Putting autonomous vehicle legislation in the driver's seat

Soon after autonomous vehicle legislation failed to cross the finish line in the 2018 lame-duck session of Congress, Senator John Thune (R-SD) and Senator Gary Peters (D-MI) got to work on a bicameral and bipartisan solution they are hoping will come to pass in 2019.

Sen. Thune, who chaired the Senate Committee on Commerce, Science and Transportation before turning in the gavel to become his party’s majority whip, described the inability of the Senate to pass the AV Start Act last year in one word: “disappointing.”

Yet, after months of silence, a renewed effort to spur a regulatory overhaul at the Department of Transportation is in the works. “There have been bicameral meetings, House and Senate, Republicans and Democrats, to see if there’s a consensus path forward” on autonomous vehicles, Sen. Thune told Politico. “If there is, we’ll pursue that. That gives us the best chance of getting a result.”

It should be noted that the legislation proposed in both the House and the Senate in 2018 was wholly bipartisan. The House bill enjoyed strong support, with lawmakers passing it on a voice vote. That fact is a source of hope among supportive members and their staff, who are optimistic that progress can be made amid a divided government.

However, the new Democratic House majority brings with it an enhanced focus on vehicle safety and oversight of manufacturers. Bolstered by low public trust of driverless vehicles, Democratic members of the House are expected to force a complete overhaul of the 2018 legislation.

That overhaul will come to fruition in three key committees — the House Energy and Commerce Committee, the House Transportation and Infrastructure Committee and the Senate Commerce, Science and Transportation Committee — that are operating under the leadership of new chairs who now hold significant influence over future autonomous vehicle legislation.

The House Energy and Commerce Committee is chaired by former ranking member Frank Pallone, Jr. (D-NJ). As the ranking member, Rep. Pallone was an advocate for the SELF DRIVE Act, but now as Chair, he is expected to place a greater emphasis on consumer protections. Additionally, Representative Peter DeFazio (D-OR), the new Chair of the House Transportation Committee, will likely exercise more stringent oversight of the Department of Transportation.

In the Senate, as noted above, Sen. Thune left the chairmanship of Commerce, Science and Transportation to assume the number two position in Republican leadership as majority whip. Sen. Thune’s growing influence in the upper chamber could benefit autonomous vehicle legislation. Moreover, support from Sen. Peters increases the chances of a bipartisan solution to autonomous vehicles. “We want to try to make sure we work coordinated,” Sen. Peters told Politico. “We did a lot of negotiation on the bill last year. We weren’t able to get it on the floor and move it, but we made quite a bit of headway.”

Notably, if the two chambers are unable to come to an agreement on compromise legislation, Sen. Thune and Sen. Peters vowed to reintroduce the bill that failed last session. That bill would increase the number of National Highway 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.

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, addressing everything from the position of rearview mirrors to the need for power-operated windows. 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. As such, 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.

An FMVSS update, increased NHTSA exemptions and an end to the patchwork of state laws and requirements necessitate the most immediate passage of federal legislation. After Congress was unable to address the issue last session, the emergence of bipartisan talks is a welcome sign for autonomous vehicle advocates. 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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