially allowing unproven AV technology to be operated on public roads, even if they see glaring issues in the documents submitted by AV developers:
“(A) NO CONDITIONS ON DEPLOYMENT.— Nothing in this subsection may be construed to limit or affect the Secretary’s authority under any other provision of law. The Secretary may not condition deployment or testing of highly automated vehicles on review of safety assessment certifications.”
The section requiring the Secretary of Transportation to submit an AV rulemaking and safety priority plan within 1 year made it through the negotiations without any changes.
Sec. 5. Cybersecurity of automated driving systems.
This section did not change.
Sec. 6. General exemptions.
It would appear that DCCP decided to take a step back from immediately allowing the Secretary to grant up to 100,000 AV-specific federal motor vehicle safety standard (FMVSS) exemptions.
Instead, it provides for gradual increases in a manufacturer’s exempt vehicle cap from year to year. Manufacturers can produce up to 25,000 vehicles in the first year of their AV exemptions, 50,000 in their second year, and 100,000 in their third and fourth years.
‘‘(4) LIMITATION ON NUMBER OF VEHICLES EXEMPTED.—All exemptions granted to a manufacturer under subsections (b)(3)(B)(i) through (v) shall not exceed a total of (i) 25,000 vehicles manufactured within the first 12-month period, (ii) 50,000 vehicles manufactured within the second 12-month period, (iii) 100,000 vehicles manufactured within the third 12-month period, and, (iv) 100,000 vehicles manufactured within the fourth 12-month period. Any renewals under subsections (b)(3)(B)(i) through (v) shall not exceed a total of 100,000 vehicles manufactured within a 12-month period.’’;
The duration of exemptions and renewals was also decreased from five years to four.
A new portion of the bill clarifies that the AV-specific exemptions are not written to allow manufacturers to reduce occupant protections and crashworthiness. Instead, the exemptions grant manufacturers the ability to operate vehicles without steering wheels and other components that are designed around human drivers (emphasis added):
‘‘(i) LIMITATION ON CERTAIN EXEMPTIONS.—No exemption from crashworthiness standards of motor vehicle safety standards shall be granted under subsection (b)(3)(B)(v) until the Secretary issues the safety assessment certification rule pursuant to section 30129(a) and the rulemaking and safety priority plan pursuant to section 30129(b) and one year has passed from the date by which the Secretary has issued both such rule and such plan. This subsection shall not apply to exemptions from occupant protection standards if the exemption is for a vehicle that will not carry its operator or passengers. This subsection shall not apply to exemptions from crashworthiness standards if the exemption sought is for a standard addressing the steering control system and it is for a vehicle that—
(1) will not have a steering control system;
(2) provides impact protection to an occupant in the front left seat at a level at least equal to the level provided in nonexempt vehicles; and
(3) provides a safety level at least equal to the safety level of the standard for which the exemption is sought.”
A provision was removed that would have authorized the Secretary to stay an exemption when a defect is found in an exempt vehicle until the manufacturer has fixed it. This would have acknowledged that AV manufacturers will likely be able to issue over-the-air software updates to resolve issues with their automated driving systems, rather than having to undergo large-scale physical recalls:
“(j) AUTHORITY TO STAY EXEMPTION.—If a vehicle that was granted an exemption under subsection (b)(3)(B)(ii), (iv), or (v) is found to contain a defect subject to section 30118 of this chapter, the Secretary may stay the exemption for any manufacturer utilizing the exemption until a remedy is provided. Nothing in this subsection may be construed to limit or affect the authority of the Secretary under any other provision of law, including the authority of the Secretary regarding recalls.”
A small addition to the reporting requirements section said that manufacturers are required to inform the federal government of crashes involving vehicles with AV exemptions “of which it has actual knowledge.” (Ed. note: ETW will cover this in greater detail in an upcoming article.)
‘‘(j) REPORTING REQUIREMENT.—A manufacturer granted an exemption under subsection (b)(3)(B)(ii), (iv), or (v), shall provide information about all crashes of which it has actual knowledge involving such exempted vehicles, regardless of whether a claim is submitted to the manufacturer, in accordance with part 579 of title 49, Code of Federal Regulations.”
The ANS maintains most of the original language around establishing a publicly available and searchable exempt vehicle database. One phrase was added to prevent personally identifiable information from being included in this database:
‘‘(2) VEHICLE IDENTIFICATION NUMBER.—The database established under paragraph (1) shall be searchable by Vehicle Identification Number and shall include no information identifying the vehicle owner.’’.
Sec. 7. Motor vehicle testing or evaluation.
No significant changes.
Sec. 8. Information on highly automated driving systems made available to prospective buyers.
The DCCP bill instructed the Secretary to complete research within 3 years on the best way to inform consumers of the capabilities and limitations of AVs with automation level 2 or higher. This was tweaked in the ANS to include vehicles that perform partial driving automation.
“(a) RESEARCH.— Not later than 3 years after the date of enactment of this Act, the Secretary of Transportation shall complete research to determine the most effective method and terminology for informing consumers for each highly automated vehicle or a vehicle that performs partial driving automation about the capabilities and limitations of that vehicle.”
Sec. 9. Highly Automated Vehicle Advisory Council.
Addressing concerns similar to those voiced by T4A, NRDC, NLC, and NACTO in a joint press release earlier this week, state and local authorities are now included in the list of people that should be included in the Advisory Council:
“(b) MEMBERSHIP.—Members of the Council shall include a diverse group representative of business, academia and independent researchers, State and local authorities, safety and consumer advocates, engineers, labor organizations, environmental experts, a representative of the National Highway Traffic Safety Administration, and other members determined to be appropriate by the Secretary. Any subcommittee of the Council shall be composed of not less than 15 and not more than 30 members appointed by the Secretary.”
The mission of the disability subcommittee was modified:
“(1) advancing mobility access for the disabled community with respect to the deployment of automated driving systems to identify impediments to their use and ensure an awareness of the needs of the disabled community as these vehicles are being designed for distribution in commerce;”
The environmental subcommittee also got a slight overhaul. Its scope was expanded beyond “the impact of the development and deployment of highly automated vehicles on the environment” to also include studying alternative fuel infrastructure:
“(6) the environmental impacts of the deployment of highly automated vehicles, and the development and deployment of alternative fuel infrastructure alongside the development and deployment of highly automated vehicles;”
Rural communities also got a win with their very own subcommittee, which was originally proposed in an amendment by Rep. David McKinley (R-WV) in last week’s subcommittee markup:
“(9) the testing and deployment of highly automated vehicles and automated driving systems in areas that are rural, remote, mountainous, insular, or unmapped to evaluate operational limitations caused by natural geographical or man-made features, or adverse weather conditions, and to enhance the safety and reliability of highly automated vehicles and automated driving systems used in such areas with such features or conditions;”
And McKinley (of ETW McKinley Corner fame) got his other wish: a new subcommittee will research third-party verification and validation procedures for AVs.
Sec. 10. Rear seat occupant alert system.
DCCP ranking member Rep. Jan Schakowsky’s pet issue – preventing child deaths due to being left in hot cars – also got a boost.
The deadline for the Secretary to issue a final rule is now two years, down from three in the previous version. Once the rule is in place, new passenger vehicles sold in the U.S. must be equipped with alert systems that remind drivers to check their back seats to make sure they are not leaving a child behind after they turn off the car.
Sec. 11. Headlamps.
No significant changes to this section.
Sec. 12. Privacy plan required for highly automated vehicles.
Congressman Ben Ray Lujan’s (D-NM) consumer privacy amendment that he proposed in the last hearing was also added into the ANS. This would require manufacturers of AVs to develop written privacy plans that:
- outlines how information their AV collects is stored, used and shared;
- explains how the manager provides consumers with choices regarding how their information is collected, shared, used, and stored;
- describes the manufacturer’s procedure for scrubbing personally identifiable information (PII) out of the data it collects to protect consumer privacy; and
- how the manufacturers’ privacy plan extends to other entities it shares information with.
This section also instructs the Federal Trade Commission (FTC) to submit a report to Congress that examines the issues around privacy issues with AVs and methods for avoiding consumer data being compromised. (FTC and NHTSA held a workshop earlier this summer about these issues – you can access a summary and video of it here.)
Sec. 13. Definitions.
No significant changes to this section.