Do Senators Dream of Autonomous Cars?

You can’t legislate safety. Safety is complicated. Automotive safety is positively mysterious if not impossible.

The U.S. Senate, and a compliant media, congratulated itself last week for the committee-level passage of a bill intended to enable the U.S. government to usurp regulatory authority over self-driving cars from the 50 U.S. states and expand exemptions from safety regulations for self-driving car initiatives by car makers and others. It's obvious that Congress doesn’t understand what it is getting itself into.

It’s quite odd for the U.S. Congress - House and Senate - to be sounding off about automotive safety and passing legislation, especially after so little debate, considering the scope of automotive safety complexity. Missing from the debate on Capitol Hill was the U.S. Department of Transportation and its subsidiary National Highway Traffic Safety Administration (NHTSA).

The good news is that nothing has actually happened – nor is anything much likely to happen. The House and Senate will have to convene a committee to merge the two bills before final passage. Meanwhile, NHTSA yet lacks an administrator and is seen as frozen in amber with a wide array of safety initiatives languishing from rearseat seatbelt warnings to tire standards and much more.

With NHTSA stuck in neutral, the U.S. Congress has decided to turn automotive safety into a political rather than a technical issue. There was no discussion in the Senate Committee on Commerce, Science, and Transportation, which passed the bill, regarding ISO 26262 qualifications or the relevant automotive safety levels known as ASIL A-D (Automotive Safety and Integrity Level). SAE’s 1-5 levels of automation were referenced and document filings were specified in the legislation, but no provision was made for adequately funding NHTSA to enable it to take on the gargantuan implicit oversight task.

There are already dozens of automated vehicle operators across the United States, with more seeking funding or starting up from university programs and garages to Chinese startups with billions in funding. Companies like General Motors and Tesla Motors are vying to be the first to put a “mass produced” self-driving car on the road while aftermarket players are cobbling together self-driving car kits.

The task of establishing a regulatory framework for vetting and approving these systems for use on U.S. highways will be substantial and arguably belongs to NHTSA. Anyone who knows the history of NHTSA knows that the process of creating a regulatory framework, let alone funding or implementing such a scheme, can take months if not years.

One of the major rationales for Congress stepping in was to ensure a uniform regulatory environment for the development of self-driving cars – so that they could be driven between states without regulatory conflicts. In reality, autonomous vehicles for consumers are likely to be – at least at the outset – of two varieties: short run shuttles operating in closed environments or within well-defined routes or long-distance commercial vehicles. Urban use is another focal point.

There won’t be much inter-state self-driving car travel for passenger vehicles any time soon (i.e. at Level 4 or 5 full autonomy), but commercial vehicle operators and the U.S. military are keenly interested in autonomous operation across state lines. But commercial vehicles were excluded from the legislation.

The U.S. Congress’ current effort to pass self-driving car legislation is driven by auto industry and self-driving car lobbyists who were petrified at the prospect of California taking charge as the state has done on fuel efficiency and emissions - with global implications. The outcome of this lobbyist-drive push has the trappings of a de-regulatory thrust combined with a new unfunded oversight program – and excluding one of the most economically important applications: commercial vehicles.

Supporters have repeatedly warned of the regulatory balkanization that might result from a more hands-off Federal approach – i.e. leaving decision-making to the states. States already handle insurance, licensing, emissions testing, fuel efficiency and texting and driving rules on their own terms – why are self-driving cars such a big deal?

There is no reason for the Federal government to intrude, unless it is prepared to commit resources. If the Federal government were to direct NHTSA to set aside its quixotic vehicle-to-vehicle activities focused on dedicated short range communications (DSRC) technology and divert those efforts and resources to self-driving cars, there might be a justification for self-driving car legislation.

Self-driving car technology is complex and ought to be pursued under the purview of regulators with appropriate training and rule-making authority. Decisions regarding the future of autonomous driving ought not be made in the U.S. Congress until after appropriate analysis by the appropriate Federal department.  For the time being, state-level decision and rule making better serves unique local needs, which will vary with geography and demographics, while also giving local voices more direct access to the decision makers.

Even under the best of circumstances the time between the passage of legislation and the implementation of policy can be years. (The multi-year effort to mandate back-up cameras via legislative fiat is a prime example.) NHTSA’s rule-making authority and Congress’ ability to mandate safety have been hamstrung and hobbled by lobbyists seeking to slow regulatory processes. 

By the end of the Obama Administration, NHTSA had been reduced to releasing a range of guidelines around driver distraction, automatic emergency braking, privacy and cybersecurity – more or less giving up on the multi-year rule-making process entirely. NHTSA’s rule-making authority is due for an overhaul, but legislation is not the solution to the problem of automotive safety.

Among the many issues yet to be completely grasped by legislators is remote control of self-driving cars. In the early days, autonomous vehicles will require remote control and predetermined fail safe and fallback systems and procedures. Remote control from Washington, DC, is not the answer.