Federal autonomous vehicle legislation is back on the table. Over the past few months the Republican and Democratic staffs of the House Energy and Commerce and Senate Commerce committees have been holding meetings to hash out bits and pieces of what could, ultimately, form a comprehensive autonomous driving bill. Notably, the bipartisan-bicameral approach has focused, up to this point, on the issues where there is the most consensus: exemptions, testing and evaluation and the establishment of an automated vehicles advisory council. The bipartisan working groups released discussion drafts for each subsection. While exemptions and testing have always been part of the conversation, the Advisory Council, as least as it is presented in the working draft, is a new wrinkle. It would be tasked with developing and presenting to the Secretary of Transportation “technical advice, best practices and recommendations” regarding a host of issues surrounding the AV industry, including, but not limited to, equitable access, education, cybersecurity, labor and employment, environmental impact, and safety. Notably, the working draft for vehicle exemptions is littered with brackets, highlighting the long road ahead before lawmakers settle on a final compromise.

Of course, this is only the latest of several efforts to pass federal driverless vehicle legislation. As you may remember, the last Congress was close to passing such a law, but ultimately fell short. The SELF Drive Act passed the US House of Representatives unanimously in September 2017 and a few months later a sister bill in the Senate, the AV START Act, was approved by the Senate Committee on Commerce, Science and Transportation. The bill was not brought to the floor in 2018. In the lame duck session, after Democrats had gained a majority in the House of Representatives, there was a sliver of hope as the bill began to gain momentum and for a brief moment it seemed the bill would pass. But, ultimately, safety and cybersecurity concerns raised by Sens. Ed Markey, Richard Blumenthal and Dianne Feinstein, coupled with tepid on-again-off-again support from the American Association for Justice, doomed the legislation. The trial lawyers association remains highly interested in any bill dealing with driverless vehicles and as such, the organization will remain involved in the developing conversations going forward. In fact, according to Politico, leaving out any arbitration language was the cost of entry for Democrats’ participation in the bill negotiating process.

Moreover, other hot button issues have been thus far left out of the conversation entirely including cybersecurity and federal preemption. Until those issues are hashed out in full, the passage of any comprehensive bill remains a remote possibility.

Finally, a section on rulemaking is rumored to have been discussed, but a draft has yet to surface. Regardless of Congress, the Department of Transportation is moving forward with the rule-making process independent of any congressional requirement. Both the National Highway Traffic Safety Administration and Federal Motor Carrier Safety Administration recently concluded a public comment period aimed at determining whether the rules and regulations currently in place are, collectively, an obstacle to the effective rollout of autonomous vehicles. The National Highway Traffic Safety Administration requested comment on challenges concerning testing and compliance with Federal Motor Vehicle Safety Standards in vehicles that lack human controls. Similarly, the Federal Motor Carrier Safety Administration asked for comment on any Federal Motor Carrier Safety Regulation sections that may need to be “amended, revised, or eliminated” to facilitate the public deployment of commercial motor vehicles.

In conclusion, the push for an autonomous vehicle bill in Washington is in the early stages and while the process has yielded some results, the most contentious issues have yet to be discussed. Until legislators begin the tough conversations, autonomous vehicle proponents face an uphill battle.