Congress, Take the Wheel
There is plenty of debate about the appropriate regulatory framework for autonomous vehicles and what the details should look like. But the first step in the process is a more fundamental question — who gets to decide? Should it be the federal government? Or should states and cities decide what works for them? What about the dreaded patchwork of laws that might result? These are the questions that Congress is trying to resolve as it considers a preliminary set of 14 bills proposed to address autonomous vehicle regulation.
How Did We Get Here?
We’ve been regulating automobiles in this country for more than 50 years, so why the new debate about federal and state authority? Historically, states have regulated drivers, and the federal government has regulated motor vehicles. But when the car starts driving itself, does that require regulation of a driver or a motor vehicle?
Last fall, the National Highway Traffic Safety Administration (NHTSA), the federal regulator tasked with regulating automobiles, issued its Federal Automated Vehicle Policy (FAVP) which, among other things, set forth its views on the proper division of federal/state authority: NHTSA would “regulate motor vehicles and motor vehicle equipment (including computer hardware and software that perform functions formerly performed by a human driver) and the States would continue to regulate human drivers, vehicle registration, traffic laws, regulations and enforcement, insurance and liability.”
In the FAVP, NHTSA states that the “Vehicle Safety Act expressly preempts States from issuing any standard that regulates performance if that standard is not identical to an existing Federal Motor Vehicle Safety Standard [FMVSS] regulating that same aspect of performance.” NHTSA pointed out that “if NHTSA issued an FMVSS setting performance requirements for HAVs [highly automated vehicles], then a State could not have its own performance standards on the same aspects of HAV performance unless they were identical to NHTSA’s standards.”
But the “if” in that statement is precisely the problem. NHTSA has not issued new FMVSS regarding autonomous vehicles and has noted that while it intends to engage in formal rulemaking in the future, the FAVP is just “voluntary guidance” and does not constitute a formal rule that would preempt states from regulating in this field.
Why did NHTSA not act decisively to prevent states from enacting a patchwork of different rules? A few reasons: (1) due to the administrative process needed to enact formal regulations, NHTSA knew it would take months and likely years to enact new FMVSS to regulate autonomous vehicles; (2) the rules might be outdated by the time they were enacted, or worse, might constrain innovation and prevent the best technology from developing; and (3) NHTSA felt issuing voluntary guidelines along with a model policy for states would deter them from issuing competing regulations. On its website, NHTSA noted that it “strongly encourages States to allow NHTSA alone to regulate the safety and performance aspects of HAV technology and vehicles.”
It hasn’t worked out that way. California has been chief among the states seeking to enact its own regulations and taking positions that are not on all fours with the NHTSA guidance. But plenty of other states have issued varying laws as well, some trying to protect traditional automakers at the expense of technology companies. Faced with the prospect of different laws and regulations in 50 states, the industry has continued to clamor for federal preemption of state rules. While NHTSA could start a formal rule making process, it might be years before it could preempt state laws in this area. Moreover, it would rather keep the flexibility of its voluntary guidance as this technology develops quickly over the next few years.
Congress Steps In
Enter Congress and its set of 14 draft bills in the House. The primary objective of the bills is to preempt state rules governing autonomous vehicles, even though NHTSA has not issued any formal regulations. A secondary objective of the bills is related — it allows NHTSA to issue a greater number of exemptions from current FMVSS (currently capped at 2500 vehicles for up to two years) so that autonomous vehicles can actually be deployed to the public in significant numbers without updating the FMVSS to formally allow vehicles that don’t meet current standards for steering wheels, blinkers, etc.
With federal preemption, and the exemptions from FMVSS expanded to up to 100,000 cars, the industry would have time to test and develop autonomous vehicles, using the voluntary guidance from NHTSA, and then deploy a certain number of vehicles, perhaps in a rideshare or fleet setting, before NHTSA would be required to enact formal regulations. This would be a great outcome for the industry players in tech and traditional auto, and would buy NHTSA the time it needs to let the technology mature before it enacts formal regulations.
None of this is possible without Congress stepping in. The bills are still early drafts, but some key points include:
- Establishing that the federal government is responsible for the oversight of design, construction, mechanical systems, software systems, and communications systems of highly automated vehicles (HAVs) and HAV equipment
- Expressly preempting any state laws to prevent the testing or deployment of this technology
- Allowing states or political subdivisions to continue to regulate registration, licensing, liability, driving education and training, insurance, traffic laws, unless the law or regulation infringes upon an area of federal oversight
- Expanding NHTSA’s ability to grant exemptions to Federal Motor Vehicle Safety Standards for not more than 100,000 vehicles sold in the United States, and allowing renewals of exemptions for not more than 5 years
- Creating two new exemptions from FMVSS: (1) if the exemption would promote the public adoption and acceptance or facilitate the meaningful commercial deployment of a new motor vehicle safety feature or system and provide an overall safety level at least equal to the overall safety level of nonexempt vehicles; or (2) if the exemption would promote transportation access to individuals with disabilities and would provide an overall safety level at least equal to the overall safety level of nonexempt vehicles
- Allowing all manufacturers of HAVs or automated driving system equipment to test motor vehicles not in compliance with FMVSS as long as they submit certain information to NHTSA (currently only established auto manufacturers can do so)
- Clarifying that the Secretary of Transportation shall not institute a pre-market approval or pre-certification process for HAVs (which seems unlikely under this Administration in any event)
On June 27, the U.S House of Representatives Committee on Energy and Commerce, through its Subcommittee on Digital Commerce and Consumer Protection, held a hearing to discuss the autonomous vehicle legislation. Invited to testify were representatives from several industry groups (Alliance of Automobile Manufacturers, Global Automakers, Self-Driving Coalition for Safer Streets, and the US Chamber of Commerce Technology Engagement Center), and two consumer advocates (Consumer Union and a law professor who co-founded Public Citizen Litigation Group with Ralph Nader).
The industry representatives were supportive of the legislation. The primary opposition came from the consumer advocates and the Democratic members of Congress. The biggest points of contention were preemption and the proposed expansion of exemptions from FMVSS. Regarding federal preemption, the opponents of the bills did not advocate for states’ rights or suggest there might be greater innovation if 50 states issue different rules. Instead, the primary concern was the lack of mandatory regulation of any kind if the states are forced to stand down.
In other words, the main objection was the fact that NHTSA itself was not directed to engage in formal rulemaking that would create federal mandatory safety regulations rather than the voluntary guidance currently in place. Hearing participants noted the fact that no NHTSA administrator has been appointed, and no one from NHTSA was able to testify at the hearing, as evidence that NHTSA may be understaffed and under-resourced and therefore unable to serve effectively as the sole regulator of autonomous vehicles. The consumer advocates called for Congress to direct NHTSA to engage in rulemaking and for additional resources and funding for the agency.
On the question of expanded exemptions from FMVSS, again the opponents of the legislation were concerned about lack of standards and oversight, contending that allowing so many non-compliant vehicles to be deployed publicly was a safety risk, particularly without new mandatory HAV regulations from NHTSA.
The Regulatory Road Ahead
With Republicans in control of Congress, and transportation being the least controversial item on their agenda, it is likely that some form of legislation will be enacted to grant industry the relief it is seeking. Whether legislation might ultimately set a time table or other direction to NHTSA to begin a process for formal rulemaking remains to be seen. If the exemptions to FMVSS are not increased in number, then it will be the industry pushing for updates to regulations in order to allow deployment of vehicles when they are ready. But having the time to develop and test the technology now without a second layer of regulation from states (not to mention cities) would still be a significant benefit to the industry, and it would also give NHTSA the time and additional data to see how the technology develops before it turns its guidance into formal rules.
