Federal Autonomous Vehicle Policy

How many lives might be saved today and in the future with highly automated vehicles? The U.S. Department of Transportation (DOT) says that it is committed to finding out. The DOT recently issued its Federal Automated Vehicles Policy (“FAVP”) in order to facilitate the safe introduction and deployment of highly automated vehicles (“HAVs”). The DOT issued the policy as agency guidance rather than in a rulemaking “in order to speed the delivery of an initial regulatory framework and best practices to guide manufacturers and other entities in the safe design, development, testing and deployment of HAVs.” This guidance targets vehicles that incorporate HAV systems, such as those for which there is no human driver at all, or for which the human driver can give control to the HAV system and is not be expected to perform any driving-related tasks for a period of time. First, it is important to know that there are different levels of automation. The DOT has adopted the SAE International (SAE) definitions as follows: • At SAE Level 0, the human driver does everything; • At SAE Level 1, an automated system on the vehicle can sometimes assist the human driver conduct some parts of the driving task; • At SAE Level 2, an automated system on the vehicle can actually conduct some parts of the driving task, while the human continues to monitor the driving environment and performs the rest of the driving task; • At SAE Level 3, an automated system can both actually conduct some parts of the driving task and monitor the driving environment in some instances, but the human driver must be ready to take back control when the automated system requests; • At SAE Level 4, an automated system can conduct the driving task and monitor the driving environment, and the human need not take back control, but the automated system can operate only in certain environments and under certain conditions; and • At SAE Level 5, the automated system can perform all driving tasks, under all conditions that a human driver could perform them. Using the SAE levels, the DOT draws a distinction between Levels 0-2 and 3-5 based on whether the human operator or the automated system is primarily responsible for monitoring the driving environment. HAVs represent SAE Levels 3-5 vehicles with automated systems that are responsible for monitoring the driving environment. The FAVP is divided into four sections: (1) Vehicle Performance Guidelines for Automated Vehicles, (2) a Model State Policy, (3) National Highway Transportation Safety Administration’s (“NHTSA”) Current Regulatory Tools and (4) New Tools and Authorities. The Vehicle Performance Guidance for Automated Vehicles (“Guidance”) outlines best practices for the safe design, development and testing of automated vehicles prior to commercial sale or operation on public roads. It is anticipated that the DOT will require manufacturers and other related entities to submit a Safety Assessment to the NHTSA each HAV system that would cover the following 15 areas: • Operational Design Domain: How and where the HAV is supposed to function and operate; • Object and Event Detection and Response: Perception and response functionality of the HAV system; • Fall Back (Minimal Risk Condition): Response and robustness of the HAV upon system failure (process of either allowing the driver to retake control or finding a safe place to stop the vehicle in case of a malfunction); • Validation Methods: Testing, validation and verification of an HAV system; • Registration and Certification: Registration and certification to NHTSA of an HAV system; • Data Recording and Sharing: HAV system data recording for information sharing, knowledge building and for crash reconstruction purposes; • Post-Crash Behavior: Process for how an HAV should perform after a crash and how automation functions can be restored; • Privacy: Privacy considerations and protections for users; • System Safety: Engineering safety practices to support reasonable system safety; • Vehicle Cyber Security: Approaches to guard against vehicle hacking risks; • Human Machine Interface: Approaches for communicating information to the driver, occupant and other road users; • Crashworthiness: Protection of occupants in crash situations; • Consumer Education and Training: Education and training requirements for users of HAVs; • Ethical Considerations: How vehicles are programmed to address conflict dilemmas on the road; and • Federal, State and Local Laws: How vehicles are programmed to comply with all applicable traffic laws. While the FAVP references ethical concerns (discussed in last month’s blog), it does not offer much, if any, guidance relative to liability. While automated cars are programed to avoid accidents, accidents are still inevitable, and when they occur, who will be responsible? For the time being, the traditional tort laws of negligence and products liability will be available for accident victims. We can presume that with more automation, the manufacturer’s liability risk increases. The Model State Policy encourages states to allow the DOT alone to regulate the performance of HAV technology and vehicles. The DOT confirms that states retain their traditional responsibilities for vehicle licensing and registration, traffic laws and enforcement and motor vehicle insurance and liability regimes; however, the DOT desires avoid a 50-state patchwork of regulations regarding the performance of HAVs. The NHTSA will also work with the states to fill the gaps in current regulations in order to establish one model state policy. One major issue to be debated is in the area of liability – some states may believe that with HAVs, the “driver” is the manufacture, while others may take a more conventional position and hold the consumer liable. The policy goes on to explain NHTSA’s currently available regulatory tools and how they might apply to AVs. The NHTSA has four primary “tools” that the agency uses to address the introduction of new technologies and new approaches to existing technologies, which are: • Letters of interpretation; • Exemptions from existing standards; • Rulemakings to amend existing standards or create new standards; and • Enforcement authority to address defects that pose an unreasonable risk to safety. Finally, the DOT identifies potential new tools and authorities that would help DOT ensure that AVs can be developed quickly but safely. Some of these include: replacing the current self-certification process with a premarket approval process; a “cease and desist” power, allowing DOT to immediately halt production if a serious and immediate safety risk is found; and post-sale regulation of software updates. History shows that with new technology, often times manufactures will be under pressure to fast track its product to market, which may cause safety to take a back seat leading to an increase in the risk for harm for the driver and the public. Accordingly, consumers need to do their research before purchasing first to market technologies, since most often, at least in this realm, first does not necessarily mean the best.