Jon Sohn

US Senate Commerce Committee Marks up and Passes Autonomous Vehicles Bill

The US Senate Committee on Commerce Science and Transportation (the Committee) today marked up and passed bipartisan legislation, S.1885, the AV START Act, proposed by Senators John Thune (R-SD) and Gary Peters (D-MI). The bill now moves forward for a vote by the full Senate and will then need to be reconciled with similar legislation that passed the House in early September.

Key provisions of the bill include:

Clarifying federal, state and local roles: Mirroring the legislative provisions in the SELF-DRIVE Act (H.R. 3388), which passed the House in early September, the bill codifies the Department of Transportation’s (DOT’s) lead national role for AV safety standards and performance while supporting state and local roles in determining traffic laws, registration and licensing. This approach avoids a patchwork of state and local safety standards that could stunt sector innovation.

Protecting Americans with disabilities: The bill expressly prohibits the denial of a license to operate a self-driving vehicle on the basis of a disability. Corresponding best practices are outlined for drivers with disabilities as this technology emerges. Ahead of the hearing the American Association for People with Disabilities, the National Federation of the Blind, the National Council on Disability and a coalition of other similar interests all endorsed the legislation.

Safety reports: The bill requires vehicle manufacturers to submit, prior to the testing or deployment, safety evaluation reports to the Secretary of Transportation (the Secretary) on safety, crashworthiness and cybersecurity based on testing, validation and assessment protocols.

Safety standards: The bill expands the Secretary’s existing discretionary authority to allow for a streamlined process for federal motor vehicle safety standards to prioritize safety for up to 80,000 vehicles per manufacturer three years after enactment after an amendment from Senator Richard Blumenthal (D-CT) that lowered the exemption from 100,000.

Maintains status quo for trucks and buses: Despite some proposals to have the legislation apply to trucks and buses, the Act applies only to vehicles weighing 10,000 pounds or less.

Cybersecurity: The Secretary is directed to convene and partner with AV manufacturers to develop and implement policies related to mitigate the risks of potential cybersecurity breaches. In addition, the bill mandates manufacturers to establish comprehensive plans for identifying and mitigating cybersecurity risks to self-driving vehicles.

The bill also establishes a DOT-led committee of experts to propose standards, including for data recording and data access and sharing. This public-private stakeholder forum will have a broad mandate to develop other recommendations for other policy issues related to self-driving vehicles over time.

Consumer protection: The bill also calls for the establishment of guidelines on “responsible consumer education and marketing.” These guidelines will educate consumers on the capabilities and limitations of this new technology and will be developed through a transparent, formal working group.

During the markup, Senator James Inhofe (R-OK) offered, and then withdrew, an amendment that would have included heavy trucks in the Act’s definition of a highly automated vehicle and would have given the National Highway Traffic Safety Administration (NHTSA) authority to regulate heavy trucks under the Act. Inhofe withdrew the amendment in response to opposition from several senators concerned about how automation would affect employment within the trucking industry. Committee Chairman John Thune (R-SD) committed to work with Inhofe on the trucking issue.

The Committee also adopted a number of non-controversial amendments by voice-vote. One of the more notable amendments, offered by Senator Tammy Duckworth (D-IL), would require the DOT to conduct a study on the transportation, mobility, environmental, energy security, and fuel economy impacts of highly automated vehicles on public roads.  Several amendments dealt with cybersecurity. For instance, the Committee approved an Inhofe amendment that would establish an advisory committee to provide recommendations to Congress on cybersecurity issues in relation to highly automated vehicles.  Another amendment, offered by Senator Roger Wicker (R-MI), would direct the DOT to develop additional cybersecurity resources to assist consumers in minimizing motor vehicle cybersecurity risks.

Congress and executive branch continue momentum toward bipartisan federal policies on autonomous vehicles

A week after the House of Representatives passed sweeping autonomous vehicle (AV) legislation, the Senate and the Trump administration both moved forward on AV policy initiatives this week, with Department of Transportation Secretary Elaine Chao releasing policy guidance, which is now out for public comment, and the Senate releasing a discussion draft of legislation and holding hearings on potential impacts to the trucking sector.

DOT’s Chao releases NHTSA policy guidance

On Tuesday at the University of Michigan, US Secretary of Transportation Elaine Chao announced the DOT and the National Highway Traffic Safety Administration’s (NHTSA) release of “Automated Driving Systems 2.0: A Vision for Safety.” Automated Driving Systems 2.0 provides guidance to industry and state regulators on managing this fast-evolving technology, fostering innovation and moving toward a holistic national approach to regulation and safety. The voluntary policy guidance, which replaces a previous voluntary guidance for the deployment and testing of self-driving cars issued by the Obama Administration, asserts that the second version provides “a more flexible approach to advancing the innovation of automated vehicle safety technologies.” The guidance encourages the development of best practices and making safety a priority. The document also provides technical assistance to states and examples of best practices for policymakers. It does not suggest new federal regulation at this time, explaining that the technology is new and rapidly evolving. The new guidance was published in the Federal Register on September 12 and the NHTSA has already commenced a 60-day public comment process.

The key change from the previous guidance involves the safety assessment for AVs that companies want to test and deploy. The 2016 guidance, “Federal Automated Vehicles Policy,” included a 15-point safety assessment process and allowed manufacturers to voluntarily submit their assessments of their vehicles and systems to the NHTSA, which would review and then publish them. The process was sparsely followed due to its voluntary nature. Under Automated Driving Systems 2.0, the safety assessment is scaled back to a 12-point process, manufacturers are no longer expected to submit them to the NHTSA for federal approval. In addition, Automated Driving Systems 2.0 guidelines are strictly focused on levels 3, 4 and 5 vehicles, in all of which the driver need not remain attentive during the system’s operation.

The 2016 Obama guidance provided a model state policy on regulations for AVs. the Trump guidance moves away from this approach, providing instead a set of best practices for both state legislatures and highway safety officials that begins to more clearly define state and federal regulatory roles. Mirroring bipartisan legislation emerging in Congress, the new guidance clarifies a preferred, nationally uniform approach where the federal government defines safety standards and requirements and states and localities focus on traditional licensing and registration matters, with a view to avoiding a patchwork of uncertain regulatory approaches that could stifle sector growth.

The NHTSA states that the 60-day public comment process demonstrates its intention to “continually revise and refine the guidance to reflect continued by public input, experience, research and innovation.”

Senate CST Committee releases discussion draft of legislation

The Senate Commerce, Science and Transportation Committee has made progress on its work on AV legislation. The committee recently released its staff discussion draft days after the House passed its own AV legislation with strong bipartisan support.

The Senate draft mirrors the House bill, though it also differs from the lower chamber’s measure in some key respects. Like the House bill, the Senate draft would direct the Transportation secretary to establish a “Highly Automated Vehicles Technical Safety Committee,” which would provide the Transportation secretary recommendations on consensus-based performance standards and the harmonization of national AV safety standards with international standards. The House bill provides the advisory committee with a broader mandate that includes not just safety standards but also protection of mobility access for the disabled and elderly.

The Senate draft would also allow AVs to receive exemptions from NHTSA safety standards under certain circumstances, such as if an exemption would make it easier for the development or field evaluation of a new motor vehicle safety feature. Under the Senate draft, up to 50,000 AVs could qualify for this exemption in the first 12-month period after the bill is enacted. The House bill, on the other hand, would limit exemptions to 25,000 AVs in that first 12-month period.

The Senate draft also requires that each manufacturer submit to the Transportation Secretary a safety evaluation report for each new AV or AV driving system that it introduces into interstate commerce. The safety evaluation report shall include a description of how the manufacturer is addressing key issues related to AVs, including system safety, data recording, cybersecurity, human-machine interface and crashworthiness, among other issues.

The Senate draft notes that a number of key issues remain unresolved among CST Committee members, including state preemption and whether the measure should address autonomous trucks.

Senate hearing on autonomous trucking

Autonomous trucks was the subject of a September 13 CST Committee hearing featuring testimony from a diverse group of stakeholders. The hearing underscored a divide between labor and industry interests on whether autonomous passenger vehicles and autonomous trucks should both be included in this bill and regulated on the same track. Witnesses including American Trucking Associations President and CEO Chris Spear, Navistar President and CEO Troy Clarke and National Safety Council President and CEO Deborah Hersman, who argued that automated trucks should be part of the bill since regulations could then address both automated trucks and passenger cars, which would provide regulatory certainty and clarity, which is important for the sector’s development.

Ken Hall, General Secretary Treasurer of the International Brotherhood of Teamsters, disagreed, testifying that “the issues facing autonomous commercial trucks are fundamentally different, and potentially more calamitous than those facing passenger cars, and warrant their own careful consideration.” Hall urged lawmakers against “taking a cookie cutter approach” in addressing risks related to automated trucks.

Accordingly, it remains to be seen whether trucking issues will be folded into currently moving legislation or remain on a separate course and timetable.

Senator Gary Peters (D-MI), who has been engaged in discussions with Committee Chairman John Thune (R-SD) on the draft bill, stated that he does not believe automated trucks should be included in this measure due to issues related to safety and potential driver displacement. During the hearing, Peters and other Democrats on the Committee raised concerns about autonomous trucks having a negative impact on truck driver jobs. Spears contended that the technology would assist, not displace, truckers. Notably, the House bill was limited to automated passenger vehicles and did not address automated trucks.

Speaking for the Committee, Senator Thune expressed a commitment to introducing and passing bipartisan AV legislation, but he gave no timetable and the Committee will likely first have to address the divide on whether trucks should be part of the measure.

House passes regulatory regime for autonomous vehicles, debate moves to Senate

Today the House of Representatives passed H.R. 3388, the Safely Ensuring Lives Future Development and Research In Vehicle Evolution (SELF Drive) Act. The bill, which was approved on a bipartisan voice vote, establishes a national framework for the use of self-driving vehicles, and defines the roles of the federal and state governments for self-driving cars, otherwise known as autonomous vehicles (AVs), including a requirement for the Department of Transportation (DOT) to develop sweeping regulations for AVs. Congressional action to balance innovation and safety on this fast emerging new technology now moves to the Senate this Fall.


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The three vehicles for Trump's enviro policy

President-elect Donald Trump’s administration is expected to break sharply with the environmental regulations of President Obama, particularly as it relates to climate change. During the campaign, Mr. Trump pledged to roll-back high-profile environmental regulations, such as the Clean Power Plan and the Waters of the US (WOTUS) rule. The timeline, pathway and difficulty for repealing these regulations will differ depending on the specific rule. For instance, Congress can block certain Obama environmental regulations through the Congressional Review Act (CRA), which provides lawmakers with a time period to review and pass disapproval resolutions for final rules. Other Obama-era environmental rules are beyond the scope of CRA review, but the incoming administration and Congress may employ administrative, legislative, litigation and regulatory strategies to repeal these regulations.

Broadly, the repeal efforts can be divided into three categories: (1) final rules that have been promulgated but are beyond the scope of the CRA; (2) final rules that have been promulgated and are subject to CRA disapproval; and (3) rules that have not been finalized and can be overturned or blocked through executive action.

Final rules not subject to the CRA

Two of the more controversial environmental regulations—the Clean Power Plan and the WOTUS rule—have been targeted for repeal by the President-elect and the Republican-led Congress, but such efforts could face a complicated and protracted path ahead. The Clean Power Plan and the WOTUS rule were both published in the Federal Register in 2015; therefore, the timespan for Congress to consider CRA disapproval resolutions for the Clean Power Plan and the WOTUS rule has expired, and the new administration and Congress will have to use other means to block these rules. Both rules are also subject to litigation, providing an added layer of complexity to efforts to roll-back these regulations.

As to the Clean Power Plan, the implementation of the rule is currently stayed due to a surprise order from the US Supreme Court in February. In September, the US Court of Appeals for the DC Circuit heard oral arguments in litigation over the Clean Power Plan, and the court could issue a decision on the case prior to Mr. Trump taking office. If the DC Circuit upheld the rule, the Trump administration could appeal the decision to the Supreme Court, where conservatives, assuming that Mr. Trump’s Supreme Court nominee gets confirmed relatively quickly, will maintain a 5-4 majority.  If the DC Circuit rejects the Clean Power Plan, the Trump administration would likely decline to appeal the decision to the Supreme Court, though the states and non-governmental organizations (NGOs) who intervened on behalf of EPA could appeal the decision.  If the DC Circuit does not issue a decision prior to Mr. Trump taking office, his administration could withdraw the government’s support for the Clean Power Plan, though, as noted above, states and NGOs would continue their advocacy for the rule.

While the Clean Power Plan is not subject to the CRA, Congress could pursue legislation to block the rule. Specifically, Congress could attempt to pass stand-alone legislation repealing EPA’s authority to implement CO2 standards for power plants, though passage in the Senate could be difficult given that 60 votes will likely be necessary to defeat a filibuster. Some Senate Democrats, such as Senator Joe Manchin (WV) and Senator Heidi Heitkamp (ND), would likely support this type of legislation, but this effort may fall short in securing enough Democratic support to clear a filibuster. Congressional Republicans may also use the appropriations process to block funding for the Clean Power Plan.

A Trump-led EPA may also attempt to withdraw the Clean Power Plan, but this effort would be time-consuming as the agency would have to initiate formal rulemaking to undo the regulation. Notably, in Motor Vehicles Manufacturers v. Association of the United States v. State Farm Mutual Automobile Insurance Company, the US Supreme Court unanimously struck down a Reagan-era rescission of a car safety standard. According to the US Supreme Court, the administration “failed to present an adequate basis and explanation for rescinding” the previous requirement. Thus, a Trump-led EPA will arguably have to offer “an adequate basis and explanation” for repealing the Clean Power Plan, and that “adequate basis and explanation” may be challenged by NGOs and states, potentially tying up the rule in litigation for years.

A Trump-led EPA could also use administrative measures to weaken the Clean Power Plan. For instance, EPA could defer enforcement of the CO2 standards for existing power plants. Alternatively, EPA could approve lenient state implementation plans.

The WOTUS rule, which attempted to clarify the scope of when Clean Water Act permits are necessary, is also subject to judicial stay. The US Court of Appeals for the Sixth Circuit is expected to hear oral arguments on the WOTUS rule in the spring of 2017. The Trump administration could request that the Sixth Circuit remand the rule, but the court would have to grant such a request and provide a justification for that decision. Similar to the Clean Power Plan, the Trump-led EPA could also initiate rulemaking to undo the WOTUS rule. In contrast to the Clean Power Plan, there may be some pressure from the agriculture, home construction, energy and other sectors for interim guidance from EPA on what circumstances Clean Water Act permits are required (One of the stated intents of the WOTUS rule was to provide clarity as to when Clean Water Act permits are necessary after two US Supreme Court decisions in the 2000s that added confusion as to what bodies of water fall under the statute’s jurisdiction).  Congress may also work to block WOTUS, either through stand-alone legislation (which may have difficulty garnering 60 votes) or through the appropriations process.

Final rules subject to the CRA

Some final EPA rules are subject to the CRA and could be overturned by Congress and the Trump administration. Congressional Research Service recently estimated that any final rule published in the Federal Register after May 30, 2016 could be struck down by a CRA disapproval resolution. Thus, Congress may be able to consider CRA disapproval resolutions on EPA’s Clean Air Act methane and volatile organic compound standards for new oil and gas sources, which were published in the Federal Register on June 3, and Clean Water Act effluent water guidelines for the unconventional oil and gas sector, which were published in the Federal Register on June 28.

Notably, the period for lawmakers to consider a CRA disapproval resolution resets with the new Congress. Specifically, the CRA states that a final rule is deemed to have been published on the 15th legislative day or the 15th session day after the next session of Congress begins. It remains to be seen if Congress will target EPA’s methane standards for new oil and gas sources and the effluent water guidelines for the unconventional oil and gas sector. Republican leaders will have a limited window to act on these CRA disapprovals, and they may opt to address other non-EPA rulemakings, such as the Bureau of Land Management’s final methane rules. Furthermore, CRA disapproval resolutions will compete with other legislative priorities, such as spending and health care reform bills, for floor time in the new Congress.

Non-finalized rules/initiatives

The easiest Obama-era environmental regulations for the next Trump administration to block are those rules that have not been finalized. For example, a Trump-led EPA will likely cease work on developing methane standards for existing oil and gas sources. In March 2016, the White House announced that EPA would begin the process of promulgating Clean Air Act methane standards for existing oil and gas sources. While the agency has finalized an Information Collection Request for the industry, EPA has yet to issue a draft Clean Air Act methane rule for existing sources. Thus, a Trump-led EPA maintains the ability to easily jettison efforts to develop such methane standards.