Autonomous Commercial Vehicles Closer to Hitting the Road After New Developments

HIGHLIGHTS:

• The release of new federal guidance on autonomous vehicles, as well as the recent consideration of federal autonomous vehicle legislation in Congress, increases the likelihood that the introduction of autonomous commercial vehicles (ACVs), including commercial trucks, on our nation's highways is drawing closer to fruition.
• However, the SELF DRIVE Act as passed by the U.S. House of Representatives creates a new regulatory pathway for autonomous passenger vehicles only. The Teamsters, the Owner-Operator Independent Drivers Association (OOIDA) and other labor unions and groups have publicly opposed the inclusion of ACVs in the draft legislation due to the potential impact on the more than 3 million U.S. truck drivers.
• Although many powerful groups oppose the inclusion of ACVs in any federal legislation or regulations enabling self-driving vehicles, proponents of ACVs – including safety organizations, truck manufacturers, the Alliance of Automobile Manufacturers and other large companies – also have considerable clout. Proponents tout safety and also argue that including ACVs will benefit the economy and lead to the creation of new jobs.

Autonomous passenger vehicles are coming, that is clear. The question is whether autonomous commercial trucks will join them or follow later. Earlier, we reported on the likelihood that our cars will eventually be sharing the road with autonomous trucks. (See Holland & Knight's alert, "Buckle Up: Autonomous Commercial Vehicles are Coming to a Road Near You," July 24, 2017.) Since then, much has happened, including the release of new federal guidance on autonomous vehicles and debate by Congress of federal autonomous vehicle legislation.

Recent Developments

According to the Federal Motor Carrier Safety Administration (FMCSA), "highly automated vehicles (HAVs) are those in which the vehicle can take full control of the driving tasks in at least some circumstances. HAVs hold enormous potential benefits for safety, mobility, and sustainability." The FMCSA has expressed support for the development and use of autonomous cars and commercial vehicles, and Congress has recently taken up the issue by considering legislation that would 1) grant exemptions permitting automakers to deploy a significant number of self-driving vehicles under an exemption to existing safety standards, 2) continue to pre-empt state and local laws related to the design, construction or performance of HAVs, 3) require manufacturers to file safety assessments with the National Highway Traffic Safety Administration (NHTSA), and 4) direct NHTSA to issue regulations to accommodate the future development and deployment of HAVs.

The U.S. House of Representatives, on Sept. 6, 2017, unanimously passed bipartisan HAV legislation, known as the SELF DRIVE Act (Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act), through the House Energy and Commerce Committee and the full House floor. That legislation, which has not yet been adopted by the Senate, would amend the definitions contained in Section 30102 of Title 49, United States Code, to include definitions for "highly automated vehicle," "automated driving systems," "dynamic driving task" and other definitions relevant to the development and use of autonomous vehicles.

However, the SELF DRIVE Act as passed by the House covers only passenger vehicles. The Teamsters, the Owner-Operator Independent Drivers Association (OOIDA) and other labor unions and groups have publicly opposed the inclusion of autonomous commercial trucks in the draft legislation due to the potential impact this technology might have on the more than 3 million truck drivers in the U.S. Specifically, the House's SELF DRIVE Act specifically excludes "commercial motor vehicles" from the definition of "highly automated vehicles." In addition to the concerns of the labor unions, the House Committee on Energy and Commerce, which wrote the bill, does not have jurisdiction over FMCSA, so the House avoided the issue to avoid a jurisdictional dispute that might slow or kill the bill. As a consequence, autonomous commercial trucks exceeding 10,000 pounds, as well as vehicles carrying more than 10 occupants, are not authorized by the House legislation.

On the other hand, Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, has indicated that he prefers to include commercial vehicles in the Senate bill. Although earlier versions of the Senate autonomous vehicle bill included autonomous passenger and commercial vehicles, the language on commercial vehicles of more than 10,000 pounds was dropped from the bill while negotiations continue. On Sept. 13, 2017, the Senate Commerce Committee publicly debated "the benefits of automated truck safety technology as well as the potential impacts on jobs and the economy" in a hearing that included law enforcement, trucking companies, safety groups and labor unions. It has been reported that the Senate Commerce Committee will consider its autonomous vehicle legislation on Oct. 4, 2017.

Potential Impact

By way of background, approximately 250 million vehicles are registered in the U.S., 10 million of which are freight vehicles (two-plus axles, six-plus tires). And approximately 3.5 million persons operate commercial vehicles on a daily basis, not including millions more who operate smaller commercial vehicles such as local delivery and parcel trucks. On top of those numbers, the larger trucking economy – including cargo brokers, truck manufacturers, truck stop employees, etc. – accounts for an additional 4 million jobs, according to the American Trucking Associations (ATA).

It seems axiomatic that implementation of autonomous commercial vehicles (ACVs) will impact employment in the industry. However, the potential loss of jobs due to ACVs is a particularly complex issue because the shortage of truck drivers is a chronic – and worsening – problem facing the transportation industry. According to the ATA, although truck tonnage has increased substantially over the past decade, the number of people entering the job market to drive trucks is decreasing. Thus, the ATA has estimated that there are 48,000 open jobs in the transportation industry and that there could be a shortage of 174,500 drivers by 2024. In the near-term, some believe that autonomous features will improve the safety of operating commercial vehicles without replacing drivers and may attract younger candidates to fill the job shortage. However, the shortage pales in comparison to the number of commercial trucking jobs that could eventually be at risk if fully autonomous ACVs displace commercial drivers. This potential loss of jobs is a major reason why the inclusion of commercial vehicles in the self-driving vehicle legislation is so hotly debated.

One of the senators leading the Commerce Committee's bipartisan effort to pass autonomous vehicle legislation, Sen. Gary Peters (D-Mich.), has adamantly opposed the inclusion of trucks in the draft bill due to concerns about worker displacement. In addition, truck drivers and groups that represent their interests have been vocal in expressing concern about the potential loss of jobs and have opposed any legislation that would authorize autonomous commercial vehicles. Previously, Secretary of Transportation Elaine Chao also stated that she was "very concerned" about the impact of self-driving vehicles on U.S. jobs.

Safety Benefits and Other Considerations

However, the U.S. Department of Transportation (DOT) has embraced the safety benefits that autonomous vehicles can provide, noting that "Ninety-four percent of serious motor vehicle crashes in the U.S. are due to dangerous choices or errors people make on the road." Thus, on Sept. 12, 2017, the NHTSA released voluntary guidance with respect to the development and regulation of HAVs. The new 36-page document, "Automated Driving Systems: A Vision for Safety 2.0" replaces the September 2016 NHTSA guidance issued by the Obama Administration. The updated document offers voluntary guidance to car manufacturers and emphasizes the primary regulatory role of the federal government.

The NHTSA's voluntary guidance includes all vehicles under the agency's jurisdiction: both passenger vehicles and commercial trucks. However, the guidance does not cover the use of ACVs, motor carrier operations or commercial truck drivers, which are under the jurisdiction of the FMCSA. Currently, under applicable Federal Motor Carrier Safety Regulations (FMCSRs), a trained commercial driver must be behind the wheel at all times, regardless of any automated driving technologies, unless a waiver or exemption has been granted by the FMCSA.

Although many powerful groups are actively opposing the inclusion of ACVs in any federal legislation or regulations enabling self-driving vehicles, proponents of ACVs – including truck manufacturers, the Alliance of Automobile Manufacturers and other large companies – likewise have considerable clout. Proponents tout safety and also argue that including commercial vehicles will benefit the economy and inevitably lead to the creation of new positions and jobs. In addition, proponents also argue that there is the potential for ACVs and "platooning" (i.e., the operation of ACVs in a convoy) to reduce road congestion and save fuel. Also, there is expected to be an ongoing need for human involvement and intervention, such as to handle refueling, tire blowouts and breakdowns, assist with unloading and interact with customers.

Ultimately, safety considerations will likely bring the issue of ACVs to the forefront. In 2012, there were 300,000 collisions involving trucks, of which nearly 3,500 involved a fatality and 73,000 involved injuries. Although many of those accidents were not the fault of truck drivers, when fully developed, autonomous technologies such as improved sensors, automated braking, blind-spot warnings, as well as other innovations in trucks and passenger vehicles, are expected to override driver error and reduce the number and severity of accidents involving trucks. Thus, over time, ACVs are expected to be safer and lead to fewer accidents and fatalities. Indeed, prominent highway safety groups, such as the National Safety Council and the Advocates for Highway and Auto Safety, have argued for ACV inclusion in federal legislation, noting that, absent specific statutory authority to regulate, ACV development may be governed only by voluntary guidance.

Although politics are in play, and many technical and other issues remain to be solved before fully autonomous commercial vehicles will be operating on our roads without drivers, sharing the road with autonomous vehicles – including commercial trucks – is inevitable. As we previously recommended, prepare to buckle up.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.