The past few days have been a resounding success for the future of autonomous vehicles.
The recent passage of the SELF DRIVE Act heralded a promising sign of bipartisan support for this life-saving technology. Shortly afterwards, the Senate Commerce Committee released text for its AV START Act — further building on the positive provisions of SELF DRIVE. However, the Department of Transportation (DOT) may have just outdone both chambers of Congress.
In new federal autonomous vehicle guidelines released Tuesday, dubbed A Vision for Safety 2.0, the DOT updated and replaced prior guidelines released in September 2016. In comments submitted to the National Highway Traffic Safety Administration (NHTSA) at the time, the Niskanen Center expressed support for the Agency’s proposed Federal Automated Vehicle Policy Guidelines. That support, however, was conditioned on a number of important changes to the Agency’s purported approach, including pulling back on proposed new pre-market and post-surveillance authorities.
This new guidance document abstains from supporting any of those new authorities, and explicitly — and repeatedly — stresses that its suggestions are voluntary:
This Guidance is entirely voluntary, with no compliance requirement or enforcement mechanism. The sole purpose of this Guidance is to support the industry as it develops best practices in the design, development, testing, and deployment of automated vehicle technologies. (2)
The bulk of the policy document focuses on three major areas: (1) 12 safety design elements that the DOT suggests industry prioritize, (2) a voluntary safety self-assessment, (3) and best practices for state legislatures and officials.
Safety Design Elements
Throughout the 12 safety priorities, the DOT encourages manufacturers and developers to have “documented processes” that can validate and verify design decisions, safety risks, and test outcomes. Above all, assessment data “should be traceable and transparent.”
The guidance also suggests that these processes be applied to assessments of a vehicle’s sense-and-avoid technologies, behavioral competencies under real-world roadway conditions, crash=avoidance capabilities, human-machine interface designs, and situations in which control of the vehicle returns to the occupant in case of a malfunction.
The document also outlines general best practices for cybersecurity considerations, and points to a number of particular standards, such as the NIST framework, as well as information-sharing consortiums, including Auto-ISAC, as a means of facilitating “collaborative learning” that can help “prevent industry members from experiencing the same cyber vulnerabilities.” It goes on to sketch out best practices relating to post-crash data handling, event data recording, and consumer- education campaigns.
Voluntary Safety Self-Assessment
The voluntary safety self-assessment specifically points to “industry best practices” as a means of demonstrating how individual firms are committed to: (1) considering the details of autonomous vehicle safety, (2) “communicating and collaborating with DOT,” (3) encouraging industry self-regulation and the development of “safety norms,” and (4) “transparent testing and deployment” of autonomous vehicles to build public trust, confidence, and acceptance. Additionally, the guidance makes it explicitly clear that:
Entities are not required to submit a Voluntary Safety Self-Assessment, nor is there any mechanism to compel entities to do so. While these assessments are encouraged prior to testing and deployment, NHTSA does not require that entities provide submissions nor are they required to delay testing or deployment. Assessments are not subject to Federal approval. (16)
This is a significant and welcome change from the previous draft policy guidance, which laid out an extensive approach for conducting a 15-point safety checklist that would be reported, at regular intervals, to NHTSA.
Best Practices for States
Of notable importance is how the new guidance strenuously clarifies the DOT’s preference that its suggestions remain voluntary and non-binding. As numerous states take up consideration of new autonomous vehicle legislation, the DOT clearly has no interest in its recommendations being used as potential language in such laws:
NHTSA strongly encourages States not to codify this Voluntary Guidance (that is, incorporate it into State statutes) as a legal requirement for any phases of development, testing, or deployment of [autonomous vehicles]. Allowing NHTSA alone to regulate the safety design and performance aspects of [autonomous vehicle] technology will help avoid conflicting Federal and State laws and regulations that could impede deployment. (18)
The document then goes on to address best practices for state legislatures considering rules for autonomous vehicles. Rather than attempt to undermine federal authority by locally preempting safety standards, states, and municipalities are more appropriately situated to continue focusing on their traditional realms of expertise, including licensing and registration, reporting, and communications mechanisms among firms and operators and public safety officials, and reviewing existing traffic statutes, laws, and regulations “that may serve as barriers to operation of” autonomous vehicles.
Further, the DOT’s top-line best practice recommendation to states is to “provide a ‘technology-neutral’ environment” in which autonomous vehicles can flourish. In particular, the guidance notes the following:
States should not place unnecessary burdens on competition and innovation by limiting [autonomous vehicle] testing or deployment to motor vehicle manufacturers only. For example, no data suggests that experience in vehicle manufacturing is an indicator of the ability to safely test or deploy vehicle technology. (21)
By recommending a level and “technology neutral” market playing field, the DOT is clearly cognizant of the need to promote innovation by avoiding unnecessary regulatory strictures that could uniquely, and unfairly, apply only to autonomous vehicles rather than the broader automotive fleet. The rules and best practices the guidance suggests, therefore, are those that apply equally to both legacy manufacturers and new market entrants, such as tech companies developing autonomous vehicle software and test vehicles. Finally, the DOT also suggests that states begin considering how to appropriately apportion liability (including tort liability) among autonomous vehicle manufacturers, passengers, and operators.
In short, the guidance aims to reiterate the need for states to avoid prescribing onerous or technology-specific rules that might hold autonomous vehicle developers to a different standard than traditional automobile manufacturers. It also recommends states stick to their historic regulatory focus and expertise — insurance, licensing, and registration — while reiterating the DOT’s statutory authority to regulate safety at the federal level.
These new guidelines are a clear example of how the government can best promote governance of new technologies: through voluntary, industry-led standards adoption, a light-handed regulatory touch, and an embrace of ongoing trial-and-error experimentation. In particular, the DOT guidance champions the regulatory framework and rules necessary for accommodating a new frontier in emerging technologies:
Governance of new, untried and untested technologies should begin with industry issuing standards and best practices. A multistakeholder review process — facilitated but not dictated by the appropriate federal agency — should follow, with clear process guidelines and objective goals and deliverables. This process should in no way be predicated on a presumption of regulatory action, but merely serve as a forum for discussion. Public comments should be sought throughout the process. During this time, firms should be granted a default approval to continue operating. Regulators should observe-and-respond to ongoing developments, proposing new rules only if a risk-based assessment warrants further action.
This document’s tenor echoes the same regulatory approach we at the Niskanen Center have repeatedly emphasized. We applaud Secretary Elaine Chao, the DOT, and NHTSA for embracing a permissive regulatory approach toward autonomous vehicles, and look forward to a likely autonomous future on the horizon.