U.S. Department of Transportation Automated Vehicle Policy 3.0
The Department outlined its six principles of vehicle automation: (1) prioritizing safety, (2) remaining technology neutral, (3) modernizing regulations, (4) encouraging consistent regulatory and operating environment, (5) preparing proactively for automation, and (6) protecting and enhancing freedoms enjoyed by Americans. There is nothing fundamentally inconsistent among these principles, but, eventually, there may be pressure between a couple of the goals. For many people, prioritizing safety means removing the human from the active control of the vehicle because human driver error is responsible for causing approximately 95% of the crashes. The Department’s comments about protecting and enhancing freedom are, in large part, about protecting the “freedom for Americans to drive their own vehicles.” The Department “envision[s] an environment in which automated vehicles operate alongside conventional, manually-driven vehicles and other road users.” This position by the Department, although not prima facie inconsistent with prioritizing safety, may end up, in practice, inconsistent.
Driver and Operator
AV Policy 3.0 provides that the definition of “driver” and “operator” are not limited to a “human driver” and “human operator” and can include an automated system. This clarification is helpful in interpreting and applying the federal motor vehicle safety standards. In a chapter of a book, entitled “Imputing Driverhood: Applying a Reasonable Driver Standard to Accidents Caused by Autonomous Vehicles“, I had previously argued that the “driver” and “operator” of a vehicle could and should be interpreted to include the automation system. This interpretation will provide manufacturers with flexibility in complying with the Federal Motor Vehicle Safety Standards.
In 2017, the Department designated 10 proving ground locations to encourage testing and information sharing for automated vehicle technologies. According to Anthony Foxx, the then Secretary of Transportation, “[t]he designated proving grounds will collectively form a Community of Practice around safe testing and deployment. This group will openly share best practices for the safe conduct of testing and operations as they are developed, enabling the participants and the general public to learn at a faster rate and accelerating the pace of safe deployment.”
The Department has in AV Policy 3.0 abandoned its recognition of the proving ground locations. The Department noted that significant testing and research are occurring throughout the country, and the Department did not want to “pick winners and losers or to favor particular automated vehicle proving grounds over others.”
Call on States and Local Governments
So far, 29 states have enacted legislation relating to automated vehicles, and governors of 9 states have issued executive orders. These laws have not been consistent in all respects, and they also sit on a diverse body of law and case law relating to automobiles and human driving. Therefore, automated vehicle manufacturers and users will face inconsistent regulation. The Department called on states to seek consistency and guidance on consistency and rulemaking.
Additionally, road infrastructure, an important aspect of safe automated vehicle driving, is mostly controlled at the state and local level. In its 2017 Infrastructure Report Card, the American Society of Civil Engineers scored our roads with a D rating. The Department called on states and local governments to improve infrastructure.
The Department also offered a list of best practices for states and local governments, including, but not limited to, considering mobility as a service, supporting safe testing and operations on public roadways, building organizational capacity, identifying needs and providing for data sharing, and preparing for disruptions.
Motor Vehicle Safety Standards
The National Highway Traffic Safety Administration (NHTSA) regulates the safety of motor vehicles by promulgating motor vehicle safety standards. NHTSA created the safety standards on the assumption that a human would be driving and operating the vehicle, and, as many people have noted, automated vehicles are likely not in compliance with all of the motor vehicle safety standards. The Department stated that it will review the motor vehicle safety standards and consider revamping many of the safety standards for automated vehicles.
The Department noted that NHTSA has broad authority over the safety of motor vehicles and that states cannot enact laws that are inconsistent with the federal safety standards. The United States Code provides as follows:
When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.
49 U.S.C. § 301303(b). The roles of state and local governments have historically concerned regulating drivers and traffic. Given the shift in the control over driving in automated vehicles from the traditional driver to the computer system, there is a potential shift in control over the regulation of driving from the state and local governments to the federal government. The Department stated that it would carefully consider the roles of federal, state, and local governments as it develops its regulatory approach to vehicle automation.
The Department seeks public comments, and the public is invited to comment through December 3, 2018. This blog will track these comments and provide additional analysis of the comments.