United States: Congress Takes Steps To Revive Legislation Regulating Autonomous Vehicles – Foley & Lardner

On July 26, 2023, the House Subcommittee on Innovation, Data,
and Commerce hosted a legislative hearing entitled
“Self-Driving Vehicle Legislative Framework: Enhancing Safety,
Improving Lives and Mobility, and Beating
China,”1as an initial step toward reviving
legislation regulating automated vehicles (“AVs”)
originally introduced in 2017. The hearing centered on the
importance of enacting a national framework for AVs that

  • The safe operation and deployment of AVs;

  • The role of AV technology in breaking down transportation
    barriers for those with disabilities and other mobility

  • The economic importance of solidifying the U.S.’s role as a
    world leader in the automotive industry through the continued
    expansion of the design and manufacturing of AV technology in the

  • Data privacy and cybersecurity protections; and

  • The effects of AVs on the U.S. workforce.

The subcommittee received written and oral testimony from Mr.
Mark Riccobono, President of the National Federation of the Blind;
Mr. John Bozzella, President and CEO of the Alliance for Automotive
Innovation; Mr. Gary Shapiro, President and CEO of the Consumer
Technology Association; and Dr. Phillip Koopman, Ph.D., Associate
Professor, Carnegie Mellon University. The testimonies focused on
the themes of trust, safety, and mobility. The subcommittee
considered two discussion drafts:

  • H.R. __, the Safely Ensuring Lives Future Deployment and
    Research In Vehicle Evolution Act (SELF DRIVE Act); and

  • H.R. __, to amend title 49 United States Code, to provide for
    updated and new motor vehicle safety standards and regulations for
    highly automated vehicles and partially automated vehicles, and for

While any movement from Congress on the regulation of AVs is
notable, two key takeaways from the legislative hearing suggest
that Congress continues to grapple with the issues that held back
enacting prior versions of AV legislation.

Additional Data is Needed

The subcommittee members and witnesses generally recognized
automation’s potential to reduce death and injuries by
eliminating human errors and increasing mobility options for the
disabled. However, several participants raised concerns regarding
whether current AV technology can reduce death and injuries
now and suggested that understanding the potential safety
benefits of AVs would require additional data. Recognizing that the
National Highway Traffic Safety Administration (NHTSA) currently
collects data related to certain incidents involving advanced
driver assistance systems (ADAS) and AVs under Standing General Order 2021-01, concerns were
expressed whether that data is complete and accurately reflects the
operational safety of these systems. To further improve public
trust in and understanding of the safe operation of AVs, most of
the participants acknowledged that additional data is required. Of
course, the way to collect this data is through further testing and
deploying AVs on public roads.

The hearing discussed the importance of expanding NHTSA’s
exemption authority under 49 U.S.C. ยง 30113 for AVs from the
current 2,500 vehicles per year to 100,000 vehicles per year. The
discussion draft for the SELF-DRIVE ACT proposes such an increase
as a way to facilitate gathering additional information and data
about on-road AV usage and to solidify the U.S.’s role as a
leader of automotive innovation.

Federal, State, and Local Regulations Remain a Patchwork

The hearing also addressed the importance of clarifying the
roles of Federal, state, and local governments in regulating
emerging automotive technologies. Several subcommittee members and
witnesses suggested that the Federal government should have
exclusive responsibility for regulating AV accessibility, safety,
design, and manufacturing nationwide, reserving state and local
governments to maintain their traditional role of regulating
titling, registration, the rules of the road, and deployment of
ADAS technologies and AVs. Mr. Bozzella specifically noted the need
for NHTSA to modernize the Federal Motor Vehicle Safety Standards
(FMVSS) to account for new AV technology. Dr. Koopman recommended
that NHTSA move forward with the rulemaking it initiated in a
previously issued Advanced Notice of Proposed Rulemaking and
adopt current engineering industry standards and best practices for
AV technology.

The subcommittee also debated the role of Federal and state
governments in regulating liability surrounding AV usage. While the
automotive industry has viewed liability issues as outside the
scope of Federal legislation, some members and witnesses argued for
legislation that would limit manufacturer liability or ban
pre-dispute arbitration. Those that have followed past legislative
proposals around vehicle automation will recognize these issues,
which led prior proposals to stall. Whether these issues can be
untangled before the end of this Congress remains to be seen.

The Effects of Congressional Action

By holding this hearing, Congress has begun to take steps to
place AV technology back into the foreground and to revive its
prior bipartisan and bicameral efforts to regulate the safe
deployment of AV technology. Regardless of the fate of this round
of legislation, NHTSA will continue down its current path of
reviewing FMVSS safety standards by its rulemaking schedule. On
that path, NHTSA recently issued amendments to the FMVSS 200-series
(crashworthiness) safety standards and is currently analyzing the
FMVSS 100-series (crash avoidance) safety standards for potential
changes that can facilitate the safe deployment of AVs.
Furthermore, on July 12, 2023, NHTSA’s Acting Administrator,
Ann Carlson, discussed what the Agency referred to as the
“ADS-equipped Vehicle Safety, Transparency, and Evaluation
Program, or AV STEP.” While details of the program are still
forthcoming, NHTSA broadly explained that AV STEP would
“consider applications for deploying noncompliant ADS
vehicles, subject to review processes, terms, and conditions that
the agency would require to ensure public safety and
transparency.”2NHTSA intends AV STEP to facilitate
collecting the same types of data that committee members and
witnesses discussed would be critical to advancing ADAS
technologies and AVs.

Manufacturers should continue to monitor for additional
legislative actions and regulatory changes from NHTSA.
Manufacturers should also consider ways to present clear data and
information on how advanced technologies safely operate to help
shape any forthcoming regulation of AV technologies.


1 Hearing Announcement, Agenda, Memorandum, Recording,
and Written Witness Testimony available at: https://energycommerce.house.gov/events/innovation-data-and-commerce-subcommittee-hearing-1.

2 https://www.nhtsa.gov/speeches-presentations/automated-road-transportation-symposium-arts23-keynote-address

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