A crucial aspect of regulating automated vehicles is how they should be expected to interact with their environment. (Argo AI)

Who’s making the rules in the fast-moving AV age?

The auto industry’s impact on NHTSA’s regulatory cadence is apparent – and challenging theories of rulemaking.

Even to casual observers, it’s clear that the regulatory landscape for autonomous vehicles (AVs) is a void filled with uncertainty. Outside of requirements that mandate technologies often considered “enemies” of autonomy, very little work has been completed related to AVs. To fill the regulatory vacuum, NHTSA has issued several often-discussed “guidance” documents.

These include the Federal Automated Vehicles Policy (AV 1.0), Automated Driving Systems: A Vision for Safety (AV 2.0) and Preparing for the Future of Transportation (AV 3.0). Crucially, these are guidelines and are not legally binding; they provide little in terms of concrete, technical details outside of AV 3.0’s strong support for industry standards. If you were to ask yourself what’s holding up the creation of actual legislation, consider these three issues:

  • Talent. In its September 2016 policy directive (AV 1.0), the U.S. Department of Transportation noted that it needed to build a staff of in-house experts who are cutting edge in science, mathematics and engineering. Unsurprisingly, attention was paid to “greater flexibility on pay” and recruiting and retention practices. Plain and simple, NHTSA needs a larger, more technically proficient headcount.
  • The speed of automated-technology development. Any regulatory agency must remain nimble enough to understand the scope of the technology and how to create the appropriate framework for operation. This includes conducting research to develop and validate new performance metrics, establishing minimum or maximum thresholds for those metrics, developing test procedures and test equipment, and conducting notice-and-comment rulemakings to incorporate those metrics, procedures and tests into new FMVSS.
  • The time required for rulemaking. The Department of Transportation noted in its October 2018 Preparing for the Future of Transportation (AV 3.0) that the “pace of innovation in automated vehicle technologies is incompatible with lengthy rulemaking proceedings and highly prescriptive and feature-specific or design-specific safety standards.”

We did it to ourselves
It’s hard to deny that a lack of financial resources, the speed of technology, the time to create regulations and a hyper-partisan Washington are contributing factors to a lack of progress in substantive rulemaking. But a walk through history shows that there may be undercurrents – deeply influenced by manufacturers’ needs and wants – which created a less than receptive regulatory environment.

NHTSA earns its stripes: In 1966, Congress passed the National Traffic and Motor Vehicle Safety Act, legislation that gave NHTSA broad jurisdiction over all elements of design in motor vehicles. Principally, the Act empowered the new regulatory agency with three charges: compel the industry to pursue innovation in automotive technology; make rules to ensure citizens are safe in their vehicles; oversee the recall of defective vehicles. As part of the Act, NHTSA was given the power to issue Federal Motor Vehicle Safety Standards (FMVSS) targeted to reduce motor vehicle collisions and fatalities.

Manufacturers slow NHTSA’s progress: With its newfound authority, NHTSA rolled out regulations and accompanying test protocols. But not all of these were welcome news to the industry, leaving manufacturers running to the courthouse to challenge the scope and breadth of NHTSA’s power. One of the first legal challenges to the newly empowered agency came in 1972 to FMVSS 208, the standard addressing occupant crash protection. In Chrysler Corp. v. Department of Transportation, several OEMs and the Automobile Importers of America challenged the implementation of several provisions of the standard.

In 1978, the Supreme Court declined to hear an appeal of the decision of the Ninth Circuit in Paccar, Inc. v. NHTSA which addressed FMVSS 121, the standard addressing air brake systems. NHTSA created a substantial road-testing procedure which was challenged for its practicability and objectivity. The court determined that the “amorphous due care standard” was neither practicable nor objective. Overall, NHTSA lost six out of ten cases in the first fifteen years of its existence.

In their 1990 book, The Struggle for Auto Safety, Jerry Marshaw and David Harfst suggested that these cases, and the Chrysler case in particular, gave the public a sense that the industry was being forced to endure “costly interventions of a technically incompetent bureaucracy.” Further, it made businesses and the public believe that standards created a large burden on the industry. With a pro-business, pro-manufacturing perspective, rulemaking hit an almost insurmountable hurdle.

NHTSA shifts to enforcement power: While the courts found NHTSA’s regulations lacking in “reasonableness,” “practicability,” and “objectivity,” they did support the power of enforcement of recalls for safety defects. In contrast to the string of losses, NHTSA won two major decisions against General Motors in 1975 and 1977 dealing with wheel failures and steering linkages. In their critical assessment, Marshaw and Harfst called this “a reorientation of auto safety regulation, from science and planning to crime and punishment.”

Rulemaking runs out of gas: Between 1974 and 1986, experts and even NHTSA itself acknowledges that very little rulemaking occurred and that no significantly new safety rules emerged. In the years following, little progress arose from NHTSA itself, with Marshaw and Harfst dubbing this period (1987-2002), the “Ice Age of Rulemaking.” What became clear was that NHTSA rulemaking was more responsive to the demands of Congress and the executive branch.

Seeking to continue the support for the automotive industry and its manufacturers, the executive branch worked to remove regulatory barriers. Within the first sixteen months of the Reagan administration, NHTSA rescinded rules and ended rulemaking in twenty-one different situations. In contrast, most of the major rulemaking developments in this era arose from direct Congressional action, including ISTEA, TREAD and SAFETEA-LU.

What’s past is prologue
The pace of AV development continues unabated, and the regulators at NHTSA have not consented to be left behind. AV 3.0 may not have foreshadowed concrete rulemaking, but NHTSA is undertaking efforts to review the existing FMVSS for compatibility with AV technology. This is a slow process, but it shows a commitment to understand which of the FMVSS standards must adapt.

It seems ironic that an industry so desperate to constrain the early rulemaking power of NHTSA is currently calling out for new regulations in an even more complex technological area. History shows years of industry and regulators moving in separate circles, challenging each other at every chance. But it’s now time for us to move forward in a more collaborative approach, playing our role in creating the voluntary technical standards for automation that NHTSA highlighted in Appendix C of AV 3.0.

We should continue to show support and seek to positively influence legislation that will enable and encourage NHTSA to create feasible standards. We should partner, as an industry, with NHTSA to support the drafting of FMVSS that will not require fifteen years of court challenges and setbacks. Here, learning from the past is a necessary path to our greatest automotive innovations of the future.

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