Driverless cars should be new legislative priority for Congress

Driverless cars should be new legislative priority for Congress
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Last year ended with historic tax reform legislation being signed into law following weeks of legislative ups and downs. But as we witnessed thousands of people descend upon the Consumer Electronics Show in Las Vegas and the North American International Auto Show in Detroit during January, we are reminded of an entirely different legislative area in need of congressional attention: self-driving cars.

Congress was making substantial progress toward passing autonomous vehicle legislation before the tax bill became priority number one. In September, the House passed the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act. A month later, the American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act cleared a Senate committee.

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These bipartisan bills prioritize safety and innovation and would establish a framework for regulating autonomous vehicles, while clarifying the role of the National Highway Traffic Safety Administration (NHTSA) as the primary regulator of their design, construction and performance. Importantly, they would expressly preempt conflicting state laws on these matters, addressing the disjointed regulations forming at the state level.

Why federal regulation?

The regulatory scheme that governs the present-day pre-autonomous vehicle world provides an excellent model for comprehensive federal regulation of autonomous vehicles. Absent comprehensive federal motor vehicle safety standards, which expressly preempt conflicting state standards, manufacturers would be forced to comply with myriad state and local regulations governing, for example, the design and performance of air bags, seat belts, tires, braking systems, and a multitude of other vehicle systems and components.

The cost of developing vehicles and the time it takes to bring them to market would skyrocket, and the willingness of manufacturers to invest in new innovations would suffer. Under the existing federal scheme, manufacturers are required to certify compliance with these safety standards and must promptly remedy safety defects when they are identified. States remain free to regulate the licensing and operation of vehicles and their drivers.

While state governments can and should continue to regulate such matters of local concern as speed limits and licensing requirements for human drivers, they aren’t best suited to regulate the design and performance of driverless vehicles intended to be deployed on a national or even global scale. This responsibility should fall squarely on NHTSA and other federal agencies.

Indeed, a key finding of Foley & Lardner’s 2017 connected cars and autonomous vehicles survey was that most automotive and technology executives believe that nationally consistent rules from the federal government are the best way to regulate connected and autonomous vehicles, avoiding a patchwork of state and local laws that would present compliance challenges for manufacturers and drivers, and inevitably hinder the widespread deployment of these vehicles. If manufacturers were forced to comply with the unique requirements of each of the 50 states, the vision and promise of a truly autonomous vehicle, and safer network of vehicles, could be delayed for years, if not decades.

Unique considerations

Make no mistake, the development of autonomous and connected vehicles requires new or updated regulations. Engineers today must grapple with a profusion of regulations written for human-piloted vehicles, such as requirements for human-machine interface through controls, displays, mirrors and more.

There’s also the entirely human instinct of lawmakers and regulators to require a licensed driver to remain behind the wheel, just in case. But a level five autonomous vehicle, prototypes of which are being developed and tested today, have eliminated the key human mechanical interfaces developed by pioneers of the horseless carriage: a steering wheel, brake and accelerator pedals, and many of the other familiar features of traditional automobiles.

The ability to remove the driver from the driver’s seat is the ultimate goal for many manufacturers, avoiding potential risks that may be associated with the need for human intervention. Further, the proposed legislation takes steps to address these types of concerns by mandating that manufacturers submit a safety assessment of their vehicles to NHTSA.

Recently proposed regulations issued by the state of California would allow developers of autonomous vehicles to test their technology on the state’s roads without human drivers riding along. With the prior requirement of the California Department of Motor Vehicles that self-driving cars carry a human driver behind the wheel, manufacturers have been constrained in their ability to test and deploy their most advanced systems.

Congress has the opportunity to clear away much of the ambiguity surrounding the regulation of this new technology. Important questions remain, especially around federal preemption. For example, if NHTSA excludes fully automated vehicles from federal motor safety standards requiring a steering wheel or a brake pedal, could a state still ban such vehicles from its roads without a human in the nonexistent “driver’s seat”?

These and other questions must still be worked out, but the process is moving in the right direction. With appropriate regulation, we can accelerate the drive toward mass deployment of a technology that holds the promise of reducing accidents and dramatically changing our everyday lives.

Christopher Grigorian is a partner in the Washington, D.C., office of Foley & Lardner, where his practice focuses on federal motor vehicle safety law.

Todd Rumberger is a partner in the Silicon Valley office of Foley & Lardner, where he counsels clients on corporate and transactional matters.