Congress: Magical Time for Autonomous Vehicles

The Republicans are in general agreement and the Democrats I've seen appear to be on board for major changes to vehicular regulation in the US - for autonomous vehicles. NHTSA will be the big winner and states will lose much of their authority via federal preemption. The US Constitution permits Congress to use its enumerated powers, in this case the Commerce Clause, to bar states from interfering by passing laws or issuing regulations that interfere with federal law.

The time is near at hand and legislation may move quickly with so much bipartisan agreement on this issue, which is relatively under the radar. With the Russia investigation, healthcare, taxes, and infrastructure sparking controversy both among Republicans and with Democrats, it will be magical to see the House and the Senate come together on regulation of autonomous vehicles.

Note that I am not writing about anything with only Democratic support.

Not just cars and adorable shuttles

We have yet to see the big 16-bill package reported on by Reuters and in the Eno Center for Transportation blog post. Legislation submitted thus far in the US House of Representatives offers absolutely nothing but a glimpse into politics that shows how at least one interested party has found a sympathetic congressperson. H.R. 2120 , the Buses United for Safety, Regulatory Reform, and Enhanced Growth for the 21st Century Act, has a provision (Section 12) that requires the Secretary of Transportation to:

include and consult with the motorcoach and school bus industries through its representatives, including motorcoach and school bus manufacturers, companies operating mo­tor­coaches and school buses, and motorcoach and school bus industry associations, in all phases of development of vehicle policy and proposed regulations.

This is a nice directive, but it has no teeth. Conversations will take place, some of which will be taken seriously, but the Department of Transportation and its relevant divisions, particularly NHTSA, which issues standards that regulate bus safety, and the Federal Motor Carrier Safety Administration will not be compelled to listen.

Innovation Act 

Senate bill 1225, the Vehicle Innovation Act of 2017, comes with a nice title and authorizes  - but does not appropriate - funding for energy-related research related to energy, specifically to "(A) improve the fuel efficiency and emissions of all vehicles produced in the United States and (B) reduce vehicle reliance on petroleum-based fuels." Yes, those italicized words are actually included in legislation that could become law in the US - with a highly conservative Congress.

I will not bore you with too many details, just ones that pop out of this multi-page, multi-agency-related bill. I do love reading through the details because that's where the gold of what's happening can be located.

Through the Department of Energy (DOE), for fiscal years 2018-2022, over $300 million each year is authorized for research. This means that in separate legislation, Congress may - but does not have to - appropriate - meaning spend - UP TO the amount authorized. The research portions of the bill mention batteries, efficiency, waste heat recovery, aerodynamics, natural gas, and more. (I like the batteries part because one offspring is in grad school in that field.)

It's a long list, and toward the end comes vehicle to vehicle technology (V2V) and "other research areas as determined by the Secretary." Talk about leeway.

DOE vs. DOT

Remember, all of the above goes through DOE. It's quite interesting that the industry consultation requirement, which specifically refers to manufacturers of vehicles, only refers to DOE and not to the Department of Transportation (DOT). This list of players who should be consulted "to the maximum extent practicable" specifically mentions transit and transit, among other heavy vehicle-related industries, gets its own section of the bill in terms of research that mimics what is mentioned above.

Parallel universe bills on cybersecurity

Two pieces of legislation with similar, but somewhat conflicting visions have been submitted. The Security and Privacy in Your (SPY) Car Act, S. 680, introduced in the Senate thus far has only Democratic support, so it will not go far. It's a suggestion, an opening gambit, a way of staying in the game, in my opinion. It goes into detail about setting privacy standards, preventing hacking, and data storage and access. It addresses the roles of both the Federal Trade Commission (FTC) and the National Highway Transportation Safety Administration's (NHTSA) roles.

In the House of Representatives, a Republican from South Carolina has introduced a somewhat different SPY Act, with one Democrat so-sponsoring. This bill, HR 701, officially called the Security and Privacy in Your Car Study Act of 2017, or the SPY Car Study Act, directs NHTSA to study cybersecurity standards for vehicles "in consultation with the Federal Trade Commission, the Director of the National Institute of Standards and Technology, the Secretary of Defense, the Automotive Information Sharing and Analysis Center, SAE International, manufacturers of motor vehicles, manufacturers of original motor vehicle equipment, and relevant academic institutions."

You can tell whose lobbyists have been successful and which entities are perceived as established and trusted players. Again, that word "consultation" is broad enough to drive a truck through and it does not mandate equal consultation or coordination.

What will the study do? It will lead to a - wait for it - report. This is DC, a place that loves nerdy reports as much as action.

Plan to repeal

A House bill, HR 1623, would repeal the Advanced technology vehicles manufacturing incentive program, a loan fund program enshrined in 42 USC 17013.

Interesting tidbit on preemption vis a vis autonomous vehicles

This brief from the University of Washington School of Law's Technology Law and Policy Clinic, Autonomous Vehicles Team,  offers a view of preemption in terms of NHTSA regulation and tort liability in state courts during the Bush W's and Obama's years.