Automakers and their advocates have been busy in the halls of Congress and Department of Transportation. The U.S. House of Representatives passed legislation that will make it easier for self-driving cars to hit the road, the Department of Transportation replaced an Obama-era self-driving vehicle policy with a more industry-friendly approach, and the Senate had a hearing on a bill that would also speed the deployment of self-driving vehicles, including trucks.
The good news
The bill that passed the House and the bill being considered in the Senate include some positive provisions. For example, each establish an expert committee that will be tasked with identifying how self-driving vehicles could affect: mobility for the disabled and elderly, labor and employment issues, cybersecurity, the protection of consumer privacy, vehicle safety, and emissions and the environment. Establishing a structure for a Department of Transportation-led committee to examine these issues is important for informing future self-driving vehicle policy that can help this technology create positive outcomes and avoid its potential consequences.
Both bills also draw a brighter line between federal and state authority related to vehicle safety. The way this division works for regular cars today is that the federal government regulates the vehicle and states regulate the drivers. But this distinction doesn’t quite work with self-driving vehicles, because who is the driver? The person sitting in the driver’s seat, eating pita chips and watching Netflix while the car drivers itself? Or is it the vehicle itself?
To better clarify the distinction between federal and state authority, both the House and Senate bills give control over the design, construction, and performance of self-driving vehicles and self-driving technology to the federal government. States retain their right to enact laws related to how these vehicles are registered, who can use them, and how they interact with state or local roads and infrastructure. However, states would be preempted from enacting any law that can be read to be an “unreasonable” restriction on the design, construction, or performance of a self-driving vehicle.
The last bit of good news is that the bills require automakers to submit detailed cyber-security and safety evaluation reports to the Department of Transportation. The bills also note the need to inform consumers of the capabilities and limitations of self-driving vehicle systems, so that users better know when the system can be engaged or needs to be turned off. In fact, the National Transportation Safety Board recently found that Tesla’s autopilot lacks the appropriate safeguard to prevent drivers from using it improperly.
The bad news
It wouldn’t be federal legislation if there wasn’t something bad tucked in, and both the House and Senate self-driving vehicle bills have some potentially dangerous provisions.
Both bills allow self-driving vehicles to be granted exemptions from federal motor vehicle safety standards (FMVSS). Any vehicle, whether self-driving or not, can be granted an exemption from FMVSS, and the law currently allows up to 2,500 exemptions per manufacturer per year.
Self-driving cars will surely need FMVSS exemptions. They might not have a steering wheel, for example, so they couldn’t possibly comply with the FMVSS for steering wheels and, as a result, couldn’t be tested or sold in the U.S. The whole FMVSS playbook will likely need to be updated by the Department of Transportation to respond to self-driving vehicle technology. But before then, self-driving vehicle makers will look for exemptions to sell their product.
The problem is the number of exemptions that the House and Senate bills are offering self-driving vehicle manufacturers. Both bills would grant a single manufacturer up to 100,000 exemptions from FMVSS after a couple years. (The Senate bill starts with 50,000 in year 1, for example.) This means that an automaker could make a self-driving vehicle and exempt it from any safety regulation that would “prevent the manufacturer from selling a motor vehicle with an overall safety level at least equal to the overall safety level of nonexempt vehicles.” Given that self-driving vehicles will likely have similar, if not better, safety ratings than regular vehicles, I could see this language as having very broad appeal for getting the Department of Transportation to approve exemption requests.
Exempting self-driving cars from FMVSS for testing purposes makes sense, but the quantity of exemptions allowed in the House and Senate bills is excessive. Once self-driving cars are on the road, there’s no putting the self-driving genie back in the bottle. Transportation analysts, academics, the government, and the public need to better understand the safety, congestion, labor, and other impacts that self-driving vehicles will create before automakers get a free pass to each put 100,000 self-driving vehicles on the road.
Limiting the number of FMVSS exemptions closer to the current cap of 2,500 per manufacturer would put the introduction of self-driving vehicles at a pace to better understand how they function in actual driving conditions, not on the test track (or test city). In addition, several groups and two former heads of the National Highway Traffic Safety Administration have expressed skepticism that the agency even has the resources to process additional FMVSS exemptions or conduct adequate oversight in this area.
The ugly news
In 2016, the Obama-led Department of Transportation put together a thoughtful, lengthy memo that detailed where the Department was headed on self-driving vehicle regulation. Earlier this week, the Department tossed that out the window and replaced it with a streamlined set of voluntary guidelines that self-driving companies should seek to follow.
Like the Obama-era guidance, nothing in the new federal guidance is mandatory. But unlike the previous guidance, the new guidance isn’t very specific. Consumer advocates like Consumer Watchdog and Consumers Union lambasted this approach as being a handout for industry, and they have a point. The guidance “encourages” the industry to do a lot of things, like collect data on when self-driving vehicles malfunction or crash, or submit a “voluntary” safety self-assessment that isn’t subject to any sort of federal approval.
Overall, the tone and vagueness of the document, combined with the choice to just throw out, and not build upon, the previous self-driving vehicle guidance puts this move by the Department of Transportation squarely in the ugly category.