February 8, 2017

As autonomous vehicles have rushed into the spotlight, many states and cities have worked to understand how to best accommodate the emerging technology while ensuring its safe deployment.

But the Governors Highway Safety Association (GHSA) has one piece of advice for those states: slow down.

Since the National Highway and Traffic Safety Administration (NHTSA) has not yet established a uniform set of regulations concerning the safety and performance of autonomous vehicles, a number of states have stepped in to fill the void.

This has resulted in a patchwork of systems created by states that, for better or worse, have passed a series of laws and regulations to attract companies developing and testing autonomous vehicles (AVs). There is a fear, both in policy and tech circles, is that the lack of uniform regulations will discourage – or even penalize – companies for developing AVs.

GHSA released a report this month, penned by Dr. Jim Hedlund, that proposed a set of priorities for state Departments of Motor Vehicles (DMVs) and State Highway Safety Offices (SHSO) as the nascent technology matures:

• Stop passing laws and regulations until model state policies have been developed that will ensure compatibility across state lines;
• Educate constituents on the pros/cons of AVs, how to operate them, and how to share the road with them;
• Establish data collection practices and have a centralized recordkeeping system; and
• Train law enforcement in how to interact with AVs

The Hot Potato Handover

Since vehicle autonomy is being developed gradually rather than being introduced all at once, there is a clear and present need for consumers to be aware of the capabilities and limitations of their vehicles.

A highly publicized Tesla Autopilot crash last year demonstrated that consumers might not be fully aware of the capabilities and limitations of semi-autonomous vehicles. In the case of this fatal collision, both the automated system and driver failed to take control of the vehicle before it slammed into a tractor-trailer.

This is an example of what Eno and others in the industry are calling the “hot potato” issue. Until autonomous vehicles are capable of fully driving themselves, the incremental stages of autonomy will demand that human operators are required to intervene in the driving task at the drop of a hat.

This quandary is especially important when crafting policies around liability and insurance for autonomous vehicles. According to a study by Virginia Tech, the average driver needs at least 17 seconds of warning before they are capable of regaining focus and taking back control from an AV in an emergency situation.

The question, then, is how consumers can be made aware of when and how they should be prepared to take over control of a semi-automated vehicle that is presented with a situation where it cannot safely operate on its own. GHSA indicates that there is no consensus on this issue and discussions “likely will continue for some time.”

An especially provocative suggestion in the report is that states should require operators of mid-range AVs (levels 2-4) to receive training prior to purchasing an automated vehicle and/or activating the automated systems. Furthermore, GHSA recommends that AV training could be recorded as an separate endorsement on a driver license (like being able to drive a motorcycle).

This prompts an entire host of questions, especially since autonomous vehicles are expected to come at high price premiums in their first decades in their initial decades of deployment, according to GHSA.

Furthermore, the report found that only about 20% of the public is ready to buy a fully autonomous vehicle, at least immediately.

In this case, would consumers be willing to invest the time or energy into also receiving driver training for (semi) self-driving cars?

The State Domain

Since 1966, it has been the role of the federal government to regulate and set standards for motor vehicles. This ensures that Americans can drive commercially-available vehicles from coast to coast and cross state lines without fear that a state has outlawed the make, model, or type of their car.

Meanwhile, states retain sovereignty over the tasks of licensing drivers, regulating insurance, registering vehicles, and (if they choose) inspecting motor vehicles.

By and large, states are prohibited from establishing motor vehicle standards that conflict with existing federal standards. However, in certain instances, states are permitted to establish their own standards for motor vehicles that are not specifically addressed by the federal government.

The report acknowledges that AVs will blur the distinctions and cause undue challenges for automakers and tech firms developing the technology. Instead, states should defer to NHTSA as it works on a set of AV standards. Furthermore, GHSA argues that:

Laws or regulations formed in haste may not be thought out well, may in fact hinder rather than help AV testing and implementation, and may soon be out of date. AV technology and capabilities are being developed rapidly, so that laws and regulations must deal not only with current AVs but must accommodate future changes as much as possible.

(Asst. Ed. Note: This misses a central and vital point – in the absence of federal activity, states are the laboratories of policy innovation. NHTSA itself indicated in its Federal Automated Vehicle Policy that states should use this opportunity to experiment with a variety of different laws and regulations – with the vague caveat, of course, that such policies should not hamper innovation.)

State experimentation with AV policies has already yielded a variety of different policy approaches to the technology that may not have been realized at the federal level.

Tennessee instituted a vehicle miles traveled tax for AVs; Michigan’s comprehensive AV laws allow manufacturers to operate on-demand transportation networks; California is weighing the benefits of a policy where local governments must first consent to AV tests in their jurisdiction.

For better or for worse, states are able to test bold policies on a small scale – and in circumstances that are of low impact nationally. It is especially helpful that state governments respond (at least marginally) faster than the federal government if a policy does not work.

For example, if Washington were to enact an unintentionally overbearing regulation on AVs, manufacturers would still have the option to test their AVs in 49 other states until Washington repealed it.

The federal government does not have this privilege – at the national level, a similarly harmful regulation could deal a serious blow to the ecosystem of manufacturers and tech firms from California to Michigan to Pennsylvania.

Responding to ETW‘s question during a webinar on the report, Russ Martin, Director of Government Relations for GHSA, agreed: “I think there’s a role for the state and federal levels, especially for states like Pennsylvania. I don’t think we should preclude states from passing AV policies.”

Dr. Hedlund agreed: “Go do it, but don’t pass really restrictive laws if you don’t know what you’re doing.”