Motivated by the unprecedented spike in automotive fatalities in 2015, mostly caused by human error, the United States Department of Transportation (DOT), through the National Highway Traffic Safety Administration (NHTSA), has embraced self-driving cars as a means to significantly reduce motor vehicle crashes. In so doing, the DOT stands behind developing a regulatory framework which encourages the safe development, testing and deployment of automated vehicles. Because current legislation and policies have not caught up with technology, Congress and the DOT are hoping to create legislation which balances technology and car manufacturers’ freedom to test, evaluate and deploy driverless cars with ascertaining the best ways to operate and govern these vehicles on U.S. roadways.
As such, the DOT released its voluntary guidance on automated driving systems in September 2016, known as the “Federal Automated Vehicle Policy” and updated it in September 2017. The new guidance, titled “Automated Driving Systems: A Vision for Safety,” revised the earlier guidance based on public comments from, among others, the automotive industry, the technology industry, private citizens and special interest groups. The NHTSA guidance provides advice to would-be developers of automated driving systems in a number of subject areas including overall safety and testing methodologies, cybersecurity, privacy, post-crash behavior and consumer education and training.
In the hopes of maintaining a uniform national system for automated driving systems, NHTSA also addresses best practices for state legislatures. These practices for aiding in the development and integration of autonomous vehicles maintain the current division of responsibility between the state and federal governments; specifically, the DOT retains responsibility for regulating motor vehicle safety including setting and enforcing Federal Motor Vehicle Safety Standards (FMVSS), while the states govern vehicle licensing, registration, traffic enforcement, inspection and insurance.
Following NHTSA’s guidance, Congress has taken steps to adopt safety and performance standards for autonomous vehicles. Both houses of Congress have worked this year toward establishing relevant safety standards. On Sept. 6, 2017, the United States House of Representatives passed House Bill HR 3388 entitled, “Safely Ensuring Lives Future Development and Research in Vehicle Evolution or SELF-DRIVE.” This is the first piece of legislation for regulating autonomous vehicles. The Senate is presently considering its own similar bipartisan bill, “American Vision for Safer Transportation Through Advancement of Revolutionary Technologies Act” or “AV START Act,” which was unanimously approved by the Senate Committee on Commerce, Science and Transportation in October 2017. The House and Senate Bills are largely similar, non-partisan and non-controversial, setting the stage for adoption of a federal regulatory scheme for autonomous vehicles in 2018.
Following NHTSA’s guidance, both bills provide NHTSA exclusive control over regulating the design, construction and performance of autonomous vehicles, as is currently the case. Similarly, under the proposed federal regime, state laws contrary to those promulgated by the DOT are pre-empted. States continue to have authority over vehicle registration, licensure, insurance, traffic laws and crash investigations.
The Senate bill seeks expedited resolution of conflicts between current FMVSS and the adoption of autonomous vehicles. The goal is to avoid unintended limitations to driverless cars, by current requirements created for vehicles with drivers, i.e. steering wheels and pedals, which are unnecessary in the autonomous driving world. The House bill’s analogous provision is not as fast-moving as the Senate bill and anticipates updated regulations within 18 months of enactment.
Significantly, both bills expand NHTSA’s authority to exempt vehicles from having to comply with federal motor vehicle safety standards (currently 2,500), to allow for the testing and improvement of autonomous vehicles. The House bill is a bit more generous in granting exemptions, allowing 25,000 in year one, 50,000 in year two and 100,000 in years three and four. The Senate bill provides for 15,000 exemptions in year one, 40,000 in year two and 80,000 in year three, with an option to renew and expand exemptions. The idea is that when regulations for autonomous vehicles are finalized and implemented there, will no longer be a need for the extensive exemptions from regulatory compliance.
Another significant feature of the Senate proposal is the requirement that autonomous vehicle manufacturers submit safety evaluation reports at least 90 days before offering an autonomous vehicle for sale with annual updates until an FMVSS covering that topic is implemented. The reports require detailed information on nine separate categories of information, including system safety, human machine interface (advising a human driver if any system is not properly functioning), post-crash behavior (if sensors are damaged), sensor and object detection modes, and the expected operational design for autonomous driving (i.e. ability to transition to a minimal risk condition in case of malfunction). Under the Senate plan these reports will be made public except for trade secret information, a feature unlikely to be met warmly by the manufacturing community. By contrast, the House bill requires the DOT to initiate rulemaking proceedings, within 18 months of the enactment of the bill. Until such time manufacturers of autonomous vehicles are required to submit safety assessment letters in accord with NHTSA’s guidance.
Both bills include provisions addressing cybersecurity, privacy and consumer education. Regulating these areas in a consistent manner is vital to maintaining the safety and security of the motoring public. As to cybersecurity, autonomous vehicle manufacturers will be required to adopt plans to identify reasonably foreseeable vulnerabilities and the means to mitigate such risks; as, for example, ways to keep malicious commands from remotely taking over self-driving cars.
Given the realistic concerns over consumer privacy with today’s technology, issues related to the more technologically advanced self-driving cars is of even greater import. Accordingly, the regulations would require implementation of plans to describe the information collected, how the information would be used and steps taken to prevent unauthorized disclosure of such information. Public education regarding the capabilities and limitations of autonomous vehicles is also instrumental to an effective regulatory regime.
Although the House bill encourages access to autonomous vehicles for the elderly and disabled, the Senate bill specifically prohibits states from discriminating against people with disabilities by enacting laws that would, for example, require a licensed driver to be in the car at all times.
Conspicuously absent from the Congressional bills is the allowance of self-driving trucks. Autonomous trucking has become a contentious issue with significant union opposition. Rather than tackle this issue, Congress has seemingly elected to take the less controversial approach and limit legislation to autonomous cars. After passage of such legislation the groundwork for self-driving trucks will have been laid.
There is much to be done, but this legislation is a step towards allowing manufacturers to continue to test, design and improve autonomous vehicles so as to realize the goal of safe, reliable and secure self-driving vehicles in the near future.
