The Murky Preemption Provisions in the Senate's Self-Driving Vehicle Bill

WASHINGTON — Critics of a self-driving vehicle bill U.S. senators are set to discuss Wednesday remain uncomfortable with provisions they say could override state and local laws.

The Senate bill is part of an effort by Congress to develop a national framework for self-driving vehicle technology, with a goal of avoiding a patchwork of regulations for the vehicles between states. Similar legislation won approval in the U.S. House last month.

On Wednesday, the Senate bill is scheduled for a mark-up in the Commerce Committee.

“I'm very concerned that this legislation would preempt states from seeking to protect their consumers,” Sen. Richard Blumenthal, a Connecticut Democrat who sits on the committee, said during a call with reporters on Tuesday. “I hope that this bill will be amended.”

Sen. John Thune of South Dakota, the Republican chair of the Commerce Committee, and Sen. Gary Peters, a Michigan Democrat, spearheaded the legislation, known as the American Vision for Safer Transportation through Advancement of Revolutionary Technologies, or AV START, Act.

Industry groups, including a coalition that represents automakers Ford Motor Co. and Volvo Cars and app-based ride-booking companies Uber and Lyft, have lobbied in recent months to influence legislative efforts in Congress surrounding automated vehicles.

Meanwhile, organizations representing the trucking industry and truck manufacturers have pushed for the bill to include big rigs. The current draft of the legislation would exclude most commercial trucks and instead apply only to vehicles that weigh 10,000 pounds or less.

One person tracking the bill closely said Tuesday that Sen. Jim Inhofe, an Oklahoma Republican, was planning to propose an amendment to include trucks. What level of support it might get is uncertain.

'Gray Area'

A preliminary “discussion draft” of the Senate bill, unveiled last month, stirred questions about whether sections of the legislation would preempt the ability of state and local governments to enforce traffic laws for self-driving vehicles. Democratic and Republican Senate staffers insisted that this was not the aim of the bill.

The preemption language from the earlier draft does not appear in the version of the legislation slated to be marked up. And the legislation’s preemption provisions now mirror those in the bill the House passed.

Even so, Russ Brooks, director of smart cities for the advocacy group Transportation for America, said it is still unclear, based on the current language in the Senate legislation, what limits the bill would impose on city and state laws and regulations.

Two terms, he said, are particularly problematic: “performance” and “unreasonable restriction.”

No state or local government the, legislation says, can maintain or enforce laws or regulations regarding “the design, construction, or performance of highly automated vehicles” and related technology, unless the laws or regulations match standards established in the bill.

A later passage says the legislation is not intended to prohibit states and localities from maintaining and enforcing laws and regulations related to areas such as vehicle registration, licensing, law enforcement, safety and emissions inspections, or crash investigations.

“Unless,” the bill continues, “the law or regulation is an unreasonable restriction on the design, construction, or performance” of highly automated vehicle technology.

Brooks explained that “performance,” in the context of auto regulations, has typically been a term applied to mechanical and physical components—brakes, or bumpers, for instance.

“The problem that comes in,” he said, “is that the driver is now software.”

How might this create difficulties for a city or state?

Brooks offered an example of an automated vehicle that can’t recognize certain road signs.

A state or local government might pass a law that says vehicles must recognize the signs, and other infrastructure, before being allowed to operate on public roadways. Legal questions could then arise over whether the requirement amounts to regulating “performance.”

Similar questions might come up, he said, if jurisdictions try to impose restrictions on automated vehicles operating in school zones.

“We’re not sure that that isn’t an unreasonable restriction on performance,” Brooks said.

“We would be comfortable if they got rid of the word ‘performance’ and we’d be really comfortable if they got rid of the words ‘performance’ and ‘unreasonable restriction,’” he added. “The two of them together, it just creates way too big of a gray area.”

Safety Concerns

Blumenthal said he wants to ensure that state laws for self-driving vehicles are upheld when they “impose a higher standard of accountability and responsibility.”

The senator also said he was prepared to ask for changes to the Senate legislation to impose tougher safety standards.

Some consumer and highway safety advocates describe the standards in the bill as not stringent enough.

“Unfortunately, the public will be the crash test dummies in this dangerous experiment,” Joan Claybrook said as she discussed the legislation on Tuesday. Claybrook was previously an administrator of the National Highway Traffic Safety Administration, beginning in the late 1970s when then-President Jimmy Carter was in office.

She argued that the bill gives automotive and technology companies too much power when it comes to the deployment and development of unproven vehicles.

One of her recommendations is that the legislation should call for a database featuring safety information that consumers and others can search using vehicle identification numbers, or VINs.

“This bill represents one of the biggest assaults on the 1966 federal Vehicle Safety Act that's ever occurred,” Claybrook added.

William Wallace is a policy analyst with Consumers Union, a division of Consumer Reports.

"Overall the bill falls far short of what consumers need," he said.

"The bill could allow millions of cars on the market that are exempt from federal safety standards and don't adequately protect consumers in a crash," Wallace added. "It would undermine critical state and local responsibilities related to highway safety."