House Tees Up Revamp of an Automated Vehicle Bill

On Tuesday, February 11, the House Committee on Energy & Commerce Subcommittee on Consumer Protection & Commerce held a hearing on “Autonomous Vehicles: Promises and Challenges of Evolving Automotive Technologies.” The hearing foreshadowed the yet to be fully released House bill on automated vehicles outlining key concerns and topics of importance to the Subcommittee members. More sections of the bill were released Wednesday evening, with sections on the more controversial topics still to come.

The bill will be a follow up to the SELF DRIVE ACT, which unanimously passed in committee and passed in the House with bipartisan support in 2018. The Senate’s AV START Act, however, passed through committee but never made it to the floor in 2019, leaving it to the 116th Congress to start over. These bills would been the first step in creating a defined federal framework for automated vehicle (AV) regulations. In the last two years technologies have advanced, hype has dissipated, and more testing and data collection have shed light on abilities and challenges with AV technologies.

Despite the passage of time and opportunities for education, the hearing once again made clear the challenges associated with AV definitions. Only some of the legislators separated discussions around automated driving systems (ADS) and advanced driver-assistance systems (ADAS) versus automated vehicles (AV). For example, an ADAS is an AV with features that help a driver, but still require human engagement. Higher level AVs, which vehicles have ADS, would be designed with systems that might not need any human intervention.

The conversation therefore shifted back and forth between legislating and regulating systems versus vehicles, which also has implications for elements of where responsibility and liability lie.

Workforce, testing and the economy
Subcommittee chairwoman Jan Schakowsky (D-IL) opened the hearing noting that the economic and workforce implication of AVs, with 4.4 million Americans working in some capacity as drivers, are out of scope of the subcommittee hearing, but members and witnesses continue to refer back to the topic over the following few hours. Cathy Chase, President of Advocates for Highway and Auto Safety quoted the direct cost of traffic crashes in the US as $250 billion a year.

Throughout the rest of the hearing, members and witnesses alike focused on the economy from more of a global perspective. They expressed concern that other countries are pulling ahead of the US in innovation. The 2019 KPMG Autonomous Vehicles Readiness Index places the US behind the Netherlands, Singapore, and Norway. Members also mentioned China, Japan, and Canada as advancing more rapidly than the US. Panelists agreed that legislation for a clear AV regulatory framework would help the US in development and implementation.

Safety and exemptions
The NHSTA statistic that 94 percent of crashes are due to human error leads to agreement among legislators and witnesses that AVs have the potential to improve roadway safety. But safety regulations need to balance the opportunity to save lives with ensuring that the technology is safe to deploy. NHTSA needs the capacity and information to create new Federal Motor Vehicle Safety Standards (FMVSS) for certain AVs. With the current administration’s timely budget request, witnesses suggested that NHTSA should be given additional resources and personnel to assess and regulate safety of both ADS and ADAS technologies.

Witness Jeffrey Tumlin, Director of Transportation for the San Francisco Municipal Transportation Agency, suggested that the impending legislation should include elements to support NHTSA, researchers, and the public in assessing AV safety. Mandated data recorders and a national, accessible database for all collision data involving an AV could enable that support.

Agreeing that more data can help inform better safety performance, witness John Bozella, President and CEO of the Alliance for Automotive Innovation, framed data collection within the bounds of FMVSS exemptions. He sees expanding exemptions for more vehicles enabling larger fleets on the roads, thus creating the opportunity for more data collection. But Chase suggested that additional testing on public roads could achieve the same volumes of data, and the sparse number of exemption applications submitted to date to NHTSA, suggests a lack of latent demand for increased fleet sizes.

Witness Gary Shapiro, President and CEO of the Consumer Technology Association, echoed Bozzella’s call for an easier process and higher vehicle cap for FMVSS exemptions. He punctuated the problem of long timelines, such as for the amount of time it takes to change FMVSS, with a reference to Vision Zero, “If you are going towards zero deaths, you aren’t going to get there in our lifetime.”

(Note: While cutting roadway fatalities might be an outcome from AVs, examples like Helsinki, Finland demonstrated achieving their goal of zero fatalities in 2019, not through technology but largely through slowing vehicles.)

Access for People with Disabilities
Witness Mark Riccobono, President of the National Federal of the Blind, reminded the Subcommittee that the United States is a leading nation in including people with disabilities in the public process and in innovation development that bolsters the economy and quality of life for everyone. In that context, he outlined actions that government and manufacturers could take to design AVs for people with disabilities. Most of these actions deal with controls, including driving activities, infotainment systems, and navigation as well as designs that enable people to locate the vehicles before a trip.

Multiple interfaces, not just voice control, can help ensure access for people with various abilities, and including people with disabilities on advisory councils moving forward can help ensure that vehicles and policies follow universal design and are accessible from the outset.

Given that much of the conversation took place in the context of roadway safety, there was a surprising lack of discussion about the potential impact of AVs on blind people and people with disabilities external to operating vehicles. Researchers are still studying interactions between AVs and vulnerable road users. Focusing on safety both inside and outside of the vehicles is paramount to eliminating traffic fatalities.

AV developers want the ability to require users of their systems to sign arbitration agreements that would avoid court battles in case of a lawsuit. Addressing the topic from the side of trial lawyers, which in part derailed AV legislation in 2018, Witness Daniel Hinkle of the American Association of Justice held the unsurprising position that any legislation should ensure the ability to take AV manufacturers to trial. Hinkle explained that AVs represent a promise from manufactures that vehicles will operate safely, and that the only way to hold them to that promise is to maintain the ability to hold them accountable in court. He gave multiple examples of lawsuits uncovering safety problems in vehicles in the past.

Proponents of keeping the ability to require arbitration in the upcoming version of an AV bill point to recent history. The last Congress came close to passing such legislation but were set back in part due to disagreements over the topic of arbitration. Members and stakeholders who are eager to see the passage of the bill may be prone concede in the name of compromise. Of all the sections released of a new bill so far, this contentious issue hasn’t yet been breached.

National security concerns raised at the hearing included individual vehicle and fleetwide hacking, both for data breaches and weaponization of the vehicles. Chinese testing on US roads drew particular attention, not only in the context of testing opportunities, but also from a national security perspective with the Chinese government gaining access to data collected on US infrastructure and people.

Although NHTSA does already have the authority to recall vehicles with cyber vulnerabilities, Chase pointed out the limitation of this reactive policy, and suggested adding a proactive authority that would allow NHTSA to keep any car (AV or not) off the road in the case of cybersecurity concerns. New legislation could set related requirements for AVs, but some members see this as an opportunity to increase cybersecurity on all vehicles, especially with the ride of ADAS and connected vehicle technologies in SAE automation Level 1 and 2 vehicles.

Staff and members now have the task of navigating these and other issues to create a draft bill. Members have released many sections, mostly omitting resolution of the more contentious topics, and said a full bill would be released later this year.

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