House Committee Passes Self-Driving Vehicle Legislation

The U.S. House Energy and Commerce Committee, on July 27, unanimously approved a bill that would regulate self-driving vehicles. The bill, named the “Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act” (“SELF DRIVE Act”), would: 

1. Preempt state regulations of self-driving vehicles. 

2. Require that the Secretary of Transportation draft new regulations regarding the submission of safety data for self-driving vehicles. 

3. Require that manufacturers of self-driving vehicles submit a cybersecurity plan to address potential vulnerabilities in automated vehicle control systems. 

4. Establish a Highly Automated Vehicle Advisory Council to provide policy recommendations to Congress regarding autonomous vehicles. 

5. Require that manufacturers of self-driving vehicles develop a privacy plan regarding the collection and use of vehicle owner and occupant data. 

Under the proposed legislation, automakers could apply for exemptions for a limited number of vehicles for up to four years. The bill will now be considered by the full House of Representatives while the Senate works on introducing a similar bill. 

The legislation comes as a growing number of states have adopted regulations on self-driving vehicles. Automakers have voiced growing concern over the complex patchwork of regulations and the need for a single federal standard. Federal regulation of self-driving vehicles is currently limited to voluntary guidelines issued by NHTSA in September 2016. 

Preemption of State Laws 

The proposed bill would preempt State regulations regarding the design, construction, or performance of “highly automated vehicles” (HAVs), which are defined as those vehicles with automated driving systems capable of performing all of the functions required to operate a vehicle in on-road traffic on a sustained basis. The bill, however, does not prevent States from enforcing identical regulations as the federal standard. Furthermore, the preemption provision does not expressly preempt liability based on State common law. 

New Regulations 

The proposed bill requires, within 24 months, that the Secretary of Transportation issue new regulations requiring that automakers submit a safety certification for their HAVs. The precise content of the safety certification would be specified in the rule, but the data must be sufficient to demonstrate that the vehicles are likely to maintain function as intended and that they contain fail-safe features. Until the final rule is issued, the bill would require automakers to submit safety assessment letters as contemplated in NHTSA’s September 2016 guidance.¹ 

The bill would also require the Secretary to initiate a review of the Federal Motor Vehicle Safety Standards (“FMVSS”) and develop a plan regarding the need for any changes or additions to the FMVSS. The legislation requires that the Secretary initiate the rulemaking process within 18 months of the bill’s passage. 

The bill would also mandate new rules requiring that automakers inform consumers about the capabilities and limitations of a given vehicle’s driving automation system. 

Cybersecurity Plan 

Under the proposed legislation, automakers selling automobiles with any degree of driving automation must develop a cybersecurity plan within 180 days. The plan must include a written description of the automaker’s strategy for detecting and responding to cyberattacks. The plan must also name an employee with responsibility for cybersecurity and delineate the employee training process regarding cybersecurity policies and procedures. 

Advisory Council 

The bill would require the Secretary, within 6 months, to establish a Highly Automated Vehicle Advisory Council. The Council is to be made up of a diverse group of representatives from business, academia, federal and state authorities, consumer advocates, engineers, labor organizations, and environmental experts. The Council is tasked with providing recommendations to Congress on a variety of topics related to HAVs, including mobility of disabled and senior citizens, cybersecurity, sharing of data between automakers and NHTSA, labor and employment concerns, environmental impacts, consumer privacy, vehicle safety, and the use of HAVs in rural or hazardous conditions. 

Privacy Plan 

The proposed legislation would require automakers selling automobiles with any degree of driving automation to develop a privacy plan within 180 days. The privacy plan must delineate: the automaker’s collection and use of occupant information, the notice given to consumers regarding privacy policy, the choices available to consumers regarding the collection and use of data, and the automaker’s efforts to minimize or anonymize information. Automakers need not disclose their policies, however, for the collection and use of information that is anonymized or encrypted. The bill deems a failure to implement an adequate privacy plan as an unfair or deceptive act, subject to enforcement by the Federal Trade Commission. 

Exemptions 

The bill permits NHTSA to grant exemptions to the FMVSS for automakers who can show that the vehicle in question meets the applicable safety standards or is at least as safe as traditional, non-automated vehicles. NHTSA would have authority to exempt up to 25,000 vehicles per manufacturer in the first year, 50,000 vehicles in the second year, and 100,000 vehicles in the third and fourth year. Automakers would still be required to report all crashes involving HAVs. NHTSA would be required to make a public database of all exempted vehicles. 

Footnotes 

_{1) NHTSA Federal Automated Vehicles Policy}