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Eno Transportation Weekly

Republicans and Democrats Diverging on AV Legislation

June 29, 2017

Self-driving cars seemed to be the one thing that everyone on the Hill could get behind. Politicians on both sides of the aisle praised the new technology for its potential to improve safety, reduce traffic, improve mobility, and deliver a host of other benefits.

But when it comes to actually legislating, nothing is truly bipartisan.

In the last few months, the House and Senate have been crafting legislation to accelerate the development of automated vehicles (AVs) by reducing regulatory barriers at the federal and state levels.

An announcement in February heralded a bipartisan effort between Senate Commerce Chairman John Thune (R-SD) and Sen. Gary Peters (D-MI), but the House Energy & Commerce Committee (E&C) remained rather quiet. Aside from rumors that E&C was working on a package of bills, little was published about the contents until earlier this month.

Then, on June 27, the Digital Commerce and Consumer Protection (DCCP) Subcommittee called on six witnesses to provide feedback on a package of 14 draft bills:

  • Mitch Bainwol, President and CEO, Alliance of Automobile Manufacturers (testimony)
  • John Bozzella, President and CEO, Global Automakers, (testimony) 
  • Tim Day, Senior Vice President, Chamber Technology Engagement Center, U.S. Chamber of Commerce (testimony)
  • Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, The George Washington University Law School (testimony)
  • David Strickland, Counsel, Self-Driving Coalition for Safer Streets and Partner, Venable LLP (testimony)
  • Will Wallace, Policy Analyst, Consumer Union (testimony)

Chairman Bob Latta (R-OH) presented the drafting process as inclusive, bipartisan, and still ongoing.

“I have always had an open door policy and I know we cannot get this right without real-world stakeholder input,” Latta said in his opening statement. “We will move forward under regular order, with multiple opportunities to improve upon the staff drafts. We will meet with anyone, and we are participating in bipartisan meetings.”

Latta positioned the hearing as a starting point for discussions around the bill, but Democrats railed against the legislation and its drafting process from the beginning.

“Although the minority was not involved in the development of these 14 bills, I would like to hold you, Mr. Chairman, to your commitment to work to make this a bipartisan effort,” said Rep. Frank Pallone (D-NJ), the full committee’s ranking member. The top democrat on the subcommittee, Rep. Jan Schakowsky (D-IL), echoed this sentiment.

“The bills before us today represent policy through exemption and preemption [rather than direct rulemaking],” said Rep. Anna Eshoo (D-CA).

But one Democrat stood out. Rep. Debbie Dingell (D-MI) was bullish on the prospects of passing a bipartisan bill and urged Democrats to work with the majority. She said she wanted to help build “bipartisan consensus on what I hope will be a nonpartisan issue… an American issue.”

Preemption

“If states created 50 mini-NHTSAs [to regulate AVs]… it would be the undoing of our auto industry.” -David Strickland

Continuing 241 years of a proud American tradition, the fiercest arguments over the draft bills revolved around states’ rights and federal overreach.

The proposed LEAD’R Act would entirely preempt states from enacting motor vehicle standards around highly automated vehicles (HAVs), defined by the Society of Automotive Engineers as AV levels 3-5.

Classification System for Vehicle Levels of Automation

Currently, federal law prevents states from passing motor vehicle standards that conflict with existing Federal Motor Vehicle Safety Standards (FMVSS). This was written with the understanding that vehicles will inevitably – and frequently – cross state lines, and that state-specific motor vehicle standards would significantly impede interstate commerce.

While LEAD’R preempts states from enacting any policies that restrict the operation of private HAVs in their state, it concedes that states can establish standards around vehicles that the state or its political subdivisions purchase.

However, Democrats expressed concern that the current lack of federal standards – coupled with NHTSA’s expressed intent to wait until the technology matures – would leave states powerless to ensure that the AVs being operated in their borders are safe.

Democrats called on Professor Alan Morrison, a professor at George Washington University Law School. In his opening statement, Morrison indicated that he “knew very little about these issues” until six months ago, when he was asked to organize and moderate a conference on the legal landscape around AVs.

Perplexingly, he also admitted to having limited knowledge of the issues at hand: “I am not an engineer or a safety expert, nor do I have any detailed knowledge of the specifics of the relevant Federal Motor Vehicle Safety Standards (FMVSS) that NHTSA has issued.”

Nevertheless, Morrison was the most aggressive witness on the panel, frequently cutting into both questions from Members and answers from witnesses.

But even if NHTSA could be considered an amateur in regulating advanced driving technologies, states themselves would be absolutely unaware of them. The traditional role of states has always been to oversee the licensing of drivers, vehicle registration, licensing, and road maintenance – not the actual design or performance of vehicles.

Already, states are signaling that they face significant staffing and funding challenges in their efforts to regulate AVs. California, for example, has long been the focal point for AV development – but has been rushing to keep up with the number of companies testing AVs in its state (as of June 27, 37 are now testing). Its initial laws required manufacturers to submit a payment of $150 to accompany applications for one year permits and renewals, but recently-proposed regulations would increase the fee to $3,600 “to allow the department to recover all of its reasonably incurred costs.”

But, for some Democrats – and especially Californian Democrats – this was not an effective argument.

“I just want to make sure that as we work on a policy framework that allows for the deployment of AVs, we need to make sure that states retain their traditional ability to keep their roadways and residents safe,” said Matsui. She asked the panel whether they agreed that states should have the ability to enforce safety through

“What about localities? Should any locality have the ability to say… [AVs] cannot be permitted within the streets on our towns, or near schools?” asked Morrison. “I would call that a traffic law.”

Strickland rebutted, “I think that the LEAD’R Act is taking the right approach… frankly, industry looks for regulatory certainty.”

Nevertheless, a new trend is emerging in state AV laws. Many states, such as Colorado and Texas, are no longer attempting to regulate the technology itself, but instead rely upon manufacturers to ensure the vehicles are safe before putting them on the road. States are recognizing that their resources are not only limited, but that their staff is not equipped or trained to analyze complex computer systems and advanced sensor technologies.

Exemption

Currently NHTSA can issue exemptions for testing up to 2,500 vehicles that do not comply with FMVSS, but are at the same or greater level of safety than compliant vehicles. Since AV developers are planning to develop vehicles that do not need components traditionally designed with human drivers in mind, a number of the bills propose expanding NHTSA’s exemption authority – including raising the cap to 100,000.

The reason this is important to manufacturers is that it takes billions – if not trillions – of miles to determine the safety of AV software. Most groups are using a threefold approach of public road testing, computer simulations, and test sites to evaluate and improve their AVs in a variety of situations.

This generated concern among Democrats and their witnesses, Wallace and Morrison, who suggested that this would allow vehicles on public roads without sufficient safeguards for consumers.

Rep. Anna Eshoo (D-CA) argued that the bills fell short of establishing standards that would ensure AVs on the road were safe. “The bills before us today represent policy through exemption and preemption [rather than setting safety standards],” she said.

With automakers and tech firms planning aggressive expansions of their testing operations – including Uber, Lyft, and Waymo’s intentions to operate AV fleets – Strickland argued that it is absolutely essential for the exemption cap to be raised.

“The bottom line is that NHTSA lives on data… having the ability to test 2,500 vehicles over 2 years is a horrible limitation,” said Strickland, referencing his prior experience as a NHTSA administrator.

Strickland recommended tweaking the language of the ROAD, EXEMPT, and MORE Acts to ensure that exempted vehicles are subject to the existing test to ensure that they are as safe or safer than compliant vehicles – as required under 49 U.S.C. §30113(b)(3)(B)(ii).

The McKinley Corner

No hearing on AVs is complete without the gentleman from West Virginia, Rep. David McKinley (R-WV).

McKinley – who, lest you forget, is one of only two engineers in Congress and does not believe in the potential of AVs “one iota” – posed an important question that has been frequently asked by consumer safety groups, but rarely answered: if automakers are so concerned about safety, why have they resisted implementing life-saving technologies that are available now?

Bainwol responded that the primary obstacle to incorporating alcohol detection devices and automatic emergency braking (AEB) today is cost – and that AVs provide an opportunity to capitalize on market forces to advance safety technology.

But what might have been a productive conversation quickly devolved into suspicion. McKinley argued that the hype over AVs was likely more of a money grab by automakers than an effort to improve affordability of transportation – which, in effect, could price a lot of consumers out of car ownership.

He asked the panel whether they planned to ask the federal government for subsidies to help consumers buy their prohibitively expensive automobiles.

The panel was dumbfounded.

“I… haven’t seen any indication of that,” responded Bainwol.

Next Steps

In a discussion with reporters afterwards, Latta and Dingell discussed next steps for advancing the legislation.

Following a series of questions about Democratic opposition to the draft bills, Dingell remained bullish on the prospect of eventually garnering Democratic support. She pushed back against questions about Democrats being left out of the process, suggesting that the draft bills should instead be called “working text.”

“You all are approaching this like they’re not going to come on board. They’re asking questions, raising their issues, but every person who spoke today talked about wanting to work together and getting this figured out,” said Dingell.

A reporter asked whether the subcommittee was considering legislation that would serve as a middle point between exemptions and establishing FMVSS – perhaps something like a self-certification or AV classification process.

Dingell said “we’re talking about it, trying to figure it out.”

(Asst. Ed. Note: In a recent report, Beyond Speculation, the Eno Center for Transportation recommended establishing an AV certification system based on SAE levels of automation that falls along these lines.)

Certification Levels for Automated Driving Systems (ADS)

 

“Again, what we have to still look at is that this technology is still emerging. We don’t want to pick winners and losers,” said Latta.

“What we’d really like to do is [have a markup] by, say, the end of July,” Latta said. “And again, we’ve got to keep moving because this technology is moving with it – or away from us, you might say. So we’d really like to see this moving forward in the next month.”