Federal autonomous vehicle legislation could get a lame-duck boost

Should Democrats take control of the US House of Representatives, the effort to pass federal autonomous vehicle legislation may be kicked into overdrive. Industry lobbyists and innovation enthusiasts see a window of opportunity in a lame-duck session where Senate Republicans would be more willing to pass a compromise bill rather than start the process from ground zero with a newly minted Democratic House.

The SELF Drive Act unanimously passed the House last September in rare a show of bipartisanship. Subsequently, the Senate Committee on Commerce, Science and Transportation approved the Senate’s sister bill, the AV START Act. Following the unanimous House passage and a smooth committee process in the Senate, industry representatives were expecting the legislation to pass easily in a full Senate floor vote. However, several Democratic senators stalled the legislation after expressing concerns regarding safety, cybersecurity and the extent of federal preemption.

If passed, the bill would increase the number of National Highways Traffic Safety Administration (NHTSA) safety exemptions, spur an autonomous directed update to the Federal Motor Vehicle Safety Standards (FMVSS), require cybersecurity protections and preempt state laws regulating vehicle safety. At present, the federal government regulates the vehicle itself—its construction, composition and reliability—while state governments regulate driver competence. But now that distinguishing the driver from the vehicle is increasingly difficult, overlap between state and federal law has left automotive companies without a clear standard. The Senate legislation, as it is written today, would address uncertainty in the short term by increasing exemptions and fix it in the long term by updating or creating new federal motor vehicle standards for highly automated vehicles.

Without passage of a new law, automakers will continue to be constrained by the FMVSS. These prescriptive standards define how nearly every component of a vehicle is designed and constructed. They address everything from the position of rearview mirrors to the need for power-operated windows. A significant number of the standards assume the presence of a human operator in the vehicle. For example, FMVSS specify how components must react to a driver turning the wheel, pressing the brake pedal and engaging a turn signal, just three of the estimated 30-plus driver-specific vehicle requirements.

As vehicles become more advanced, many of the human controls will be unnecessary—and a burden to innovative design. In 2015 Waymo requested an interpretation from NHTSA as to how the agency would treat a vehicle without human controls. NHTSA responded that it would accept the vehicle as the driver, but it could not interpret the lack of human controls as compliant with FMVSS. As such, Waymo and other automakers have, for the most part, temporarily abandoned the idea of constructing new utilitarian vehicles, devoid of human controls, in favor of retrofitting traditional vehicles with autonomous technology. Such vehicles can operate freely, regardless of level of autonomy, as long as the vehicle is compliant with FMVSS and state law.

It is clear that, to achieve the full long-term benefits of autonomy, an update to federal motor vehicle standards is required. But, as many in the industry note, constructing a whole new set of standards for highly automated vehicles could take anywhere from seven to 20 years. Thus, NHTSA exemptions are available in the near term to automakers that want to deploy vehicles that do not meet certain driver-centric requirements.

The aforementioned FMVSS update, increased NHTSA exemptions and an end to the patchwork of laws and requirements beg the most immediate passage of federal legislation. Legislation that has, until recently, been stuck in park may receive a second wind come the lame-duck session (although its chances are still remote). Should it come to fruition, we will see a more deliberate push to prepare federal standards for the fast-approaching autonomous future.

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Eric Tanenblatt

About Eric Tanenblatt

Eric Tanenblatt is the Global Chair of Public Policy and Regulation of Dentons, the world's largest law firm. He also leads the firm's US Public Policy Practice, leveraging his three decades of experience at the very highest levels of the federal and state governments.

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Crawford Schneider

About Crawford Schneider

Crawford Schneider is an associate managing director in Dentons' Public Policy and Regulation practice focusing on matters involving state and local government affairs, including legislative/regulatory research and drafting, land use and zoning, economic development, public-private partnerships, public policy surrounding disruptive transportation, and international trade and investment.

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