The race is on for the mass rollout of self-driving, Autonomous Vehicles.
Google (now Waymo) and Nissan hope to get there by 2020. Ford and Volvo hope to have a fully autonomous vehicle on the road by 2021. You have probably begun to take more than a passing glimpse at the seemingly daily news about AV technology. The reality is that the technology is here (subject only to being fine-tuned), but the current federal and state regulatory schemes (or lack thereof) are causing confusion and delays. In other words, our existing automobile laws are becoming more outdated day-by-day as AV technology continues to advance, and are creating barriers to the development, testing and deployment of AVs.
While the “non-traditional” auto manufacturers (Google/Waymo, Apple, Uber, Tesla) raced to a quick lead in AV technology, the major auto manufacturers quickly ramped up their AV development to keep pace. Now, GM, Ford, Toyota, Nissan, Volvo, BMW, Mercedes, etc., are all in the race to see who can bring AVs to the commercial market first. Traditional auto parts suppliers like Continental, known for its tire division, are also pioneering innovations in the autonomous vehicle race. Continental opened a Silicon Valley business unit called Continental Intelligent Transportation Systems in 2014.
The race has resulted in a series of mergers, acquisitions and partnerships between the auto manufacturers and a variety of start-ups, software companies and product suppliers. General Motors recently invested $500 million in ride-share company Lyft, and then invested $1 billion to purchase Cruise Automation, a self-driving vehicle startup.
Among technology/software companies, Delphi recently branded its AV program under the name Aptiv (which has a plant in Brookhaven), and Aptiv is partnering with Lyft to provide self-driving taxi rides in Las Vegas, with a fleet of 30 self-driving cars, having provided more than 5,000 self-driving public rides. Intel recently acquired Mobileye, and Nvidia is providing self-driving software to Audi, among others. In May 2016, Google announced the construction of a 53,0000-square-foot facility in Michigan to test its AV technology, and Google/Waymo is testing its self-driving cars in Phoenix through its “early rider” program.
Toyota recently announced a $1 billion investment in its AV program. Prior to its well-published crash in Arizona, Uber was operating autonomous cars in Phoenix and Pittsburgh, and acquired self-driving truck start-up, Otto, in August 2016 in a deal reportedly valued at about $680 million. However, Uber has now apparently shelved its self-driving truck division. As a group, several of the companies recently banded together to form the Self-Driving Coalition for Safer Streets, a lobbying group, to ensure that AVs hit the market sooner than later. The Coalition is promoting one clear set of federal laws, which they intend to help develop, as the best way to evolve the technology.
Safety. There were about 40,000 deaths in the U.S. in 2016 due to automobile accidents (an increase of 6 percent), including some 4,000 fatalities (11 per day) related to truck and bus crashes. In addition, there were 2.5 million injuries and more than 6 million accidents. And, more than 90 percent of those accidents are caused by human error. Estimates show that AV technology could reduce traffic deaths by about 80 – 90 percent. So, the obvious problem is the human driver. Humans get tired, sleepy, and distracted, they text, they look at Facebook – and they drink.
In fact, one theory is that our children and grandchildren will look back one day with shock and disbelief as they consider the number of deaths and accidents during the first 100 years of the automobile when we actually drove them ourselves! On the other hand, the highly publicized Tesla accident in Florida in 2016, believed to be the first fatality involving a vehicle in autonomous mode, has been a wake-up call to the industry. But, statistically, Tesla points out that its Autopilot mode, when used in conjunction with driver oversight, reduces driver fatigue and is still safer than purely manual driving. Tesla also notes that its system was still in the beta testing phase and that it provided warnings to the drivers that they remain engaged and ready to take the wheel.
Other benefits expected to come about as a result of AVs include reduced traffic congestion, offsite parking, fewer cars on the road and less individual car ownership, as society moves to a ride-hailing and ride-sharing mentality. Who wants the cost, maintenance and insurance expenses and other hassles of car ownership, when the vehicle sits unused in the garage depreciating 90 percent of the time? Studies show that the members of our younger generation do not want to be bothered by driving anyway. They much prefer the freedom to text and use social media. And, AVs will give new freedom to the elderly and people with disabilities.
How will it work?
The AVs are loaded with radar, lidar, cameras, sensors, software, maps and computers with 360-degree awareness that can see around corners, over hills and otherwise anticipate things that humans cannot, and they can react faster. And, the AVs will be connected to each other by Vehicle-to-Vehicle (V2V) technology, and to the world around them by Vehicle-to-Infrastructure (V2I) technology, via dedicated short-range communication (DSRC) links to a wireless spectrum band similar to Wi-Fi. The merger of these technologies will allow the AV to become part of an integrated transportation ecosystem. In fact, NHTSA proposed a rule mandating the deployment of connected V2V communications in December 2016.
One of the biggest debates among the manufacturers is the issue of how much autonomy the car needs to have and whether to pursue “Semi-Autonomy” (human driver required to take over in emergency, i.e., GM) or “Full Autonomy” (no steering wheel, no brake pedals, i.e., Waymo). Waymo argues that Semi-Autonomy is actually more dangerous, because the whole point is to get the humans from behind the wheel, because humans cannot be relied upon to act quickly enough in emergency situations.
With the support of the federal government, the manufacturers and the states have the support to move the AV technology, testing and development along at a brisk pace. Former President Obama carved out $4 billion in the 2017 budget for AV development, and the National Highway Traffic Safety Administration (NHTSA) is bullishly advocating for AVs. In order to get around the patchwork of various state laws that are already developing, the Department of Transportation (DOT) and NHTSA have issued two recent operational guidelines for AV testing and regulation, and a “model” policy for the states to help end the mish-mash of regulations that threaten to stymie the development of AVs.
The first proposal by NHTSA was a 116-page Policy, entitled “Federal Automated Vehicle Policy – Accelerating the Next Revolution in Roadway Safety” (FAVP), which was released on Sept. 20, 2016, and was intended to serve as a guideline to establish a foundation and a framework upon which future DOT/NHTSA action would occur. The policy, broken down into four sections, identified which aspects of AV regulation would be uniform, and which would be left to the states’ discretion. The guideline, which uses the term HAVs (Highly Automated Vehicles), focused on safety, acknowledging there were over 35,000 deaths on U.S. highways in 2015, 94 percent of which were caused by human error or bad decision-making. This initial regulatory framework served as a “best practices” to guide manufacturers in the safe design, testing and deployment of HAVs. In keeping with the Agency’s “ambitious approach to accelerate the HAV revolution,” and its desire “to be more nimble and flexible,” the Policy was expected to be updated annually, if not sooner.
A ‘Vision for Safety’
On Sept. 12, 2017, the DOT/NHTSA, under the Trump Administration, issued a new federal AV policy entitled “Automated Driving Systems: A Vision for Safety 2.0” (A Vision for Safety), replacing the FAVP. The non-regulatory framework refers to Automated Driving Systems (ADSs), whereas the original guideline referred to Highly Automated Vehicles (HAVs). The new NHTSA guideline continues to adopt the SAE Automation Levels, specifically focusing on vehicles falling within levels three through five, which are considered to be conditional, high and full automation, and include vehicles with no human driver. The new policy is “technology neutral” in that it does not favor traditional auto manufacturers over software companies, rather it encourages one and all to enter the space in order to develop AV technology sooner.
A Vision for Safety is a much leaner 36-page document with only two sections. Section 1 “Voluntary Guidance” offers recommendations and suggestions by NHTSA for industry discussion among designers of ADSs to help analyze, identify, and resolve safety considerations with regard to design best practices prior to deployment. The new policy simplifies the process for manufacturing, testing and deploying AVs, and discourages states from drafting conflicting legislation of their own. The policy attempts to strike a balance between competing groups by giving the manufacturers the flexibility they need to allow the private sector to lead the charge on technology, while maintaining federal oversight over the process to appease the critics who are voicing safety concerns over the new technology. As for trucks, the voluntary guidance notes that interstate motor carrier operations and commercial drivers are not covered by the policy and continue to fall under the Federal Motor Carrier Safety Administration (FMCSA).
While NHTSA will be responsible for regulating the safety, design, and performance of the AVs, Section 2 “Technical Assistance to States” provides clarity to the states as to their role in the safe integration of level three-five ADSs on public roads to ensure a consistent, unified national framework, so as not to create barriers to ADS operation (such as any requirement that a driver keep one hand on the steering wheel at all times). The states will be responsible for regulating the human driver and most aspects of vehicle operation, including driver licensing, vehicle registration and titling, and ensuring that traffic laws do not hamper AV technology. Section 2 encourages states to create or designate a lead agency to monitor ADS applications and testing, along with asking states to consider how to allocate liability among owners, operators and manufacturers, and determining who must carry motor vehicle insurance.
Similar to the FAVP, the new policy is intended to be flexible and updated when necessary, with the expectation that it will evolve as the needle continues to move on AV development.
» Arthur D. Spratlin, Jr. is an attorney at Butler Snow’s Ridgeland office who serves as practice group leader of the firm’s tort, transportation and specialized litigation practice group and as coordinator for the firm’s autonomous vehicle technology group, trucking group and 24-hour accident investigation team.
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