General Publications July 13, 2016

“NHTSA Autonomous Vehicle Rules Take an Unexpected Turn,” Law 360, July 13, 2016.

Extracted from Law360

As part of its mission to save lives, the National Highway Traffic Safety Administration has been working to make autonomous vehicles (AV) a reality. The NHTSA’s reason for pushing this technology forward is very compelling: more than 32,000 people died last year in auto accidents, and 94 percent of those fatal crashes are blamed on human error. Or as the NHTSA Administrator Dr. Mark Rosekind, explains, that’s like having a fully loaded 747 crash every week. With no survivors.[1]

In recent months, the NHTSA has taken a number of steps to help get AV technology on the road as soon as possible. For example, the NHTSA interpreted the Federal Motor Vehicle Safety Standards (FMVSS) to allow the artificial intelligence system that pilots AVs to qualify as the “driver” of those cars.[2] This means that the (error-prone) people riding in the AV do not have to be involved in driving. And on other occasions the NHTSA has discussed its plan to work with states to develop policies that mesh with the federal standards in order to develop a uniform nationwide framework, the goal again being to help enable innovation.[3] Yet, the NHTSA has recently taken a step in a different direction.

When discussing the new guidelines that the NHTSA is developing for AVs, Rosekind said that states will be allowed to develop some of their own rules for those vehicles: “What the states actually implement is their call ... We will have no say in what the states want to do.”[4] Thus, the new guidelines will identify which aspects of AV regulation will be uniform and which will be left to the states’ discretion.[5]

Although Rosekind declined to explain why the NHTSA seems to have changed course, it is easy to see valid reasons for being deferential to the states. That is a fairly common approach — in other regulatory contexts, federal law acts as a floor rather than a ceiling. For example, when protecting the environment from pollution, states are allowed to develop their own rules to augment certain federal laws. On the other hand, one can see problems applying this approach to AVs. Cars are different. No one has ever driven a (polluting) factory from California to New York.

The auto manufacturers and technology companies that are developing AVs are understandably concerned about a patchwork quilt of different state laws. Having as many as 50 different sets of rules could impact not only how AVs evolve, but also when.

The Impact of Differing State Laws on How AVs Work

By writing their own rules, the states could change the design of AVs. For example, consider the driver. At the federal level, the NHTSA will not require a human driver — the computer can control the AV. However, states could enact laws that would require a human driver who can take control of the AV, if necessary.[6] California already has such a law on the books (although it has proposed legislation that would follow the federal rule).[7] Nevada, Michigan and Florida also require a human driver who can take control of the AV.[8] Because most states have not yet passed laws regarding AVs, there is no telling how many others will follow their lead. But it only takes one state to change the way AVs are made.

In order for a human driver to take control, AVs will have to be designed with steering wheels and pedals. This puts the manufacturers in a difficult position. Federal law may not require steering wheels and pedals, but the laws of some states could. And any preemption analysis would be complicated by the NHTSA’s recent promise that states are free to create their own laws governing certain aspects of AVs.[9] One answer would be to make all AVs with steering wheels and pedals so they can be driven in states that require these controls. But that “solution” could create new kinds of liability for the manufacturers. What happens if a human driver takes control of an AV when he should not and causes an accident?

In a state that does not require steering wheels in AVs, lawyers could argue that including a steering wheel is a design defect. After all, people make mistakes. Compared to an AV that has 360-degree vision, radar and laser systems to enhance that vision, and is wirelessly connected to other vehicles to understand where they are (and more importantly where they are going), people have less information, take longer to make decisions and cause approximately 94 percent of all fatal accidents. So manufacturers have to choose between making AVs less safe (i.e., with steering wheels), making AVs that are programmed to not enter the states that require steering wheels (if anyone would buy such a car) or not making AVs at all.

And that’s the real risk of letting each state write its own laws. In addition to differences from state to state, over time the laws of a single state can change. No one can hit 50 moving targets with a single shot. For example, consider the debate over how AVs should be programmed to make tough choices when an accident is unavoidable (e.g., whether to sacrifice a single passenger in the vehicle by driving into a wall or stay on the road and hit a large group of pedestrians). The NHTSA has not yet developed a standard on this point. Thus, some states could enact legislation requiring AVs to do the least harm possible, while others require AVs to protect their own passengers. Obviously, a single AV cannot do both.

Differing State Laws Could Impact When AV Technology Is Available

Even if it were possible to design an AV that complied with all of the different (and possibly conflicting) state laws, the analysis and uncertainty involved could delay the rollout of AV technology — here. Other countries with a single set of rules would be the first markets for AVs and the first countries to experience the life-saving benefits of this technology. Which brings us back to the NHTSA’s core reason for trying to implement AVs as soon as possible: to stop a 747 from crashing every week in this country. Because the statistics and research the NHTSA has done on this topic are so compelling, it is clear that AVs should not be delayed.

More importantly, we do not have to choose. There is a way to respect states’ rights while still creating a single, uniform set of laws for AV technology. The states could communicate more proactively with the NHTSA in the rulemaking and interpretation processes. And the states could also add clarity to their own laws by confirming that the federal standards trump conflicting state laws regarding AVs.[10] Because any uncertainty can lead to litigation, and litigation leads to delay. Since we are talking about saving tens of thousands of lives every year, why why even take that chance?

[1] NHTSA Administrator Mark R. Rosekind, Ph.D., Address at Dearborn, Michigan (March 16, 2016).
[2] Feb. 4, 2016, letter from Paul A. Hemmersbaugh to Chris Urmson.
[3] March 16, 2016, speech by Mark R. Rosekind, supra.
[4] “NHTSA Won’t Block States from Setting Their Own Rules on Self-Driving Cars,” The Wall Street Journal, June 8, 2016.
[5] DOT Secretary Anthony Foxx, Press Briefing, Washington, D.C. (June 29, 2016).
[6] As someone who (still) prefers a manual transmission, I completely understand the visceral reaction to a car with no steering wheel or pedals. What if the computer locks up? But if you don’t trust computers, a modern steering system can’t be the answer since those use computers, too. So unless we really want to pair 1970s-style mechanical linkages with 21st century AVs, we probably just need to let the machines do their job. Like we do with elevators.
[7] Cf. Cal. Veh. Code § 38750(b)(2) (requiring a driver to be capable of taking over immediate manual control of the AV in the event of a technology failure) with 2016 Cal. A.B. No. 2866 (allowing AVs to operate without a human driver and without a steering wheel or brake pedals).
[8] Nev. Rev. Stat. § 482A.080 (2013); Mich. Comp. Laws § 257.665 (2014); Fla. Stat. § 319.145 (2016).
[9] State regulations that clearly conflict with the FMVSS would be preempted. 49 U.S.C. § 30103(b). However, Secretary Foxx has stated that the upcoming guidelines will not go through the formal rulemaking process. Thus, it is not yet clear which aspects of AV technology will be part of a uniform federal scheme and which will vary. For example, it is possible that the federal standard will merely allow the computer to be the driver; it would not require a computer to be the only driver. In that scenario, states would arguably be free to develop laws that require human drivers to take control of the AV. And since the NHTSA has already taken the position that the states can write standards that augment federal law, one would be hard pressed to argue that those state standards present an obstacle to accomplishing the goals of the federal AV standards. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 883, 146 L. Ed. 2d 914 (2000) (placing weight on the U.S. Department of Transportation’s interpretation of the FMVSS’s objectives because the agency is uniquely qualified to comprehend its own regulations and goals and the likely obstacles presented by state requirements).
[10] See, e.g., Fla. Stat. § 319.145 (2016).
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