4 things you should know about DOT’s autonomous-car policy

Source: Ariel Wittenberg, E&E reporter • Posted: Thursday, September 22, 2016

The Obama administration built a framework this week for addressing the development of autonomous vehicles.

The National Highway Traffic Safety Administration’s 116-page document outlines proposals that aim to walk the line between safety and innovation.

“Regulation can go too far. Government sometimes gets it wrong when it comes to rapidly changing technologies,” President Obama wrote in an op-ed in the Pittsburgh Post-Gazette on Monday.

“That’s why this new policy is flexible and designed to evolve with new advances.”

Here’s what you need to know about the policy:

Why now?

NHTSA’s announcement comes amid growing buzz about autonomous vehicles.

Uber Technologies Inc. started offering Pittsburgh residents rides in autonomous vehicles staffed with safety drivers this month, while over the summer Tesla Motors Inc. made headlines when its autopilot program was involved in a fatal crash in Florida.

As Transportation Secretary Anthony Foxx told reporters Monday: Guidance is needed now because the technology is being tested now.

“What I didn’t want to have happen is this tech to hit our doors and our department be completely unprepared to deal with it on its own terms,” he said.

At the same time, states have also been racing to both regulate autonomous vehicle testing and allow more types of testing, creating a patchwork of laws across the country (Greenwire, Sept. 19).

NHTSA had to act in order to reassert its authority over driverless vehicles and tell states to stop stepping on its toes.

“There is a little push and pull going on right here,” former National Transportation Safety Board Chairman Mark Rosenker explained. “The states are doing their traditional role of regulating their highways and encouraging new industry to set up there, and the federal government in turn has said, ‘We are going to catch up and tell you what you need to do.'”

Automakers have also asked the federal government to step in to avoid a cross-country hodgepodge of regulations.

What will the policy do?

The new guidelines take three concrete, immediate steps.

First, they clarify where state jurisdiction over autonomous vehicles ends and federal regulations begin. States have traditionally regulated drivers, while the federal government has regulated vehicles, and this policy defines self-driving software as part of the vehicle, placing it firmly under the federal government’s jurisdiction.

That means it is up to the federal government to decide when self-driving software is safe to deploy without a human to intervene, something state regulators disagree on.

In making this distinction, the guidelines also outline a model state policy for governing autonomous vehicle testing and deployment but makes clear: “If a state does pursue [autonomous vehicle] performance-related regulations, that state should consult with NHTSA and base its efforts on the Vehicle Performance Guidance provided in this Policy.”

Second, the policy also requests that automakers submit safety assessments to NHTSA describing how they would address 15 points &mdash: including physical vehicle safety, cybersecurity and object recognition. The assessments are purposely not prescriptive, meaning regulators aren’t telling automakers how to make their vehicles safe. Instead, NHTSA wants to use the assessments to learn more about the technology.

As a senior Department of Transportation official put it, “We don’t want to prescribe how a standard might be met because that could stifle innovation. At this stage in the development, we don’t know what all the right answers are, and so we want to protect innovation.”

Companies already testing autonomous vehicles on public roads are being asked to submit their assessments in March, or four months after the 60-day comment period on the policy ends.

NHTSA also asks companies to submit safety assessments four months before testing or deploying any new autonomous vehicles or technology.

The last aspect of this policy being implemented soon is a promise to expedite the current interpretation and exemption process.

NHTSA has been using letters of interpretation to clarify existing regulations and exemptions from existing standards to accommodate alternative vehicles. That practice will be accelerated under the new policy, which reduces the response time for interpretation requests to 60 days and for exemption requests to six months.

Must Congress act?

NHTSA plans to update the policy every year, and many suggestions in the document would require either a formal rulemaking or congressional action.

For example, automakers don’t have to submit 15-point safety assessments as long as NHTSA continues to “request” them instead of requiring them in a regulation.

The guidance released this week considers rulemaking as a possible next step, saying, “This reporting process may be refined and made mandatory through a future rulemaking.”

The guidance also calls for NHTSA to “consider” updating the Federal Motor Vehicle Safety Standards that dictate everything about cars &mdash: from requiring that they have steering wheels and brake pedals to regulating the thickness of their windshields.

Google and Ford have already said they want to make vehicles without manual controls, including steering wheels, which the John A. Volpe National Transportation Systems Center has said could “pose challenges” under current regulations (E&ENews PM, March 11).

And there is a role for Congress.

Current law limits NHTSA exemptions to 2,500 vehicles per year for a two-year period. That means even expediting exemptions is not sustainable for the agency.

Instead, the guidelines note that Congress could authorize NHTSA to grant exemptions for 5,000 vehicles per year for up to five years. Doing so would allow manufacturers to develop autonomous vehicles and bring 25,000 of them to market within five years, providing a trove of data for regulators to examine before making other rules.

The policy document also discusses the idea that autonomous vehicles require more safety oversight than traditional ones.

Currently, NHTSA sets safety standards and automakers “self-certify” that they are in compliance. NHTSA typically does not test cars or look at company data unless there is a problem or potential recall.

The policy discusses the possibility of flipping that model on its head by creating a pre-market approval process for autonomous vehicles more akin to how the Federal Aviation Administration regulates airplanes. Under that model, automakers would have to prove the safety of their vehicles before selling them to consumers.

Such a change would require Congress to amend the National Traffic and Motor Vehicle Safety Act, which gives NHTSA its authority.

Meanwhile, NHTSA also recognizes that its current workforce isn’t necessarily up to speed on autonomous vehicle technology, and the policy discusses giving the agency more flexibility for employee pay, direct employment and recruitment. Any changes to NHTSA’s hiring policies would require action from the Office of Personnel Management.

NHTSA officials won’t say when they would expect to start rulemaking or asking Congress for changes, so it’s unclear how this process will affect the goal of some companies to bring fully autonomous vehicles to market by 2021 (Greenwire, Sept. 19).

What will be the impact of the November election?

Much of what happens next in regulating autonomous vehicles depends on the next administration. Following yesterday’s announcement, the public has 60 days to comment on the NHTSA policy, meaning the agency couldn’t begin a rulemaking before the election.

Both Democratic presidential candidate Hillary Clinton and Republican Donald Trump have been quiet on autonomous technology.

Clinton does mention self-driving cars as part of her “technology and innovation” plan, promising to “foster the evolution of 5G” and other communications systems autonomous vehicles and other technology could rely on.

“Hillary’s technology policy agenda will position American innovators to lead the world in the next generation of technology revolutions — from autonomous vehicles to machine learning to public service blockchain applications,” according to her website.

A Clinton spokesman didn’t respond to repeated requests to comment on the specifics of NHTSA’s policy.

For his part, Trump has yet to mention autonomous vehicles either on his website or on the campaign trail. A Trump spokesperson declined to comment on either the technology or NHTSA’s announcement.

In Congress, autonomous vehicle development has vocal supporters on both sides of the aisle.

Senate Commerce Chairman John Thune (R-S.D.) and Sen. Gary Peters (D-Mich.), founder of the Senate Smart Transportation Caucus, have been vocal proponents of the technology and have supported legislation helping the auto industry secure radio spectrum for vehicles to communicate with each other and with infrastructure.

Thune, Peters and House Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) all released statements yesterday saying they are generally supportive of the NHTSA guidelines but need time to more fully examine them.

“As this collaborative process moves forward, I expect new needs for oversight and Congress’ role will come more clearly into focus,” Thune said in a statement.

Funding for self-driving car research was one of the few new programs in President Obama’s transportation budget request to receive bipartisan support. The president requested $3.9 billion over 10 years for pilot programs to test self-driving cars. Though lawmakers have not met that precise figure, the Republican-led Senate Appropriations Committee designated $891 million for NHTSA in its transportation spending bill, some of which would be used to fund autonomous vehicle research.

Still, while generally supporting the technology has so far been bipartisan, the question of regulation is more likely to fall along party lines, with Democrats calling for more oversight than Republicans.

That partisanship was on display at a Senate Commerce Committee hearing last spring when Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) were vocal about the need for regulating how autonomous vehicles maintain riders’ privacy (E&E Daily, March 16).