Ever since self-driving vehicles leapt from the pages of science fiction and into the realm of reality, transportation experts and industry officials have warned that government regulation might prevent autonomous technology from reaching the road. Even when their intentions have been to encourage the adoption of autonomous vehicles, those concerns have only grown more pronounced. Thirty-nine states and the District of Columbia have proposed or enacted their own laws governing autonomous testing and deployment, resulting in a tangle of state-by-state laws and executive orders that could hinder deployment of the new technologies.
A federal regulatory structure—one set of rules to apply nationwide—could help unravel this burgeoning patchwork of laws, but so far, there’s been none forthcoming. A new report from the Eno Center for Transportation, a nonpartisan think tank, argues that it’s time for Congress to enact legislation that expands the federal government’s role in preparing public roads for self-driving cars.
“Every state legislator, after riding in a Waymo car or Uber car, they have big ideas when they come back to the state legislature in January, and we have a flurry of proposed bills,” said Greg Rogers, co-author of the report. “But one of the problems from all this excitement is we need to have a more solid foundation of how autonomous vehicles will impact public policy, and one of the recurring issues is that definitions keep changing.”
Sen. Bill Nelson (D-Fla.) prepares to test-drive the new Tesla Model S 90D during a 2016 exhibition of self-driving cars in Washington, D.C.
The Department of Transportation revealed a much anticipated Federal Automated Vehicles Policy last September, which provided some needed guideposts for the industry. But the policy is ultimately voluntary guidance, which the autonomous-vehicle industry is free to sidestep.
In February, Sen. Gary Peters (D-Mich.) and Sen. John Thune (R-S.D.) announced their intention to pursue bipartisan legislation to address autonomous vehicles and advanced transportation, seeking ways to keep federal regulations flexible enough for innovators while maintaining road-safety standards.
“Left on its own, the slow pace of regulation could become a significant obstacle to the development of new and safer vehicle technology,” the two wrote in a joint statement. They intend to put forth legislation at some point in 2017.
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“We need to have a strong understanding of what the capabilities are when we put these [vehicles] on the road.”
– Greg Rogers, Eno Center for Transportation
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The Eno report, Beyond Speculation: Automated Vehicles and Public Policy, calls on Congress to give the National Highway Traffic Safety Administration (NHTSA) the authority to issue systems certifications to the technology in self-driving vehicles. Certifications should be correlated to the levels of automation written by SAE International and adopted by NHTSA earlier this year, the report asserts.
With such certifications, the federal government could set appropriate standards of licensing, liability, and insurance for both human drivers and self-driving systems at each level of automation. In the event of a collision, the standards could correspond directly to the liable party that is ultimately in control, according to the report.
Moving beyond the physical body of a vehicle and into certifying capabilities would be an expansion of regulatory responsibility; traditionally, the NHTSA has set design and construction standards through the Federal Motor Vehicle Safety Standards (FMVSS) and has been the conductor of enforcement activity.
A Paradigm Shift for NHTSA
“NHTSA is going to experience a paradigm shift in regulation, to performance-based standards, in how we look at autonomous-vehicle safety,” Rogers said. “That’s why we’re looking at having NHTSA certify levels of automation rather than prescriptive rules like ‘This vehicle turns right at the stop sign properly.’ It’s about when the vehicle is responsible and not responsible.”
That’s easy enough to discern at either end of the autonomous spectrum. At Level 1, for example, an automated system may sometimes assist in driving, but humans remain responsible at all times. At the other end, Level 5 describes operations in which a self-driving system is fully responsible for all driving under all conditions.
It’s in the middle where it gets muddy. At Level 3, an automated system can conduct entire parts of the driving task and monitor the environment, but humans are required to keep tabs on the systems and retake control if necessary. It takes an average motorist 17 seconds to refocus on driving after he or she has focused attention away from the road, according to an earlier NHTSA study, and Eno’s report suggests that the agency take a role in determining a timeframe that assures the vehicles remain safe during exchanges of control.
Because of complications involving that handoff, which include concerns about the human/machine interface and liability, manufacturers might be inclined to market some driver-assistance and self-driving features at levels lower than they actually operate, essentially pinning responsibility squarely on humans. But that’s equally problematic.
“This is one of the reasons we’re suggesting NHTSA do the defined designations,” Rogers said. “It certainly is easier from a marketing perspective to say, ‘This is Level 2, and the person should have had their eyes on the road,’ but I think we need to have a strong understanding of what the capabilities are when we put these [vehicles] on the road. It provides some certainty into what it is and guards against false advertising.”
Beyond certification, the Eno report urges Congress to direct NHTSA to address further aspects of the new automotive environment, including the need for stronger privacy protections, guidelines for data ownership, and the looming issue of workforce disruption should automated driving technologies displace the jobs of many of the nation’s 2-million-plus truckers (not to mention all those Uber drivers who could find themselves replaced by robots).
On issues both technical and broad, the report’s overriding push is that the federal government must take a more active role in shaping the new rules of the road.
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