The first federal bill that deals with automated cars recentlycleared the United States House of Representatives Energy andCommerce Committee, and is now pending action before the fullHouse.

The "Safely Ensuring Lives Future Deploymentand Research In Vehicle Evolution" (SELF DRIVE) Act aims tofacilitate the testing and distribution of highly automatedvehicles (HAVs).

The bill (H.R. 3388) was originally introduced to the HouseEnergy and Commerce Committee as the "Designating Each Car'sAutomation Level Act" (DECAL) Act. But during markup on July 25,2017, it was replaced with the SELF DRIVE Act. However, it stillretains its designation as H.R. 3388.

Related: Insuring autonomous vehicles

The SELF DRIVE Act sailed through the committee with a 54-0 votein favor of its approval. While the Act clearly has strongbipartisan support, it still needs to pass through both the fullHouse and Senate, and be signed by the President, before it becomeslaw.

Three key proposals contained in the SELF DRIVE Act shouldfacilitate the development and adoption of HAVs:

— First, it proposes to exempt HAVsfrom certain Federal Motor Vehicle Safety Standards (FMVSS);

— Second, it proposes to preemptcertain state laws; and

— Third, it proposes to require HAVmanufacturers develop a written cybersecurity plan for HAVs.

Related: Are we safe drivers? Apparentlynot…

Vehicle safety redefined

In general, passenger vehicles are required to adhere tothe Federal Motor Vehicle Safety Standards (FMVSS).However, HAVs appear to render a number of these safety standardsobsolete or completely inapplicable.

Related: How self-driving cars will change the rules of theroad

For example, Standard No. 111 dictates the performance andlocation of the rearview mirror. But rearview mirrors areobviously not necessary for HAVs that rely on rear-facing sensorsinstead of in-cab mirrors. Consider also Standard No. 207, whichprovides requirements for seats, their attachment assemblies andtheir installation.

When HAVs no longer need a human driver, the driver's seatrequired by Standard No. 207 will also beunnecessary. Automakers such as Mercedes-Benz are alreadydesigning cabins for HAVs with unique seatingpositions that lend themselves to a moreconversational in-cab environment.

Several other examples of FMVSS do not make sense in the contextof HAVs. Continuing to mandate compliance with all of them wouldcreate an additional, unnecessary expense for Original EquipmentManufacturers (OEMs). Superfluous equipment would take up valuablereal estate in the vehicle that could be used for additionalcameras, sensors and other specialized equipment thatHAVs do need to operate safely.

To address this problem, the SELF DRIVE Act proposes to increasethe number of FMVSS exemptions that the Secretary of Transportationcan grant to HAV manufacturers over time. In year one (12-monthperiod), the bill would allow 25,000 exemptions per manufacturer.In year two, that figure would increase to 50,000 exemptions, andin years three and beyond, it would increase to 100,000 exemptions.In addition to increasing the number of exemptions allowed for HAVmanufacturers, the Secretary of Transportation could grantexemptions for an extended period of up to five years.

Because HAVs will rely entirely on computer systems tonavigate, adequate cybersecurity measures will be necessary forthem perform safely. (Photo: iStock)

Automakers want direction

The regulation of HAVs currently consists of only a patchwork ofstate laws, which means HAV manufacturers must navigate a shiftinglandscape as individual states create new requirements. This stateof affairs is increasingly untenable as HAVs make their way to themarket and, more and more, travel across state lines.

To ameliorate this problem, the SELF DRIVE Act would preemptstates from creating laws and regulationsdictating design, construction or performance of HAVs. However, itwould permit states to continue regulating vehicle registration,licensing, insurance, driver education and training, and otherrelated areas that are not specific to HAVs. Also, it is importantto note that the Act "does not exempt a person  fromliability at common law."

However, the SELF DRIVE Act's distinction between "design,construction or performance" regulations and other kinds ofregulation may lead to confusion. For example, New York Staterequires its drivers to keep at least one hand on the steeringwheel at all times. Yet, as discussed above, OEMs are designingseating that will allow front-seat occupants to rotate and facerear-seat occupants and may even elect remove the steering wheelaltogether. Arguably, then, New York's "one hand on the wheel" lawconstrains HAV design and construction and would be preempted bythe SELF DRIVE Act. On the other hand, the New York law dictateswhat a driver must do, and hence could fall under the"driving education and training" category, which states wouldremain free to regulate.

Consider also Michigan's SAVE Act, which permits OEMsto test automated vehicles on state roadways, but does not permitride sharing companies like Uber and Lyft to do the same. This doesnot appear to be a limitation on the design and construction ofHAVs as such, but it nonetheless hinders the development anddeployment of HAVs.

Related: Emergingrisks in auto technology

Cybersecurity concerns

Because HAVs will rely entirely on computer systems tonavigate, adequate cybersecurity measures will be necessary forthem perform safely and gain the confidence of passengers. The SELFDRIVE Act appears to promote HAV cybersecurity without taking anoverly prescriptive approach on how OEMs must accomplishcybersecurity objectives.

Specifically, the current version of the SELF DRIVE Act wouldrequire automakers to:

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      • Develop a process for identifying, assessing and mitigating "reasonably foreseeablevulnerabilities" from cyber attacks;
      • Take preventive and corrective action to mitigate againstvulnerabilities in a highly automated vehicle or a vehicle thatperforms partial driving automation, including incident responseplans, intrusion detection and prevention systems, and updates tothose process based on changed circumstances;
      • Identify an officer or other individual as the "point ofcontact with responsibility for the management of cybersecurity";and
      • Develop a process for employee training and supervision duringthe implementation and maintenance of the installed self-drivingsystems.

Related: No business is totally safe from cyberattacks

Looking ahead

The SELF DRIVE Act represents a significant first step forfederal regulation of HAVs, and would provide welcome relief forOEMs that are currently faced with irrelevant or inconstantrequirements under the FMVSS and state law. Further, it encouragesa forward-thinking approach to cybersecurity, which will beessential to both HAV safety and consumer trust.

Michael Nelson is a partner at EvershedsSutherland (US) in the New York office. TrevorSatnick is a data privacy and security consultant there, andTony Ficarrotta is an associate. EvershedsSutherland will continue to monitor the SELF DRIVE Act closely asit makes its way through Congress.

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