September 14, 2017
House Passes the SELF DRIVE Act, Consideration in Senate Committee Hearing on Including Large Commercial Autonomous Vehicles, and New Department of Transportation Guidelines
Autonomous vehicles have operated for some time under a patchwork of state and local rules with limited federal oversight, but the last two weeks have seen a number of interesting legal developments towards a national regulatory framework. The accelerated pace of policy proposals—and debate surrounding them—is set to continue as automakers’ request more autonomous vehicles be put on the road for testing. While it seems likely that the federal government will step into a leading role by passing initial legislation later this year or early next, autonomous vehicles operating on public roads are likely to remain subject to both federal and state regulation.
On September 6, 2017, lawmakers in the House took a major step toward advancing the development of autonomous vehicles, approving legislation that would put vehicles onto public roads more quickly and curb states from slowing their spread. Amid strong bipartisan support the House voted to pass H.R. 3388, a bill which is intended to accelerate the development of self-driving cars. The “Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution” or “SELF DRIVE” Act empowers the National Highway Traffic Safety Administration (NHTSA) with the oversight of manufacturers of self-driving cars through enactment of future rules and regulations that will set the standards for safety and govern areas of privacy and cybersecurity relating to such vehicles. One key aspect of the Act is broad preemption of the states from enacting legislation that would conflict with the Act’s provisions or the rules and regulations promulgated under the authority of the Act by the NHTSA. While state authorities will likely retain their ability to oversee areas involving human driver and autonomous vehicle operation, the Act contemplates that the NHTSA would continue to retain its authority to oversee manufacturers of autonomous vehicles, just as it has with non-autonomous vehicles, to ensure overall safety. In addition, the NHTSA is required to create a Highly Automated Vehicle Advisory Council to study and report on the performance and progress of autonomous vehicles. This new council is to include members from a wide range of constituencies, including members of the industry, consumer advocates, researchers, and state and local authorities. The intention is to have a single body (the NHTSA) develop a consistent set of rules and regulations for manufacturers, rather than continuing to allow the states to adopt a web of potentially widely differing rules and regulations that may ultimately inhibit development and deployment of autonomous vehicles.
While a uniform, concrete set of standards for the entire country has been welcomed by automakers and business lobbyists alike, whether the NHTSA has the resources to fulfil its supervisory role as envisaged by the bill remains a real question—echoed by the concerns of a number of consumer advocate groups. The requirements that manufacturers develop specific privacy and cybersecurity plans before being allowed to sell vehicles, along with specific requirements for disclosures to vehicle purchasers, are likely to please many consumer advocates. However, while the Act does provide for a phase-in period, it would ultimately increase the possible number of autonomous vehicles on the road dramatically. Currently, automakers and companies interested in testing self-driving technology must apply to the NHTSA for exemptions in relation to certain safety requirements that non-autonomous vehicles must meet; and the agency only grants 2,500 exemptions per year. This bill increases that cap to 25,000 per year initially, and expands it up to 100,000 annually in three years’ time. Although the number of exemptions represents a slight decrease from the original draft bill, the bill passed by the House could still amount to potentially millions of such cars each year: a tall order for an agency which does not yet have an administrator.
The SELF DRIVE Act now moves to the Senate, which has its own self-driving car legislation under review by the Commerce, Science and Transportation Committee. One key difference between the House and Senate versions of the legislation appears to be in the area of commercial vehicles, as the House version is focused on passenger cars and light trucks, not heavy commercial vehicles over 10,000 pounds (4,536 kg). The Chair and some other members of the Senate Commerce Committee appear inclined to include large commercial vehicles in any autonomous vehicle legislation that makes its way to the President, and, as a result, scheduled a public hearing on September 13, 2017, to consider the impact of large autonomous vehicles on road safety.
Various witnesses at the September 13 hearing—including a trucking trade group, truck maker Navistar International Corp. and a representative from the National Safety Council—urged the Senate panel to develop a clear, uniform federal regulatory framework for autonomous vehicles by including large commercial vehicles in the Senate bill. Labor union Teamsters opposed such a move, citing concerns that self-driving trucks are subject to a very different set of safety and operational issues—warranting their own regulation and bill—and also raised particular concerns over cybersecurity and the loss of driving jobs. Senator Gary Peters (D-Mich), who has been working with Republicans to draft self-driving legislation, said at the hearing he did not support including commercial trucks and that safety and job impacts must be addressed further. Senator John Thune (R-S.D.), the Committee Chair, supports the inclusion of commercial trucks in the legislation, but said no final decision had been made. Thune indicated that he hoped to introduce a bill and get committee approval by early October 2017.
In addition to the flurry of activity in Congress, on September 12, 2017, the Department of Transportation (DoT) released new safety guidelines for autonomous vehicles to replace those issued by the Obama administration last year. Transportation Secretary Elaine Chao announced that these purely voluntary guidelines (“a nonregulatory approach to automated vehicle technology safety”) are designed to clarify the federal government’s view of best practices for vehicle developers and state legislators and officials as more test cars reach public roads, and offer the lighter regulatory touch for which automakers previously advocated. Through the guidelines, the DoT avoids any compliance requirement or enforcement mechanism, at least for the time being, as the scope of the guidance is expressly to “support the industry as it develops best practices in the design, development, testing, and deployment of automated vehicle technologies.”
Under the Obama administration, automakers were asked to follow a 15-point safety assessment before putting test vehicles on the road. The new, pared-down guidelines reduce the suggested safety assessment to a 12-point voluntary assessment, asking automakers to consider cybersecurity, crash protection, how the vehicle interacts with occupants and backup plans in the event that the vehicle encounters a problem. Significantly, the DoT is no longer specifically asking automakers to address in a safety assessment any ethical or privacy issues (although a footnote to the guidelines does suggest the DoT recognizes the continued relevance of such issues). Nor is it requesting that manufacturers share information beyond crash data, apparently reflecting concerns expressed by automakers in response to the previous guidelines, which suggested that automakers collect, store, analyze and share with NHTSA, and potentially with competitors, event reconstruction data from “near misses”, i.e. positive outcomes in which the system correctly detects a safety-relevant situation, and successfully avoids an incident. The federal guidelines are purposely crafted in a way that they can be adapted, and will be updated again next year. NHTSA has invited public comment on the voluntary guidance and best practices.
As may be evident from the goals of the SELF DRIVE Act noted above, the delineation of federal and state regulatory authority has emerged as a key issue, chiefly because autonomous vehicles do not fit neatly into the existing regulatory structure. Historically, the DoT has regulated and enforced how vehicles are built, particularly with regard to overall safety concerns, but states are typically responsible for the operation of vehicles. The DoT’s new best practices for state legislatures explicitly seek to continue this basic schema and allocate overarching regulatory authority for autonomous vehicles to the federal level. (“[A]llowing NHTSA alone to regulate the safety design and performance aspects of ADS technology will help avoid conflicting federal and state laws and regulations that could impede deployment.”) States can still regulate autonomous vehicles, but the guidance encourages states not to pass laws that would “place unnecessary burdens on competition and innovation by limiting [autonomous vehicle] testing or deployment to motor vehicle manufacturers only.” It remains to be seen how the DoT’s proposed strict delineation will cope with issues surrounding liability for auto accidents.
California, as a state that has previously enacted legislation and regulations requiring automakers to publicly report crashes of autonomous test vehicles and which requires and issues approvals prior to testing of autonomous vehicles on California public roads, said it was reviewing the new guidelines.
In addition to putting some limits on roll-out and affording some assurances on security and privacy safeguards, the new legislation and guidelines indicate strong federal intent to provide more uniformity of requirements imposed on manufacturers across the country, and to keep the general oversight of the design and manufacture of autonomous vehicles with the federal government (as it has been) rather than cede such power to the individual states. As a result, the intent seems to be to speed both development and deployment of autonomous vehicle technologies.
If the Senate passes legislation that would amend the SELF DRIVE Act in any significant way, the resulting bills will need to go to Conference to reconcile any differences between the versions passed by the two chambers. In addition, given the very busy nature of the legislative calendar this year, particularly that of the Senate, it is hard to say whether Congress will be able to send some version of the SELF DRIVE Act to the President for ratification into law before the end of the year, or whether additional time will be required. However, what does seem to be clearly emerging from recent events is the near-universal, bipartisan support in Congress and the Executive branch for the need to take back the reins from the states and amend federal safety requirements to account for the introduction of autonomous vehicles on U.S. roads in the form of new federal legislation and regulations.
Debate surrounding the regulation of large commercial vehicles is proving more contentious, in large part because the specter of potential job losses resonates strongly with labour groups. Whether or not large commercial vehicles are ultimately included in the bills currently being considered by Congress, a national regulatory framework for all autonomous vehicles has moved well within reach. We will continue to carefully monitor these developments and the bevy of unresolved policy issues—safety, ethics, data privacy, cybersecurity, insurance—that will inevitably accompany them.
 H.R. 3388, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/3388/text
 Cecilia Kang, Self-Driving Cars’ Prospects Rise With Vote by House, N.Y. Times, Sept. 6, 2017, https://www.nytimes.com/2017/09/06/technology/self-driving-cars-prospects-rise-with-vote-by-congress.html.
 NHTSA Administrator, NHTSA: National Highway Traffic Safety Administrator, https://one.nhtsa.gov/About-NHTSA/About-the-Administrator, (last visited Sept. 12, 2017) (“The position of NHTSA Administrator is currently unfilled.”).
 U.S. Chamber of Commerce, Senate Self Driving Car Legislation Staff Draft, Sept. 8, 2017, available at https://www.uschamber.com/report/senate-self-driving-car-legislation-staff-draft)
 U.S. Senate Committee on Commerce, Science and Transportation, Press Release, Sept. 6, 2017, available at https://www.commerce.senate.gov/public/index.cfm/pressreleases?ID=BAC7FBCE-424B-4C61-8082-71B3E3D9333B
 Gina Chon, Teamsters Union Tries to Slow Self-Driving Truck Push, N.Y. TIMES, Aug. 11, 2017, https://www.nytimes.com/2017/08/11/business/dealbook/teamsters-union-tries-to-slow-self-driving-truck-push.html?_r=0
 Reuters, Trucking Industry, Navistar back U.S. Self-Driving Legislation, N.Y. TIMES, Sept. 13, 2017, https://www.nytimes.com/reuters/2017/09/13/business/13reuters-autos-selfdriving.html?_r=0
 Automated Vehicles for Safety, NHTSA: National Highway Traffic Safety Administrator, https://www.nhtsa.gov/technology-innovation/automated-vehicles.
 U.S. Dept. of Transp., Automated Driving Systems 2.0: A Vision for Safety ii (September 2017), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf.
 Patti Waldmeir & Leslie Hook, Trump administration promises light touch on driverless cars, Financial Times, Sept. 12, 2017, https://www.ft.com/content/ff3a02fc-97e6-11e7-a652-cde3f882dd7b.
 U.S. Dept. of Transp., Federal Automated Vehicles Policy, Sept. 2016, https://www.transportation.gov/AV/federal-automated-vehicles-policy-september-2016
 Id., at pp. 17-18.
 Notice of Public Availability and Request for Comments, Docket No. NHTSA-2017-0082, (signed on Sept. 12, 2017), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/ads2.0_frn_08312017.pdf
 U.S. Dept. of Transp., Automated Driving Systems 2.0: A Vision for Safety ii (September 2017), at § 2, https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/automated-driving-systems-2.0-best-practices-for-state-legislatures.pdf
 Kang, supra note 2.
 Testing of Autonomous Vehicles, State of California: Department of Motor Vehicles, https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/testing.
 Russ Mitchell, Driverless cars on public highways? Go for it, Trump administration says, L.A. Times, Sept. 12, 2017, http://www.latimes.com/business/autos/la-fi-hy-driverless-regs-chao-20170912-story.html.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, or the authors:
Please also feel free to contact any of the following:
Theodore J. Boutrous, Jr. – Los Angeles (+1 213-229-7000, email@example.com)
Christopher Chorba – Los Angeles (+1 213-229-7396, firstname.lastname@example.org)
Theane Evangelis – Los Angeles (+1 213-229-7726, email@example.com)
© 2017 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.