Earlier this year, Michigan State Senators Kowal, Warren and Horn introduced four nation-leading bills regarding automated vehicles and created the American Center for Mobility. Identified as senate bills 995-998, this package addresses the operation of truly autonomous vehicles and the establishment of Safe Automated Vehicles Environment (SAVE) zones that allow for the operation of geo-fenced fleets of fully autonomous vehicle services—just imagine GM-owned and operated (with a little help from Lyft), fully automated, driverless vehicles that would be available on-demand to shuttle folks throughout downtown Detroit. The bills also include limitations on product liability for any modified or hacked vehicles. Finally, and somewhat disappointingly, the fourth bill recognizes, but fails to explain, define, fund or empower the American Center for Mobility, a national-scale research and testing initiative on the site of the former B-24 bomber factor in Willow Run.
This package of bills was approved by the Senate unchanged and headed to the House with the hope of passage and signing by Governor Snyder before year’s end. However, recent hearings and a letter from a major player have raised concerns over the bills as drafted. First, a representative of the auto negligence attorney community raised concerns about how automotive personal injury victims would be protected under the new state automated vehicle law. Second, Google submitted a letter pointing out that the bills as written may be interpreted to ban companies such as Google from conducting the testing and fleet operation rights clearly granted to OEMs under the bills. These concerns resulted in some changes to the House version, which when approved, will be sent back to the Senate.
To make matters more complicated, on September 20, 2016, the Department of Transportation (DOT) and the National Highway Transportation Safety Administration (NHTSA) issued federal guidelines—known as the Federal Automated Vehicles Policy. Under the guidelines, driver licensing, vehicle registration and liability and insurance regulations will be left to the states, with the hope that the states are fairly consistent in the testing and deployment of autonomous vehicles. To that end, the DOT included in its guidelines a “Model State Policy” for states that wish to regulate testing, deployment and operation of automated vehicles.
The primary goal of the federal policy is to ensure that new technologies do not introduce significant new safety risks to American roads; yet it also seeks to harness their safety benefits today and ensure they achieve their full safety potential in the future. Other goals include promoting consistency across state-level regulations and increasing the regulatory responsiveness to a set of technologies that is developing more quickly than the rules surrounding its use.
These guidelines attempt to address the safe design, development and testing of automated vehicles prior to commercial sale or operation on public roads by including a 15-point safety assessment for “manufacturers” developing and deploying automated vehicle technologies that range from data recording and sharing of information, to vehicle cybersecurity protocols. The NHTSA has agreed to respond to requests for exemptions from existing standards to accommodate designs for autonomous vehicles within six months (instead of up to several years), and it commits to issuing interpretation letters, explaining how emerging technologies can comply with current law, within 60 days.
Perhaps the most significant measure proposed by the federal guidelines is the “pre-market approval” authority, whereby the government inspects and affirmatively approves a new technology before it reaches the marketplace. This represents a radical departure from NHTSA’s current self-certification system, in which manufacturers certify that their vehicles meet the FMVSSs. The proposal is aimed not only at safety, but perhaps to a greater extent at accelerating acceptance of AVs by the driving public, who will perhaps be less fearful of vehicles affirmatively approved by the federal government. The DOT plans to engage in a conversation with automakers and members of Congress regarding this power, which would require an amendment to the National Traffic and Motor Vehicle Safety Act.
The new policy also proposes that NHTSA have the authority to require manufacturers to take immediate action to mitigate serious and immediate safety risks—what the guidelines refer to as “imminent hazards.” This power would complement the pre-market approval function—if NHTSA affirmatively approves vehicles before they hit the road, it makes sense that the regulators also want the power to minimize the damage when one of those approved vehicles turns out to be dangerous. Essentially, such authority represents an extension of NHTSA’s power to order vehicle recalls: rather than investigating whether the consumer or the manufacturer is at fault before taking action, the agency could “act first, ask questions later.”
