The US Department of Transportation and the White House have released a new federal government automated vehicle policy guide. This is the federal government's primary, most current automated vehicle policy and regulatory document, and it is noteworthy for anyone interested in automated vehicles, equipment, or technology, including autonomous vehicles and equipment and related services, all levels of automated vehicles and advanced driver assistance systems, and more broadly the future of mobility challenges and solutions. Entitled "Ensuring American Leadership in Automated Vehicle Technologies: Automated Vehicles 4.0," the bulk of the Report describes research, policy, funding, and other efforts by 38 different federal government agencies in support of the development and deployment of automated vehicles in the United States.
Announcing the new AV 4.0 policy Report, US Transportation Secretary Elaine Chao summarized that "the takeaway from AV 4.0 is that the federal government is all in − for safer, better and more inclusive transportation, aided by automated driving systems." This latest version of federal Automated Vehicle (AV) policy guidance affirms some of the regulatory guidelines established in the first three versions of the document (issued in 2016, 2017, and 2018), articulates a new set of 10 general principles to guide federal government activity regarding automated vehicles, and describes the role and efforts of a variety of federal government agencies involved in the development and promotion of the AV industry and technologies in the United States.
Significantly, the new policy document emphasizes the Department of Transportation's voluntary approach to AV regulation, affirming previously established voluntary guidance and manufacturer self-assessments, and promising to "promote voluntary consensus standards as a mechanism to encourage increased investment and bring cost-effective innovation to the market more quickly." The Report also highlights the importance of collaboration between the many stakeholders in the AV development and commercialization enterprise, from industry to all levels of government to users and the public to academe to standards organizations.
The Report's primary focus is on providing general descriptions of the activities of numerous government agencies that have responsibility for AV-related policies or subjects. Nearly four-fifths of the Report is devoted to these descriptions of federal government agencies whose activities affect − in ways big and small − the development and commercialization of AVs. The Report contains little discussion of specific substantive policy issues or the challenges of facilitating the safe, expeditious, and effective development, testing, and deployment of AVs in the United States.
TEN FEDERAL GOVERNMENT PRINCIPLES REGARDING AVS
The first of two main innovations in AV 4.0 is the establishment of 10 general principles, organized into three core "interests," to guide all federal government policies and activities with respect to AVs. The Report's articulation of the general principles is relatively short, and does not describe in any detail how the government intends to implement the principles or achieve their goals. Following are summaries of those principles.
I. Protect users and communities
- Prioritize safety: the federal government will seek to "facilitate the safe integration of AV technologies, address potential safety risks, enhance the life-saving potential of AVs, and strengthen public confidence in these emerging technologies." The government will also enforce laws proscribing deceptive claims about capabilities and limitations of AV technologies.
- Emphasize security and cybersecurity: the federal government will work with industry to support the design and implementation of secure AV technologies that have adequate safeguards against threats to public safety through malicious use of AVs and related services. This includes collaboration with industry to develop and promote physical and cybersecurity standards and best practices for AVs and transportation systems.
- Ensure privacy and data security: the government will develop a risk-based approach to protect private data, including data of drivers, passengers, and third parties such as pedestrians.
- Enhance mobility and accessibility: the government seeks to support freedom of choice of mobility options based on individuals' circumstances, needs, and preferences. This includes freedom to choose to drive conventional vehicles.
II. Promote efficient markets
- Remain technology neutral: the government will adopt flexible technology-neutral policies to allow the public (not the government) to choose the most efficient and effective transportation and mobility solutions.
- Protect American innovation and creativity: the federal government will promote emerging technologies and American innovators through the protection and enforcement of intellectual property rights, both in the US and internationally.
- Modernize regulations: the federal government will modernize or eliminate regulations that unnecessarily impede innovation, and encourage a consistent regulatory and operational environment, at all levels of government. When regulation is necessary, the federal government will seek rules that are performance-based and nonprescriptive and do not discriminate against American goods and services.
III. Facilitate coordinated efforts − across and among governments
- Promote consistent standards and policies: the federal government will prioritize voluntary consensus standards, and evidence-and-data-based regulations. And it will encourage international, state, and local governments to do the same and to adopt harmonized technical standards.
- Ensure a consistent federal approach: the federal government will coordinate AV research, policies, and regulation to maximize consistency and effectiveness across government agencies and programs. It will also work to ensure that federal monies used for AV research comply with Buy America requirements and all current laws and regulations.
- Improve transportation system-level effects: the government will focus on improving transportation system-level performance and efficiency while avoiding negative system-level effects from AV technologies.
ADMINISTRATION EFFORTS SUPPORTING AV TECHNOLOGY GROWTH AND LEADERSHIP
The AV 4.0 document briefly describes examples of the current Administration's funding of initiatives and programs that support AV technology development and growth, including its advanced manufacturing strategy; artificial intelligence and machine learning initiative; and certain FCC spectrum policies that could support connected vehicle deployment (the Report does not discuss the FCC's pending proposal to reallocate the majority of the 5.9 GHz spectrum from auto safety uses to other uses such as Wi-Fi). The document also discusses the federal government's studies of STEM education and workforce training, supply chain security (banning the importation or use of technology from certain foreign-owned companies), and its quantum information science policies.
US GOVERNMENT ACTIVITIES AND OPPORTUNITIES FOR COLLABORATION
The second major new feature introduced by AV 4.0 is a description of programs, research, funding, policies, and other activities of federal agencies across the government that aid and promote the development and deployment of AVs and related technology and mobility solutions. Surveying agencies across the federal government from DOT and its operating agencies to the Department of the Interior to the Postal Service, the Report provides a general description of government agency activities that support and promote AV-related research, innovators, entrepreneurs, products, and services while safeguarding privacy, security, and intellectual property.
This new survey of government activity accounts for approximately 80 percent of the narrative text of the Report. It describes activities of dozens of government agencies and entities in areas as diverse as tax and trade policy, competition policy, workforce research, accessible transportation and related healthcare and disability policy, intellectual property, cybersecurity, agriculture, and defense. It also describes opportunities, including grants and other funding opportunities, for innovators to collaborate with the government on development, testing, and deployment of AVs and related technologies. It is a useful contribution to federal AV policy, in part because it identifies the many other government functions, in addition to safety regulator, that may be important to the successful development, commercialization, and widespread use of AVs. Although the Report's core principles prioritize consistency and cooperation across federal agencies, it does not otherwise articulate a specific plan or mechanism for interagency collaboration or integrated and coordinated AV policies and actions.
The Report concludes with several appendices, the most helpful of which are listings of websites and contact information for government agencies responsible for AV-related programs and policies. Combined with the narrative descriptions of federal agency AV activities, the contact information constitutes a useful compendium of federal resources for persons interested in AV policy and programs.
MUCH POLICY WORK REMAINS TO BE DONE
The AV 4.0 Report is primarily a description of AV-related programs and activities of federal government agencies, combined with a statement of high-level federal government policy principles to guide the research, development, deployment, and governance of automated vehicles and related technology and mobility solutions. It is a helpful resource that also sets out important core, high-level AV policy principles. It is not, and it is not intended to be, an exhaustive or detailed statement of specific concrete AV policies and actions. Much more AV policy work remains to be done to realize the goals articulated by the 10 core principles, and the safety and mobility benefits of AVs.
A prominent example is the updating of NHTSA safety standards and procedures to facilitate the safe and reasonably expeditious deployment of AVs. The primary core principle affirms that the federal government "will lead efforts to facilitate the safe integration of AV technologies, address potential safety risks, enhance the life-saving potential of AVs, and strengthen public confidence in these emerging technologies." The Report leaves for another day the many specific safety policy challenges confronting NHTSA and other agencies seeking to serve that mission, such as how to develop and apply objective and effective AV testing methods, and whether the Agency should test and evaluate self-driving software and if so how.1 It also does not address how to expedite what is a painfully slow regulatory process − if experience is any guide, those substantive NTHSA regulations and standards that may be necessary will take several years to develop. Somehow that process should be streamlined and expedited without sacrificing the quality of its results.
At the same time, development of meaningful, broadly applicable and objective, voluntary consensus standards – a linchpin of AV 4.0 safety policy – could be difficult for a very competitive new industry whose participants provide diverse, materially different solutions to complex and varying challenges. The Report does not discuss how it envisions such consensus standards will develop, how to expedite the voluntary standards development process to keep pace with technological development (some private standard organizations have also taken years to develop standards), or how, if at all, such standards would be enforced. Nor does it address the question of whether such voluntary standards will have any force under state law and the related risk of a patchwork of inconsistent state law standards. And the Report does not discuss whether changes in federal law may be necessary or appropriate to facilitate the safe, expeditious, and commercially viable deployment of AVs.
Such matters are largely beyond the scope of the general Report. Ultimately, however, it will be necessary to address these and many other specific, concrete legal and policy questions and issues in order to facilitate the safe, expeditious, and effective development and deployment of automated vehicles and technologies and the realization of their safety and mobility promise.
AV 4.0 will be published in the Federal Register for public comment soon. If you would like more information on the Report or assistance with developing and filing comments, please contact Paul Hemmersbaugh, chair of DLA Piper's Transportation Regulatory group.
1 Separately, the NHTSA portion of the federal Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions (November 2019) indicates the agency intends to address a number of these AV-related issues in the coming months and years. See https://www.reginfo.gov/public/do/eAgendaMain.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.