The BUILD America 250 Act: Creating a Federal Framework for Autonomous Commercial Vehicles

On May 22, the House Transportation and Infrastructure Committee approved the BUILD America 250 Act, a five-year surface transportation reauthorization bill intended to replace the Infrastructure Investment and Jobs Act (IIJA), which expires on September 30, 2026. In addition to authorizing hundreds of billions of dollars in highway funding and various other measures, the bill includes several provisions focusing on the emerging autonomous trucking industry. The legislation would establish federal safety requirements for commercial autonomous vehicles (AVs), would resolve the contentious issue of warning beacons on driverless trucks, and would potentially preempt at least some state and local regulation.

Overview of the AV Provisions

The AV sections of the BUILD America 250 Act focus on commercial motor vehicles, which federal law defines as those with a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, vehicles that carry large numbers of passengers, and vehicles that transport hazardous materials. The key AV provisions would cover commercial motor vehicles equipped with SAE Level 3, 4, or 5 autonomous capabilities. They would not extend to smaller vehicles, including most robotaxis or privately owned vehicles with autonomous features.

Safety Case Requirement

A central feature of the Act’s AV provisions is the concept of a safety case. The legislation would require the Department of Transportation to issue a “performance-based safety standard” for commercial motor vehicles equipped with automated driving systems (ADS). A manufacturer of autonomous commercial vehicles would be required to self-certify that the vehicle meets that standard.

That performance-based safety standard would not be an objective, specific, uniform requirement like those found in the Federal Motor Vehicle Safety Standards. Rather, the manufacturer would be required to establish a safety case, which the legislation defines as a structured argument that “provides claims, supported by arguments and evidence, that support the conclusion of the manufacturer that the design, construction, and performance of the ADS [automated driving system] or ADS-equipped commercial motor vehicle will provide an equivalent or greater level of safety as” a human-driven commercial motor vehicle. The safety case would have to include descriptions of key hardware and software in the ADS; the vehicle’s operational design domain; detailed engineering methodology; a cybersecurity plan; and various other information about systems, processes, and capabilities.

Narrow Federal Preemption

The BUILD America 250 Act would open the door — slightly — to express federal preemption of state and local regulations of commercial AVs. Rather than broadly preempting such regulation, the Act would adjust an existing provision of federal law, 49 U.S.C. § 31141, that already allows the Department of Transportation to determine that a state law or regulation on commercial motor vehicle safety is preempted if it is “additional to or more stringent than” a federal regulation, and the state requirement either (1) “has no safety benefit”; (2) “is incompatible with” federal regulation; or (3) “would cause an unreasonable burden on interstate commerce.” The BUILD America 250 Act would change the language of this provision to clarify that it applies to the regulation of autonomous commercial vehicles, as well as commercial vehicles more generally.

Section 31141 does not create a private right of action to challenge a state regulation in court as preempted. Rather, it allows the Federal Motor Carrier Safety Administration (acting by delegation from the Secretary) to affirmatively determine that a state rule should be preempted via an administrative proceeding.

Section 31141 has been infrequently invoked in the past. Notably, when the Ninth Circuit reviewed FMCSA’s most prominent past use of this provision — a 2018 determination preempting California’s meal-and-rest-break rules for commercial drivers — the court held that the statutory interpretation underlying the agency’s decision was entitled to Chevron deference. Chevron deference is now a thing of the past.

Trucking-Specific Operational Issues

The bill also addresses a matter of particular significance for autonomous trucking: warning devices for stopped vehicles. Existing federal motor carrier regulations require warning devices to be placed on the road whenever a truck is stopped on a highway. While compliance is straightforward when a human driver can exit the vehicle and deploy warning triangles, the requirement presents a challenge for autonomous trucks operating without an onboard driver. That challenge has, in turn, prompted extensive administrative proceedings before the FMCSA and related litigation.

The BUILD America 250 Act would address this issue by expressly allowing cab-mounted warning beacons to be used as warning devices for stopped commercial motor vehicles.

Manufacturer Responsibility

In a section that will undoubtedly be of interest to the tort bar, the legislation specifies that the manufacturer of an SAE Level 4 or 5 commercial motor vehicle must normally “assume and observe duties otherwise applicable to a human driver to the extent such duties relate to the real-time operation of such vehicle and the performance of the [dynamic driving task].” Simply put, the manufacturer will be treated as the driver of the vehicle for liability purposes. The Act also specifies that this requirement does not affect the applicability of strict liability under federal or state law, and does not affect the availability of existing common law defenses or doctrines.

Incident Reporting

For commercial AVs, the Act would largely codify the requirements in NHTSA’s Standing General Order 2021-01, which requires reporting for most crashes involving AVs. Commercial and other AVs already have reporting obligations under the SGO; this legislation would effectively make the requirements permanent for commercial vehicles.

Operator Requirements

The legislation provides that safety drivers, remote drivers, and remote assistants must be licensed to operate a commercial motor vehicle. It provides that safety drivers and certain remote drivers and assistants would be subject to federal hours-of-service limitations.

The Act also requires that remote drivers, remote assistants, and dispatchers be located in the United States. This requirement likely reflects concerns raised during a recent Senate hearing regarding the use of personnel based abroad to remotely support autonomous vehicle operations.

Transportation Rulemaking Committee

The Act requires the establishment of an 18-member committee to advise on ADS rulemaking, including representatives from industry, labor organizations, insurers, and traffic safety professionals.

Limitations on Driverless Operations

The legislation draws a red line against human-free operations for two categories of commercial vehicle: those primarily used to transport minors, such as school buses, and those carrying hazardous materials. Under the legislation, both categories must have a human operator physically present within the vehicle.

Workforce Provisions

The Act includes provisions that appear designed to address concerns that have complicated prior AV legislation and prompted opposition to AV deployment at the state and local level — namely, the effects of automated vehicles on professional drivers. The bill would support workforce training and related programs for professional drivers, mechanics, and other workers affected by new commercial motor vehicle technologies.

Accessibility

One provision of the BUILD America 250 Act that addresses autonomous vehicles beyond the commercial sector concerns accessibility. Specifically, the bill would require a study evaluating infrastructure modifications that could improve access to ride-hail vehicles equipped with automated driving systems for individuals with disabilities, including wheelchair users.

Takeaways

• For the growing autonomous trucking industry, the BUILD America 250 Act could encourage deployment across the country even if its preemptive effect is narrow. By self-certifying robust federal safety case requirements, manufacturers could give state and local authorities comfort that their vehicles and operations have robust safety capabilities.
• Historically, FMCSA has rarely invoked its authority to preempt state and local commercial vehicle rules under 49 U.S.C. § 31141. But an energetic federal regulator could, in the future, make greater efforts to exercise this authority against state and local commercial AV restrictions.
• The safety case requirement for commercial AVs would be a new form of federal motor vehicle safety regulation. Conventional federal motor vehicle safety standards specify objective performance requirements. The safety case approach provides flexibility for rapidly developing AV technology, and may also raise questions about how regulators will evaluate the adequacy of a manufacturer’s safety showing.
• The Act prohibits fully autonomous operations for school buses and hazardous waste transportation. Since the Act requires a manufacturer’s safety case to establish an “equivalent or greater level of safety as” a human-driven vehicle, it raises the question whether the exclusion of school buses and hazardous waste transport from autonomous operations might make those vehicles less safe than they otherwise could be.
• Because of the legislation’s focus on commercial motor vehicles and its limited preemptive language, state and local governments would continue to have considerable leeway to regulate and restrict the operation of AVs. Federal efforts toward broad uniformity of regulation and interstate operability would require additional legislative measures — such as the SELF DRIVE Act, which the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade considered earlier this year and which is still pending.
• The BUILD America 250 Act’s broad legislative package may improve the chances that some federal AV framework becomes law. Nonetheless, the AV sections of the bill, like the rest of the Act, have a long way to go before they become federal law. The Act still has to proceed through a full House vote, Senate consideration, reconciliation, and go to the President’s desk. Congressional leaders have indicated a goal of enacting the law by September 30, when the IIJA expires.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.