House Committee on Energy and Commerce Holds Hearing to Discuss Future of Autonomous Vehicles

The House Committee on Energy and Commerce met recently to discuss a federal legislative framework for regulating autonomous vehicles. After the hearing, the House Energy and Commerce Committee and the U.S. Senate Committee on Commerce, Science, and Transportation released draft portions of a new bill.

This is not the House's first attempt to regulate autonomous vehicles. In 2017, the House passed the SELF DRIVE Act, but the legislative push died in the Senate. Opponents of the legislation were concerned that the proposed Senate bill would preempt states from adopting their own safety standards. If states were barred from regulating, they argued, there would be little to no oversight of autonomous vehicle testing and deployment until the National Highway Traffic Safety Administration ("NHTSA") updated its safety and testing standards to account for autonomous vehicles.

Since 2017, federal agencies have begun to make progress toward regulatory standards specific to autonomous vehicles. In May 2019, NHTSA and the Federal Motor Carrier Safety Administration both issued advance notices of proposed rulemaking, seeking input on how to adapt safety and testing standards for autonomous vehicles. The agencies have received hundreds of comments from industry groups and individuals; however, new regulations have not yet emerged. Without AV-specific standards, autonomous vehicles remain subject to the general Federal Motor Vehicle Safety Standards, unless their manufacturers receive an exemption from NHTSA.

In addition, in November 2019 the National Science and Technology Council and the Department of Transportation ("DOT") issued a new guidance document—"Automated Vehicles 4.0"—aimed at coordinating regulatory efforts among federal agencies. Previous guidance documents had focused on establishing best practices for state regulation, so the shift in focus may indicate growing momentum for federal administrative action in the field.

In the recent Energy and Commerce hearing, the House indicated that it is ready to try again for an overarching federal legislative framework. A bipartisan group of members expressed impatience with the Senate's prior failure to pass automated vehicle legislation and eagerness to put forward a new bill. The draft language released by the House envisions a more robust role for the DOT and would impose affirmative, enforceable requirements, particularly with respect to cybersecurity. The draft language also outlines a plan for educating consumers about the capabilities of autonomous vehicles, and—in contrast to the failed 2017 bills—it appropriates funding to execute these statutory requirements.

However, the allocation of regulatory authority between federal and state governments continues to be contested. Witnesses at the Energy and Commerce hearing expressed familiar concerns about the prudence of adopting federal legislation, and thus preempting state regulation, without firm safety standards in place. And the recently released draft text did not reveal any proposed preemption solution. It remains to be seen whether these concerns will hinder the bill from moving forward in the House and, eventually, the Senate.

In the absence of federal action, technology companies continue to forge ahead, with many seeking exemptions from existing federal automobile safety standards to test autonomous vehicles. In fact, NHTSA recently allowed deployment of the first fully automated delivery truck. Companies also have the option of voluntary certification through the International Organization for Standardization (ISO), which has promulgated AV standards to promote uniformity.

At the same time, many state and local governments have been issuing regulations affecting the testing and adoption of autonomous vehicles. Most recently, California's new Consumer Privacy Act went into effect on January 1, 2020, establishing data privacy rights similar to the European Union's General Data Protection Regulation. Although this new law is not specific to autonomous vehicles, a key issue for AV technology is ownership and protection of the data they generate, and the California Consumer Privacy Act will shape manufacturers' choices in this area. Relatedly, Los Angeles now requires Uber to share information and data on scooter trips in the city, a step that could foreshadow similar action with respect to autonomous cars.

The good news for AV companies is that many states are adopting a permissive stance towards AV testing, and exemptions from NHTSA standards continue to be available where necessary. Jones Day is ready to assist clients in navigating the evolving AV landscape.