Autonomous Vehicles Start Act Legislative Update

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Bracing for a chaotic four-week period during which Republicans hope to clear the legislative decks before unified GOP control expires at year’s end, lawmakers returned to Washington Tuesday to the sound of a fast-ticking lame duck clock.

Alarmed by Democrats’ ascendancy and their new policy leverage, Republicans are eager to finally advance a light-touch autonomous vehicle regulatory framework after the proposal has languished for more than a year in committee over cyber and safety concerns.

In that time, a fragmented patchwork of state-level regulatory and safety regimes have propagated across the country, which industry has increasingly complained has hindered the safe and fair deployment of driverless technology in the United States. At the same time, global rivals like China have strategically normalized federal safety and testing protocols.

A comprehensive proposal to fast-track testing and deployment of self-driving vehicles unanimously cleared the House of Representatives by voice vote more than a year ago, but has yet to reach the floor of the upper chamber. The bill’s forward progress has been stalled due to Democratic safety and cyber concerns as well as disagreements about forced arbitration in any claims resulting from autonomous vehicle collisions. Democrats are seeking assurances that certain types of claims be exempt from predetermined arbitration agreements as well as clarification regarding the preservation of tort claims under federal preemption provisions. 

Aware that significant and possibly hostile committee leadership changes are on the horizon, the automotive and technology sectors have begun pushing for a legislative solution to the current patchwork of state laws before the first meeting of the 116th US Congress. Should the AV Start Act fail to pass in a lame-duck session, the legislation would revert to the House where Rep. Jan Schakowsky (D-Ill) who is expected to chair the Energy and Commerce Committee’s Subcommittee Subcommittee on Commerce, Manufacturing and Trade, which drafted the current House bill, is already on record stating any legislation produced under Democratic leadership would be “significantly different.” 

Republican Senate leadership has a few options to push a bill through. The most popular path among Senate Republicans is circulating compromise text and using the hotline process. If that effort fails there are a few other routes. The Senate could go through cloture motions under a unanimous-consent agreement, allowing for debate on a small list of key amendments. Alternatively, there’s a slight possibility of obtaining unanimous consent for a straight up-or-down vote on a pre-negotiated bill with no amendments. And finally, autonomous vehicle provisions could be worked into spending bills as a mechanism to win passage of other measures. 

However, any of the above options would require concessions on several issues, including safety, data privacy and cybersecurity. Additionally, each route to passage would likely require the blessing of trial lawyers, who stand to gain influence once the newly Democratic House convenes. 

A new federal regulatory framework would provide industry leaders clarification on standard performance requirements and, in turn, expanded design flexibility. The industry is operating in the dark on several important vehicle considerations that are as yet unregulated by the states. At present, voluntary guidance is the sole regulatory tool overseeing vehicle safety and there are no state laws addressing insurance and liability as it relates to autonomous technology. Automakers, eager to mass-produce their vehicles, desire clear standards in order to justify large investments. 

Moreover, federal legislation would require the National Highway Traffic Safety Administration to create new, or to modify existing, Federal Motor Vehicles Safety Standards to allow for innovative vehicle designs devoid of foot pedals, steering wheels and other traditional controls. The pending legislation would not only direct rule-making but would also impose a timetable on what is a notoriously extensive process. 

While AV development and deployment can proceed at the state level, federal legislation would provide the clarity necessary to expand innovative bandwidth. While the chances of the AV Start Act becoming law in the lame-duck session remain slim, the impending Democratic House majority is reviving a sense of urgency among Republican lawmakers, which could lead to a compromise bill. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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