October 4, 2017 – 5:00 p.m.

On Wednesday, October 4, the Senate Commerce, Science and Transportation Committee voted to advance S. 1885, the AV START Act. The bill was drafted in a bipartisan process led by John Thune (R-SD) and Senator Gary Peters (D-MI), who have been working in earnest with committee members and stakeholders throughout this year.

Thune, Peters, and Sens. Roy Blunt (R-MO) and Debbie Stabenow (D-MI) introduced the bill last Friday, September 29. Its passage follows a lengthy and at times contentious drafting process in which the two parties butted heads over everything from preemption of state and local laws to cyber security to whether autonomous trucks should be included.

But, despite some ongoing concerns from both parties, the highly anticipated markup was rather anticlimactic – AV START passed with bipartisan support and glowing reviews from both sides of the aisle.

“Sen. Peters and the members of the Commerce Committee deserve credit for working together to move this bill forward toward Senate floor consideration and collaboration with our colleagues in the House of Representatives,” said Thune in a joint press release with Peters following the hearing.

“I appreciate the hard work of Chairman Thune and Ranking Member Nelson to craft this important legislation that will help advance these lifesaving and life-changing self-driving technologies and ensure that the United States remains at the forefront of vehicle innovation,” Peters said.

During the markup, the committee agreed by voice vote on an en bloc package of 26 amendments from both parties, which are summarized below.

As ETW reported yesterday, over 64 amendments to the bill were originally filed – most of which were either withdrawn or rolled into other amendments.

After the bill and package of amendments were approved by voice vote, Sen. Jim Inhofe (R-OK) offered his amendment to include automated vehicles weighing over 10,000 pounds (e.g., trucks and buses) in the bill.

“Treating cars and trucks differently… will hinder efforts to adopt safe technology,” he said.

Democrats and labor unions vehemently opposed the inclusion of trucks in the bill. Thune made a concerted effort to build support among committee members and stakeholders throughout the process, even going so far as to hold a hearing on the merits of including automated trucks in the bill last month – but to no avail.

But before the amendment was brought to a vote, Inhofe acknowledged that the amendment would not pass and withdrew it.

“If there’s one thing I know to do, it’s how to count votes,” Inhofe quipped.

Speaking after Inhofe, Sen. Todd Young (R-IN) bemoaned the exclusion of trucks with an apt transportation metaphor: “By not including large trucks, I think we’re really missing the boat here.”

Young acknowledged concerns about the displacement of human workers, but said the opposition to automated trucks was driven by “misguided anxieties.” He argued that the incorporation of advanced driving technologies in trucks “could elevate the status of transportation jobs.”

Sen. Richard Blumenthal (D-CT) shared his own fears about AVs before making a futile attempt to advance one of his amendments (Blumenthal #3). He pointed to a Motherboard article from this February, titled Why Self-Driving Cars Could Be a Dream Come True for Car Thieves, as an example of the dangers of automated vehicles.

Blumenthal’s amendment would have required highly automated vehicles (HAVs) at SAE Levels 3-5 to have a human behind the wheel and a manual override control in each HAV at all times.

Thune and Nelson, who both railed against this proposal, did not miss the irony of requiring human drivers in “driverless cars.”

Thune retorted that the headlines in the newspapers the next day would ridicule Congress for advancing a bill that defeated its own purpose.

Nelson was more forceful. Citing his experience as a pilot, Nelson said that “having an override… that’s one thing. But this is not autopilot. This is autonomous… a much further step where the entire car is sensitized to what’s going on around it.”

Blumenthal ultimately withdrew the amendment, ceding that it could – and perhaps should – be modified.

The AV START Act will next move to the Senate floor. But even if it passes the Senate, there is still a long road ahead.

In early September the House passed its own AV bill, the SELF DRIVE Act (HR 3388). While it covers many of the same issues as AV START, there are significant conflicts around preemption of state laws, exemptions to Federal Motor Vehicle Safety Standards (FMVSS), and other topics that would need to be resolved.

To start, the SELF DRIVE covers all vehicles with automated driving systems from SAE Level 2-5 driving automation, while AV START is focused exclusively on highly automated vehicles (HAVs) at levels 3-5.

The House’s inclusion of Level 2 vehicles would impact a number of vehicles on the market today with features that enable partial driving automation, including Tesla models equipped with its signature Autopilot system.

But the most contentious battle will be around federal preemption of state and local laws around HAVs. As introduced, AV START initially used the same language as the SELF DRIVE Act to preempt states and localities from enacting policies that place an “unreasonable restriction” on the design, construction, and performance of HAVs.

However, the committee adopted an amendment that struck this language and established a different method of preemption, which is tied to the subject areas of reports that manufacturers would be required to submit to NHTSA, called the safety evaluation report (SER).

AV START, as introduced, can be accessed here.

Below are links for the 26 adopted amendments and ETW’s analysis of each. ETW has compiled all of the amendments into a single PDF, which can be accessed here. Amendments that are particularly notable have double asterisks (**) before and after.

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Adopted Amendments to AV START During October 4 Markup

Blumenthal 1 (modified): Requires that the Secretary issue a final rule within 2 years requiring rear-occupant alert systems that would warn parents if they leave their children behind in the backseat. This is similar to Rep. Jan Schakowsky’s (D-IL) HOT CARS language that was included in the SELF DRIVE Act.

**Blumenthal 4 (modified): Limits FMVSS exemptions for HAVs to: 15,000 vehicles per manufacturer in the first year; 40,000 in the second year; 80,000 in the third year. After the exemption has been in place for 4 years, the manufacturer may petition the Secretary for an exemption for more than 80,000 vehicles. When a manufacturer applies for a renewal of their exemption, the Secretary is required to first evaluate the safety equivalence of vehicles under the previous exemption compared to compliant vehicles.**

Blumenthal 6: Modifies the sunset clause for manufacturers’ eligibility for exemption to be either (a) when a standard related to that exemption is enacted or (b) “the earlier of the date that is 10 years after the date of enactment of this Act.”

Blumenthal 9: Consumer education working group would be required to develop voluntary marketing strategies for manufacturers to inform consumers about the comparative safety of HAVs versus non-HAVs in terms of crashes, fatalities, and other injuries (if known).

Blumenthal 10 (modified): In the Safety Evaluation Report (SER), manufacturers would be required to provide aggregate results comparing the safety level of their HAV with a vehicle that is not highly automated and that is driven by a human driver. (Note: This is a slight change from the amendment as it was originally filed – the previous version would have created a new section in the SER for comparing HAVs with non-HAVs.)

Blumenthal 11: The Secretary must make SERs publicly available within 60 days, rather than “as soon as practicable.”

**Blumenthal 19 (modified): Narrows Section 7 to specify the types of controls that can be made inoperable while the automated driving system is engaged. The bill as introduced used broad language – this is now tightened to “steering wheel, brake or accelerator pedals, a gear shift, or other feature or element of design related to the performance of the dynamic driving task by a human operator.”**

Booker 3 (modified): When the Secretary reviews an SER, they will be required to verify the manufacturer’s SAE level designation for the vehicle’s level of automation. The process by which the Secretary (or the manufacturer, for that matter) will do so is not clearly defined. This could be a major point of contention – and potentially confusion – as the bill moves forward.

Duckworth 4 (modified): Creates a new section of the bill requiring the Secretary of Transportation to begin a study within 60 days of enactment that will cover potential impacts of AVs on everything but the kitchen sink: infrastructure, environment, fuel economy, public transit use, and so on. The Secretary must submit this report to Congress within 18 months of enactment.

Duckworth 5 (modified): Instructs consumer education working group to “identify recommended education programs and responsible marketing strategies and programs.” (Added language is underlined)

Duckworth 6 (modified): Expands the membership of the consumer education working group to include safety organizations and organizations with experience in drivers’ education.

Duckworth 8 (modified): Expands the scope of the HAV Technical Committee to include “any other issue the Secretary considers appropriate, including safeguards against misuse.” (Added language is underlined)

Gardner 1:  To include in the safety evaluation report matters relating to avoidance of risk caused by a malfunction of a component of the automated driving system.

Gardner 2: To include employee training among the requirements to be included in manufacturers’ cybersecurity plans.

Hassan 4 (modified): Inserts language in the cybersecurity issue area of the SER to have manufacturers examine elements of the supply chain (e.g., motor vehicle equipment and its manufacturers) that could be vulnerable to cybersecurity incidents. Also adds a section to the manufacturer cybersecurity plan (see Sec. 14) to require manufacturers to describe how they will evaluate elements of the supply chain to identify and address cybersecurity vulnerabilities.

Inhofe 2 (modified): Instructs the Secretary to establish an HAV Data Access Advisory Committee within 180 days of passage. The Committee will provide Congress with recommendations on cybersecurity issues relating to highly automated vehicles. Prohibits federal agencies from enacting regulations pertaining to ownership of, control of, or access to, information or data stored by an HAV until the committee submits its report to Congress (within 2 years). The committee will be comprised of the USDOT Secretary (or designee) and the FTC Chairman (or designee), as well as one representative each for 17 different types of public and private entities. The committee will meet at least 4 times a year.

Also mandates a GAO study on technologies that are currently available for removing personal data from vehicles before they are sold to a new owner, leased, or rented. The report must be submitted to Congress within 1 year that has recommendations for legislative action to facilitate consistent removal of personal data.

Klobuchar 1 (modified): Adds a new section on HAV interaction with roadway and infrastructure assets (pavement markings, signage, and traffic signals) to list of topics that would be studied by HAV Technical Committee.

Klobuchar 2 (modified): Requires manufacturers’ SERs to describe how they will inform vehicle occupants about cybersecurity vulnerabilities.

Markey 1 (modified): Adds a new section to the bill on consumer privacy protections. Requires the establishment of a motor vehicle privacy database within one year of enactment. This database will describe the personally identifiable information (PII) collected about individuals during the operation of motor vehicles (note: not just HAVs). It will also contain each manufacturer’s privacy policy, as well as details about how PII will be handled, stored, protected, and/or destroyed.

Markey 2 (modified): In section 12, requires a new rulemaking to determine what clear and concise information on an AVs’ capabilities and limitations must be given to consumers at the point of sale and in the owner’s manual. The Secretary must promulgate a rule within 3 years.

** Nelson 1 (modified): This is a notable shift – the amendment erases most of the preemption language in Section 3 and replaces it with entirely new language.

• States and cities are preempted from adopting laws, regulations, and standards that regulate the design, construction, or performance of HAVs with respect to the subject areas of the SER.
• Once NHTSA establishes a standard that addresses a particular subject matter area, state and local laws will no longer be preempted.
• Laws and regulations established by states and their political subdivision on the sale, distribution, repair, or service of HAVs are not preempted.
• On liability: simply complying with FMVSS does not exempt a person from liability at common law.
• Preserves the language that would prevent states from issuing motor vehicle operator licenses for dedicated HAVs (which are designed to be exclusively driven by the autonomous system) that would discriminate on a basis of disability.
• Adds a provision to the SER section indicating that SERs are open to discovery, subpoena, court orders, and other judicial processes under federal and state law.**

Schatz 2: To require manufacturers of highly automated vehicles or automated driving systems to publish summaries of their plans to identify and reduce cybersecurity risks to the motor vehicle safety of such vehicles and systems.

Schatz 3 (modified): Expands the consumer education working group’s scope to require the working group to consider topics pertaining to consumer data collection, privacy, and data ownership.

Schatz 4 (modified): Requires that the Highly Automated Vehicles Technical Committee is comprised of at least one representative from each of the groups listed in Sec. 10(b)(1)(A)(ii) – currently, the bill does not say how many of each should be included, which leaves it to the Secretary’s discretion. Also adds “national organizations that represent individuals with disabilities and older adults” to the list of committee members.

Udall 1 (modified): Creates a new section that requires the Secretary to conduct a study on ways to encourage manufacturing of HAVs and related components in the United States. Secretary is then instructed to develop recommendations for methods to incentivize manufacturing HAVs in the U.S.

Wicker 2 (modified): Adds a new section, “Cybersecurity Consumer Education Information,” that requires the Secretary to develop educational cybersecurity resources to make consumers aware of motor vehicle cybersecurity risks and how to minimize them. These resources must be available to the public on NHTSA’s website. When developing these resources, the Secretary is instructed to consult with industry, safety organizations, state and local governments, security researchers, and the National Institute of Standards and Technology. Manufacturers are required to include information that refers consumers to this cybersecurity resource website in owners’ manuals or on their website.