What’s in the AV START Act?

The US Senate releases draft legislation to regulate self-driving cars, following the House of Representatives

Earlier this month, the House of Representatives passed the SELF DRIVE Act (SDA), the first major US legislation establishing policies for regulating self-driving cars (see my earlier post for details of that bill). Last week, the US Senate Committee on Commerce, Science & Transportation released a companion bill, called the AV START Act (ASA).

The ASA bill — which is just a committee draft, and hasn’t passed the Senate — has some important differences with the SDA in several areas. I’ll review those here. But first we should note that it’s a bipartisan bill, introduced by two Republicans and two Democrats, meaning it has a genuine chance of passing. Despite the differences between the House and Senate bills, it’s starting to look like Congress might be able to hammer out a substantial piece of legislation on autonomous vehicles this year. That would be a major achievement in such a partisan political climate.

Let’s start with what’s not in the ASA. Most importantly, trucks are excluded. Self-driving trucks aren’t receiving the same attention as self-driving passenger vehicles, but they’re a big deal. Leaving them out of the bill means the legislative process will be much simpler, since there are substantially different policy and political issues at stake with trucking — most notably, opposition from the Teamsters. But Congress will have to deal with them eventually, so expect this issue to resurface in the relatively near future.

Despite the differences between the House and Senate bills, it’s starting to look like Congress might be able to hammer out a substantial piece of legislation on autonomous vehicles this year.

Second, there’s no mention of data privacy in the ASA. This is odd, since it’s a significant part of the House bill, and it’s clearly on the minds of some Members of Congress (as it should be). We’ll see if this issue gets attention during the legislative debate in the Senate — if not, Congress may wind up simply adopting the House provisions.

Moving to what is in the bill, Section 3 establishes federal pre-emption in matters of autonomous vehicle design, construction and performance. This is identical to the House version. The only place where it differs is the addition of a clause prohibiting states from issuing licenses to operate purely autonomous vehicles in a way that discriminates on the basis of disability. This is the first of several references to the impact of autonomous vehicles on people with disabilities in the bill.

Section 4 deals with potential conflicts between the technological reality of autonomous vehicles and the legal details of current federal vehicle safety standards. It contains some surprises, and it takes a different approach from the House bill. The key issue is the need to amend federal vehicle safety regulations to clear away any unintended hurdles for driverless vehicles — i.e. regulations that require equipment or systems that are necessary for a human driver, such as a steering wheel, but are irrelevant for a self-driving car.

This is notable — the Senate is essentially fast-tracking the rulemaking process by asking the Volpe Center to solve the problem.

The ASA approaches this by directing the Volpe Center — DOT’s technical laboratory near the MIT campus — to conduct a comprehensive review of all federal vehicle regulations to identify ones that might create unintentional barriers for self-driving cars. This review must include suggestions for alternative regulatory language that would allow autonomous vehicles, and it needs to be finished within six months. Volpe has already done substantial work on this issue, so this makes sense.

Once the review is done, DOT has one year to update regulations based on the findings, or else the report by the Volpe Center effectively becomes federal regulation. This is notable — the Senate is essentially fast-tracking the rulemaking process by asking the Volpe Center to solve the problem. As a reminder, the House bill directs DOT to begin a regulatory update process, but the timeline is much slower.

Section 5 carves out an explicit exemption to the federal vehicle safety standards for autonomous vehicles that will be used exclusively for testing, and not sold to consumers or otherwise used in commerce. This makes sense, and resolves an awkward and unnecessary legal situation.

Section 6 expands the number of exemptions to certain federal vehicle safety regulations that DOT can issue for self-driving cars. Like the House bill, it increases this to 100,000 over several years (although the timing is slightly different). There are some variations in the process (it includes a sunset clause, but excludes the public database in the House bill) but it generally seems aligned with the intent of the House bill.

Section 7 tweaks a provision in current regulations that prohibits manufacturers from “making inoperative” any required safety devices in a vehicle. The language in this section would create an exemption for situations where a vehicle switches into autonomous driving mode, and safety devices (presumably systems for warning drivers) are turned off. This isn’t included in the House bill.

While both bills include language prohibiting DOT from conditioning the deployment of autonomous vehicles on these safety reports, it’s clear that the Senate language is tougher on manufacturers.

Section 8 addresses the SAE five-level system for defining autonomous vehicles. The House bill is somewhat skeptical of this system, and directs DOT to conduct a review of whether consumers understand it. The ASA takes a different view, explicitly directing DOT to use the SAE taxonomy. If and when SAE updates it, DOT can decide not to adopt the updated version, but it then has to continue to use the old version.

Section 9 deals with safety, requiring AV manufacturers to submit “safety evaluation reports” to DOT. There are some major differences with the House bill in this section. First, the bill explicitly mandates that manufacturers submit these reports no later than 90 days before introducing an autonomous vehicle into commerce. This is much different than the House approach, which begins by directing DOT to develop regulations about what manufacturers have to submit, and when. While both bills include language prohibiting DOT from conditioning the deployment of autonomous vehicles on these safety reports, it’s clear that the Senate language is tougher on manufacturers — among other things, the ASA also mandates annual updates to these reports, and gives DOT the explicit power to require more information from manufacturers.

There’s a laundry list of specific things the reports must include, such as sub-system testing, the sensor and object detection methods, the post-crash behavior of vehicles, the human-machine interface (including how vehicles will accommodate people with disabilities), and the expected operational design of the vehicle in autonomous mode. It references some traffic safety data sharing provisions of the 2015 FAST Act (presumably Section 3024), and makes a brief mention of cybersecurity (there’s a longer cybersecurity section later in the bill). All in all, this language specifies a very detailed report by manufacturers, and these reports will be made public (with an exception for proprietary information). It seems likely there will be some push-back from the industry about having to disclose and annually report this level of information.

Section 10 creates an autonomous vehicles technical advisory body. This is similar to the advisory body in the House bill, although the ASA includes an emphasis on ensuring that AVs will be usable by people with disabilities.

Section 12 directs DOT to create a working group on consumer education about autonomous vehicles. While this is similar in spirit to the House bill, it avoids invoking the Federal Trade Commission’s regulatory authority, and also avoids reviewing the SAE five-level taxonomy.

DOT is encouraged to work with manufacturers to develop a cyber vulnerability information sharing system. This is good practice in general cyber security, but it’s a little hard to see this working in the autonomous vehicle context

Section 13 directs DOT to conduct research on traffic safety related to autonomous vehicles, particularly mixed traffic scenarios with autonomous and conventional vehicles. It also requires updating the crash reporting system to include autonomous vehicle crash data. This is very sensible.

Section 14 deals with cyber security. It requires manufacturers to “develop, maintain and execute” a cybersecurity plan. Most of this language is voluntary, although DOT is encouraged to work with manufacturers to develop a cyber vulnerability information sharing system. This is good practice in general cyber security, but it’s a little hard to see this working in the autonomous vehicle context for the time being since the data systems are pretty specialized for each manufacturer (unlike cyber security for PCs, for example, where everyone uses similar operating systems, office applications, etc).

All in all, there’s more in common than not between the House and Senate (draft) bills. That’s encouraging for those (like me) who think there needs to be a federal framework for regulating autonomous vehicles sooner rather than later. The policy ideas in both bills are generally reasonable, so I’m optimistic that Congress can pass a good piece of legislation this year. Stay tuned!

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