Legislating Automation: How Congress is Approaching Automated Vehicles

Matthew Raifman
Oct 10, 2017 · 9 min read
Boston-based nuTonomy is already testing automated vehicles in the Seaport District. Congress is poised to expand from 2,500 to 100,000 automated vehicle exemptions over the next three years.

The fall of 2017 has been good to proponents of federal automated vehicle (AV) legislation, with both the House (H.R. 3388) and Senate (S. 1885) considering bills in earnest. With overwhelming bipartisan support in both houses of Congress, it seems reasonably likely that an AV bill will find its way to the President’s desk soon, paving the road for a federally regulated operating environment for AVs.

This is the first of a three-part series that explores the key components of the AV legislation currently under debate, from expanding the use of AVs, to how the government will ensure their safe operation, to cybersecurity and beyond.

Part I of III Includes:

  • Quick Recap on the Legislation: Two Bills, Two Great Titles

Quick Recap on the Legislation: Two Bills, Two Great Titles

H.R. 3388, “short” titled the ‘‘Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act’’ or SELF DRIVE Act, was introduced back in late July by Rep. Latta (R-OH-5) and co-sponsor Rep. Schakowsky (D-IL-9) and unanimously voted out of the Committee on Energy and Commerce on September 5th. A day later, the House at large approved it after 40 minutes of debate through a voice vote. Interesting fact: the House bill was originally introduced with the alternative — but equally wonderful — short title of “Designating Each Car’s Automation Level Act” or the DECAL Act. After passing the House, H.R. 3388 was sent to the Senate and referred to the Committee on Commerce, Science, and Transportation where it current sits as the Senate considers its own bill.

Tracking H.R. 3388 via https://www.govtrack.us/congress/bills/115/hr3388

The Senate AV bill, S. 1885, was introduced on September 28th by Senator Thune (R-SD) and co-sponsored by Senators Peters (D-MI), Blunt (R-MO), and Stabenow (D-MI). By all indications, the Senate bill is likely to gain similar bipartisan support as it makes its way through the Senate. Last week, S. 1885 was reported out of the Committee on Commerce, Science, and Transportation and is now expected to make its way to the Senate floor for a chamber vote in the coming months. Incidentally, the Senate bill also has a great title: the “American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act” or AV START. With any luck, the Senate and House will come up with an even better short title for the final, combined bill.

Tracking S. 1885 via https://www.govtrack.us/congress/bills/115/s1885

Weight Limit: Trucks and Buses Need Not Apply

While automated freight vehicles have the potential to alleviate trucker stress and improve safety, and also address a 50,000-person truck driver shortage, it is looking unlikely that we will see automated 18-wheelers cruising our highways anytime soon as both the Senate and House bills include a 10,000 pound cap on automated vehicles. Short of an amendment to the Senate bill on the floor, it looks unlikely that the Senate will expand the weight limit established by the House. Incidentally, the 10,000-pound threshold leaves plenty of room for passenger vehicles — including electric vehicles like the Tesla Model S (~5,000 lbs) with heavy battery packs.

What 10,000 pounds is and isn’t. Author’s visualization.

On the one hand, there is certainly an argument to be made that rolling out automated vehicle technology on highways would be safer than in cities. One of the most vexing challenges for AVs is the unpredictable actions of humans, both as drivers and pedestrians. On highways, the human-AV challenge is minimized compared as roads are less densely utilized, speeds are relatively consistent, and the operating environment is simpler.

On the other hand, it is easy to see why the trucking unions came out in opposition to the inclusion of trucking in both AVs bills citing concern that AV systems would disrupt employment in the sector. With studies about the impact of automation on employment earning above-the-fold coverage at The Economist, Bloomberg, and the L.A. Times, there is good reason to worry that allowing even limited use of AV capabilities in the freight sector could be a slippery slope to full automation. Ultimately, the utter transformation of the mobility sector with the advent of transportation network companies like Uber and Lyft — particularly the crash in the value of taxi medallions — could be just an appetizer, and the main course is full automation.

While less discussed, the weight limit also prohibits testing and implementing automated mass transit buses on the roads (e.g. an automated bus operating on a bus-rapid transit route). This removes another relatively easy application of automated technology from implementation. With dedicated lanes and established routes, bus-rapid transit vehicles are probably the easiest and safest application of AV technology in urban environments. The 10,000-pound limit, however, does not prohibit testing and operating smaller AV shuttles like those from EasyMile and Navya that are being piloted in a few cities across the country.

Preemption: Federal Law Reigns Supreme

Another area where the Senate and House bills are aligned is their assertion that the federal government alone is responsible for regulating the “design, construction, [and] performance” of automated vehicles. Both bills specify that the federal government will be the only entity regulating how automated vehicles are built, how they perform, and what safety requirement they must meet.

Why does this matter? For some time, the role of states, cities, and the federal government has been somewhat unclear when it comes to regulating AVs. According to the National Conferences of State Legislatures, 21 states have passed legislation that regulates AVs and another five have executive orders in place that relate to AVs. In this no mans land of regulation, some states have passed bills requiring that a human sit behind the steering wheel to take over if something goes wrong, other states (like California) have sought to develop unique safety standards and performance requirements for AVs operating within their borders.

National Conference of State Legislatures tracks automated vehicle legislation and executive orders.

The potential for jurisdictional complication goes even further than the state level. Conceivably, should an AV be operated by a Transportation Network Company (TNC) like Uber or Lyft in a city that regulates TNCs itself (for example in New York City with the Taxi and Limousine Commission), then cities may even have a say in regulating the operation of AVs.

Both states’ rights advocates and AV manufacturers can agree that this hodgepodge of regulatory authority is untenable in the long-term. The challenge here is that some states feel that AV technology is too untested to be rolled out safely and object to the federal government removing their ability to regulate the design and performance of AVs to make them more safe. This is complicated by the fact that the House and Senate bills dramatically increase the number of AVs that may operate without meeting motor vehicles safety regulations (see “exemptions” section below). In essence, the federal government is saying to states: “you can no longer regulate AVs on the grounds of safety and you must trust us to monitor their safety in the absence of revised motor vehicle standards.” That is a tough pill to swallow for states and localities, and with good reason.

While much ado has been churned up over the federal assertion of regulatory power, both bills also clarify the extensive list of what states will still control. That said, the devil might hide in the details. Here’s what the House bill has to say when it comes to a state’s right to regulate AVs:

“Nothing in this subsection may be construed to prohibit a State or a political subdivision of a State from maintaining, enforcing, prescribing, or continuing in effect any law or regulation regarding registration, licensing, driving education and training, insurance, law enforcement, crash investigations, safety and emissions inspections, congestion management of vehicles on the street with in a State or political subdivision of a State, or traffic unless the law or regulation is an unreasonable restriction on the design, construction, or performance of highly automated vehicles, automated driving systems, or components of automated driving systems.” — H.R. 3388

This specification may both open and close doors on the ability of states to regulate AVs. While states may no longer mandate design and performance specifications, they still, have the authority to control car registrations, auto insurance, and congestion management. Through this suite of powers, a state that is concerned about the impact of AVs on its community could fairly easily prevent AVs from operating within its borders, or ensure that AVs are operated only under certain conditions (e.g. last mile service to areas not served by public transit).

On the other hand, there is also a big loophole in House and Senate bills that opens the door to AV operators and manufacturers to object to state regulations. Did you catch it? Here it is: “unless the law or regulation is an unreasonable restriction on the design, construction, or performance of highly automated vehicles…” If a state requires that AVs exclusively serve an under-served population to be registered, does that constitute an “unreasonable restriction”? We don’t really know. The term isn’t defined. Rather, this is something that may well be worked out in challenges, lawsuits, and perhaps additional legislation to come.

Exemption: AVs Don’t Need to Follow the Same Rules…For Now

While we colloquially talk about the House and Senate bills as authorizing automated vehicles to operate, they are actually more specifically allowing AVs to be exempted from the motor vehicles safety requirements that all other vehicles must adhere to.

Vehicles in the U.S. are regulated by Title 49, Chapter 301 of the U.S. Code which dictates the design, construction, performance, and durability requirements for vehicles utilizing public roadways. Automated vehicles, however, are a new technology that requires updated regulations (e.g. should steering wheel rules apply to AVs?). Rather than wait until new regulations were developed, the Department of Transportation under the Obama Administration back in September 2016, through National Highway Traffic Safety Administration (NHTSA), allowed 2,500 automated vehicles to operate on our nation’s roads by exempting them from having to follow the current motor vehicle regulations.

The Senate and House bills dramatically scale up to 100,000 exemptions over the next three years. With over 190 million light-duty vehicles registered in America, 100,000 AVs is a tiny drop in the bucket, but compared to current levels it is a pretty significant move.

Exemptions for automated vehicles increase to 100,000 over the next three years in both the House and Senate bills, albeit in different intervals. (Assumes bill is signed in late 2017/early 2018).

The House and Senate bills have slightly different timelines for the expansion. The House bill expands the number of exemptions 10 fold to 25,000 for the first 12 months, then 50,000 for the next year, and finally 100,000 in the third year after the legislation is passed. The Senate bill is a bit more aggressive, starting with 50,000 in the first year, then 75,000 in the second year, and 100,000 in the final year. Further, the Senate legislation also indicates that manufactures can petition for more than 100,000 if desired.

It’s not clear to me if the increase from 2,500 exempted AVs to 100,000 constitutes an increase in safety risk, given the we expect computers to be better at driving than humans. In fact, increasing the number of AVs on the road may actually ever so marginally reduce the number of traffic fatalities on our roads at a time when they are once again on the rise. But the general concept of allowing more vehicles to operate on our roads outside of the motor vehicle safety code is concerning. The exemption process is intended to be a stopgap measure to allow for limited piloting of new technology while the motor vehicle code is updated. By dramatically scaling up the number of exemptions, Congress will increase reliance on a shadow safety regime that exists outside of the U.S. code.

There’s a tension here between enabling the testing of new technology that could benefit the public, and maintaining the regulatory processes that were established for good reason. To address this tension, both the House and Senate bills: 1) task USDOT with quickly updating the motor vehicle regulations to account for AVs; and, 2) specify requirements for interim safety reporting.

Part two of this three-part series will pick up here with Congress’ proposed approach to automated vehicle safety. Stay tuned.

Feel free to reach out if you have thoughts or questions, or comment below.

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