Congress Takes Steps to Revive Legislation Regulating Autonomous Vehicles

On July 26, 2023, the House Subcommittee on Innovation, Data, and Commerce hosted a legislative hearing entitled “Self-Driving Vehicle Legislative Framework: Enhancing Safety, Improving Lives and Mobility, and Beating China,”¹ as an initial step toward reviving legislation regulating automated vehicles (“AVs”) originally introduced in 2017. The hearing centered on the importance of enacting a national framework for AVs that addresses:

• The safe operation and deployment of AVs;
• The role of AV technology in breaking down transportation barriers for those with disabilities and other mobility challenges;
• The economic importance of solidifying the U.S.’s role as a world leader in the automotive industry through the continued expansion of the design and manufacturing of AV technology in the U.S.;
• Data privacy and cybersecurity protections; and
• The effects of AVs on the U.S. workforce.

The subcommittee received written and oral testimony from Mr. Mark Riccobono, President of the National Federation of the Blind; Mr. John Bozzella, President and CEO of the Alliance for Automotive Innovation; Mr. Gary Shapiro, President and CEO of the Consumer Technology Association; and Dr. Phillip Koopman, Ph.D., Associate Professor, Carnegie Mellon University. The testimonies focused on the themes of trust, safety, and mobility. The subcommittee considered two discussion drafts:

• H.R. __, the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act (SELF DRIVE Act); and
• H.R. __, to amend title 49 United States Code, to provide for updated and new motor vehicle safety standards and regulations for highly automated vehicles and partially automated vehicles, and for purposes.

While any movement from Congress on the regulation of AVs is notable, two key takeaways from the legislative hearing suggest that Congress continues to grapple with the issues that held back enacting prior versions of AV legislation.

Additional Data is Needed

The subcommittee members and witnesses generally recognized automation’s potential to reduce death and injuries by eliminating human errors and increasing mobility options for the disabled. However, several participants raised concerns regarding whether current AV technology can reduce death and injuries now and suggested that understanding the potential safety benefits of AVs would require additional data. Recognizing that the National Highway Traffic Safety Administration (NHTSA) currently collects data related to certain incidents involving advanced driver assistance systems (ADAS) and AVs under Standing General Order 2021-01, concerns were expressed whether that data is complete and accurately reflects the operational safety of these systems. To further improve public trust in and understanding of the safe operation of AVs, most of the participants acknowledged that additional data is required. Of course, the way to collect this data is through further testing and deploying AVs on public roads.

The hearing discussed the importance of expanding NHTSA’s exemption authority under 49 U.S.C. § 30113 for AVs from the current 2,500 vehicles per year to 100,000 vehicles per year. The discussion draft for the SELF-DRIVE ACT proposes such an increase as a way to facilitate gathering additional information and data about on-road AV usage and to solidify the U.S.’s role as a leader of automotive innovation.

Federal, State, and Local Regulations Remain a Patchwork

The hearing also addressed the importance of clarifying the roles of Federal, state, and local governments in regulating emerging automotive technologies. Several subcommittee members and witnesses suggested that the Federal government should have exclusive responsibility for regulating AV accessibility, safety, design, and manufacturing nationwide, reserving state and local governments to maintain their traditional role of regulating titling, registration, the rules of the road, and deployment of ADAS technologies and AVs. Mr. Bozzella specifically noted the need for NHTSA to modernize the Federal Motor Vehicle Safety Standards (FMVSS) to account for new AV technology. Dr. Koopman recommended that NHTSA move forward with the rulemaking it initiated in a previously issued Advanced Notice of Proposed Rulemaking and adopt current engineering industry standards and best practices for AV technology.

The subcommittee also debated the role of Federal and state governments in regulating liability surrounding AV usage. While the automotive industry has viewed liability issues as outside the scope of Federal legislation, some members and witnesses argued for legislation that would limit manufacturer liability or ban pre-dispute arbitration. Those that have followed past legislative proposals around vehicle automation will recognize these issues, which led prior proposals to stall. Whether these issues can be untangled before the end of this Congress remains to be seen.

The Effects of Congressional Action

By holding this hearing, Congress has begun to take steps to place AV technology back into the foreground and to revive its prior bipartisan and bicameral efforts to regulate the safe deployment of AV technology. Regardless of the fate of this round of legislation, NHTSA will continue down its current path of reviewing FMVSS safety standards by its rulemaking schedule.  On that path, NHTSA recently issued amendments to the FMVSS 200-series (crashworthiness) safety standards and is currently analyzing the FMVSS 100-series (crash avoidance) safety standards for potential changes that can facilitate the safe deployment of AVs. Furthermore, on July 12, 2023, NHTSA’s Acting Administrator, Ann Carlson, discussed what the Agency referred to as the “ADS-equipped Vehicle Safety, Transparency, and Evaluation Program, or AV STEP.” While details of the program are still forthcoming, NHTSA broadly explained that AV STEP would “consider applications for deploying noncompliant ADS vehicles, subject to review processes, terms, and conditions that the agency would require to ensure public safety and transparency.”² NHTSA intends AV STEP to facilitate collecting the same types of data that committee members and witnesses discussed would be critical to advancing ADAS technologies and AVs.

Manufacturers should continue to monitor for additional legislative actions and regulatory changes from NHTSA. Manufacturers should also consider ways to present clear data and information on how advanced technologies safely operate to help shape any forthcoming regulation of AV technologies.