New AV START Discussion Draft Addresses Some Stakeholder Concerns

New AV START Discussion Draft Addresses Some Stakeholder Concerns

December 05, 2018  | Jeff Davis

December 5, 2018 (amended Dec. 7)

The AV START bill (S. 1885), providing the first federal framework for addressing autonomous vehicles, was approved unanimously in Senate committee 14 months ago (October 4, 2017). But the legislation stalled on the way to the Senate floor, the victim of a post hoc resistance campaign by the trial lawyer lobby and belated pushback from other interests, the most visible sign of which was in March 2018 when Senators Feinstein (D-CA), Gillibrand (D-NY), Markey (D-MA), Blumenthal (D-CT), and Udall (D-NM) published a letter in opposition to the bill. The letter indicated concern with how the bill addressed safety and security and the federal preemption of state and local safety regulations.

In an era where confirming almost every nominee above the rank of Assistant Secretary requires a full 30 hours of Senate debate time, the Majority Leader has refused to bring bills to the floor that aren’t on the short “must pass or else” list unless a time limitation on the bill can be locked in by unanimous consent in advance. That agreement has never materialized for AV START, forcing its authors, Senate Commerce Science and Transportation Committee chairman John Thune (R-SD) and Sen. Gary Peters (D-MI), to release a new draft addressing some of those concerns this week.

(ETW has painstakingly prepared a comparative print showing the text of AV START (S. 1885) as reported from committee last year and the line-by-line changes made in the latest discussion draft. That comparative print can be downloaded here.)

One of the most visible changes addresses the main complaint of the trial lawyers, who are bitterly opposed to the trend in the business world that forces customers into binding arbitration agreements that prohibit lawsuits. A new subparagraph in section 3 provides that:

…no predispute arbitration agreement between a covered entity and a natural person who is not acting as an employee, agent, affiliate, or business associate of such covered entity at the time of an incident described in clause (i) shall be valid or enforceable with respect to any claim…

…relating to death, injury, and damages from an AV-related incident, with the exception of in the cases of motor vehicles compliance with federal motor vehicle safety standards (FMVSS). This legal protection under FMVSS regulations creates an incentive for manufacturers to support timely development of safety standards applicable to automated vehicles. The amended bill addresses the development of these standards by establishing a timeline for the Secretary and the Highly Automated Vehicles Technical Subcommittee to study and report on access, education, and data and study and develop new safety standards.

Trial lawyers also being very much concerned with legal liability for accidents, the new draft clarifies those liability issues:

S. 1885 As Reported From Committee Dec. 3, 2018 Staff Discussion Draft

49 U.S.C. §30103(e) “(1) Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.

“(2) Subject to subsection (b)(3)(A), nothing in subsection (b)(3) shall exempt a person from liability at common law or under a State statute authorizing a civil remedy for damages or other monetary relief.”.

49 U.S.C. §30103(e) “(1) Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.

‘‘(2) Nothing in subsection (b)(3) may be construed to exempt a person from liability at common law.

‘‘(3) Nothing in subsection (b)(3) may be construed to exempt a person from liability under a State law unless such law directly or specifically regulates or prescribes the design, construction, or performance of a highly automated vehicle or automated driving system.”.

The revisions include a nod towards worry about federal overreach in section 3, explicitly stating the limitations of the federal preemption of state and local laws by adding new language to the bill:

S. 1885 As Reported From Committee Dec. 3, 2018 Staff Discussion Draft

49 U.S.C. §30103(b)(3) “(A) No State or political subdivision of a State may adopt, maintain, or enforce any law, rule, or standard regulating the design, construction, or performance of a highly automated vehicle or automated driving system with respect to any of the safety evaluation report subject areas described in section 30107(b).

“(B) This paragraph shall cease to have effect with respect to any particular subject matter area on the effective date of a standard applicable to the same aspect of vehicle performance as identified in section 30107(f).

“(C) Nothing in this paragraph 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.”.

49 U.S.C. §30103(b)(3) “(A) No State or political subdivision of a State may adopt, maintain, or enforce any law, rule, or standard regulating the design, construction, or performance of a highly automated vehicle or automated driving system with respect to any of the safety evaluation report subject areas described in section 30107(b).

(B) This paragraph shall cease to have effect with respect to any particular subject matter area on the effective date of a standard applicable to the same aspect of vehicle performance as identified in section 30107(f).

(C) Consistent with subparagraph (A), nothing in this paragraph may be construed to prohibit a State or political subdivision of a State from adopting, maintaining, or enforcing any law, rule, or standard 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.

49 U.S.C. §30103(b)(4) “(A) In paragraph (3)(A), the term ‘design, construction, or performance’ shall be interpreted consistent with the Secretary’s authority under section 30111 relating to motor vehicle safety standards, and does not include compliance with the traffic laws or rules of a State or a political subdivision of a State, or the laws or rules of a State or a political subdivision of a State that relate to rules of the road or the operation of motor vehicles.

“(B) Nothing in subparagraph (A) may be construed to otherwise affect or limit the authority of the Secretary under this chapter.’’.

Additional oversight of FMVSS exemptions helps mitigate concern of exemptions not being reexamined in a timely manner. The new language in section 6 stipulates annual review by the Secretary of all granted exemptions to FMVSS requirements with expiration after 5 years at the longest.

The request for further cybersecurity safeguards from dissenting legislators and a slew of 27 stakeholder groups is somewhat addressed in sections 13 and 14, and more heavily in section 24 with further recommendations to examine cybersecurity, including required studies. The changes to add cybersecurity experts to section 13’s discussion on research requirements behind HAV impacts on law enforcement also adds civil liberties experts to provision to further address concerns about equity.

Bicycle and pedestrian groups came out in opposition to the bill citing a lack of concern for safety for vulnerable road users. The advocates’ main concern centered around the lack of testing for identification of and safe driving near pedestrians and bicyclists. The new bill addresses their cry for some sort of “vision test” in section 9(b)(1)(C) requiring safety evaluation reporting on “detection, classification, and response” relating to motorcyclists, bicyclists, pedestrians, and other road users.

The new draft also includes five new provisions added as sections 22 through 26 of the revised draft. These include a a variety of public transparency provisions for technology descriptions and safety reports, a driver data privacy provision, and an unrelated provision requiring NHTSA to revise its safety standard for headlamps.

Many of the revisions to the bill are clarification and additional detail.  Explicitly writing out definitions of “dynamic driving task,” levels of automation, and FMVSS compliance create a sturdier framework for manufactures to work within and clearer safety laws and future regulations. This emphasis on refining definitions also lines up with changes in the DOT guidance document released in October 2018, Automated Vehicles 3.0: Preparing for the Future of Transportation, which requires DOT to update definitions of “driver” and “operator.”

Mixed reactions to whether or not the bill should cover commercial vehicles was clearly addressed by adding in the qualifier of “passenger” vehicles in many locations.

The changes to the bill have not been enough to win over some critics, with Senators Feinstein, Blumenthal and Markey all telling reporters this week that they still have concerns. In the other chamber, Rep. Jan Schakowsky (D-IL), the lead Democratic sponsor of the House legislation (H.R. 3388, the SELF DRIVE Act) , issued a statement saying that the new draft “falls woefully short in terms of passenger safety, data security, privacy, and regulatory accountability.  These are issues that must be addressed thoughtfully and carefully.  This bill, without time for review and comment and with no consultation with the House, is not ready for primetime.  It is our responsibility to get the best bill possible – not rush it through by attaching it to a must-pass, end-of-year spending bill.”

If Feinstein, Blumenthal and Markey continue their opposition, then AV START won’t be able to come to the Senate floor under “regular order.” As far as putting the bill directly into the year-end omnibus appropriations legislation, then if that legislation is able to get 60 Senate votes anyway, and if those three Senators weren’t going to vote for it under any circumstances, then their objections might not be dispositive. But putting legislation in the omnibus requires strong buy-in from the Speaker and the Majority Leader and assumes that the total package gets at least 218 House votes, 60 Senate votes, and signature from the President. Given all of the issues at play here, inclusion of AV legislation in that package is far from a sure thing.

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