United States: Congress And Executive Branch Continue Momentum Toward Bipartisan Federal Policies On Autonomous Vehicles

A week after the House of Representatives passed sweeping autonomous vehicle (AV) legislation, the Senate and the Trump administration both moved forward on AV policy initiatives this week, with Department of Transportation Secretary Elaine Chao releasing policy guidance, which is now out for public comment, and the Senate releasing a discussion draft of legislation and holding hearings on potential impacts to the trucking sector.

DOT's Chao releases NHTSA policy guidance

On Tuesday at the University of Michigan, US Secretary of Transportation Elaine Chao announced the DOT and the National Highway Traffic Safety Administration's (NHTSA) release of "Automated Driving Systems 2.0: A Vision for Safety." Automated Driving Systems 2.0 provides guidance to industry and state regulators on managing this fast-evolving technology, fostering innovation and moving toward a holistic national approach to regulation and safety. The voluntary policy guidance, which replaces a previous voluntary guidance for the deployment and testing of self-driving cars issued by the Obama administration, asserts that the second version provides "a more flexible approach to advancing the innovation of automated vehicle safety technologies." The guidance encourages the development of best practices and making safety a priority. The document also provides technical assistance to states and examples of best practices for policymakers. It does not suggest new federal regulation at this time, explaining that the technology is new and rapidly evolving. The new guidance was published in the Federal Register on September 12 and the NHTSA has already commenced a 60-day public comment process.

The key change from the previous guidance involves the safety assessment for AVs that companies want to test and deploy. The 2016 guidance, "Federal Automated Vehicles Policy," included a 15-point safety assessment process and allowed manufacturers to voluntarily submit their assessments of their vehicles and systems to the NHTSA, which would review and then publish them. The process was sparsely followed due to its voluntary nature. Under Automated Driving Systems 2.0, the safety assessment is scaled back to a 12-point process, manufacturers are no longer expected to submit them to the NHTSA for federal approval. In addition, Automated Driving Systems 2.0 guidelines are strictly focused on levels 3, 4 and 5 vehicles, in all of which the driver need not remain attentive during the system's operation.

The 2016 Obama guidance provided a model state policy on regulations for AVs. The Trump guidance moves away from this approach, providing instead a set of best practices for both state legislatures and highway safety officials that begins to more clearly define state and federal regulatory roles. Mirroring bipartisan legislation emerging in Congress, the new guidance clarifies a preferred, nationally uniform approach where the federal government defines safety standards and requirements and states and localities focus on traditional licensing and registration matters, with a view to avoiding a patchwork of uncertain regulatory approaches that could stifle sector growth.

The NHTSA states that the 60-day public comment process demonstrates its intention to "continually revise and refine the guidance to reflect continued public input, experience, research and innovation."

Senate Commerce Committee releases discussion draft of legislation

The Senate Commerce, Science and Transportation Committee has made progress on its work on AV legislation. The committee recently released its staff discussion draft days after the House passed its own AV legislation with strong bipartisan support.

The Senate draft mirrors the House bill, though it also differs from the lower chamber's measure in some key respects. Like the House bill, the Senate draft would direct the Transportation Secretary to establish a "Highly Automated Vehicles Technical Safety Committee," which would provide the Transportation Secretary recommendations on consensus-based performance standards and the harmonization of national AV safety standards with international standards. The House bill provides the advisory committee with a broader mandate that includes not just safety standards but also protection of mobility access for the disabled and elderly.

The Senate draft would also allow AVs to receive exemptions from NHTSA safety standards under certain circumstances, such as if an exemption would make it easier for the development or field evaluation of a new motor vehicle safety feature. Under the Senate draft, up to 50,000 AVs could qualify for this exemption in the first 12-month period after the bill is enacted. The House bill, on the other hand, would limit exemptions to 25,000 AVs in that first 12-month period.

The Senate draft also requires that each manufacturer submit to the Transportation Secretary a safety evaluation report for each new AV or AV driving system that it introduces into interstate commerce. The safety evaluation report shall include a description of how the manufacturer is addressing key issues related to AVs, including system safety, data recording, cybersecurity, human-machine interface and crashworthiness, among other issues.

The Senate draft notes that a number of key issues remain unresolved among CST Committee members, including state preemption and whether the measure should address autonomous trucks.

Senate hearing on autonomous trucking

Autonomous trucks were the subject of a September 13 CST Committee hearing featuring testimony from a diverse group of stakeholders. The hearing underscored a divide between labor and industry interests on whether autonomous passenger vehicles and autonomous trucks should both be included in this bill and regulated on the same track. Witnesses including American Trucking Associations President and CEO Chris Spear, Navistar President and CEO Troy Clarke and National Safety Council President and CEO Deborah Hersman, who argued that automated trucks should be part of the bill since regulations could then address both automated trucks and passenger cars, which would provide regulatory certainty and clarity, which is important for the sector's development.

Ken Hall, General Secretary Treasurer of the International Brotherhood of Teamsters, disagreed, testifying that "the issues facing autonomous commercial trucks are fundamentally different, and potentially more calamitous than those facing passenger cars, and warrant their own careful consideration." Hall urged lawmakers against "taking a cookie cutter approach" in addressing risks related to automated trucks.

Accordingly, it remains to be seen whether trucking issues will be folded into currently moving legislation or remain on a separate course and timetable.

Senator Gary Peters (D-MI), who has been engaged in discussions with Committee Chairman John Thune (R-SD) on the draft bill, stated that he does not believe automated trucks should be included in this measure due to issues related to safety and potential driver displacement. During the hearing, Peters and other Democrats on the Committee raised concerns about autonomous trucks having a negative impact on truck driver jobs. Spears contended that the technology would assist, not displace, truckers. Notably, the House bill was limited to automated passenger vehicles and did not address automated trucks.

Speaking for the Committee, Senator Thune expressed a commitment to introducing and passing bipartisan AV legislation, but he gave no timetable and the Committee will likely first have to address the divide on whether trucks should be part of the measure.

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