Should Revisions to AV START Act Be Considered?

In 2017, the U.S. Senate introduced the American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act (the “AV START Act”). The main purpose of the Act is to establish an interim framework to facilitate the deployment of autonomous vehicles on U.S. roads and to permit the sale or commercialization of highly autonomous vehicles despite two key obstacles.

The first obstacle is that vehicles with automated driving systems cannot be certified as complying with some existing federal motor vehicle safety standards (for example, those predicated on a human driving the vehicle). The second is that there are no safety standards applicable to autonomous-vehicle design and performance. The Act aims to facilitate the ongoing development and deployment of autonomous-vehicle technologies while safety standards are developed.

To achieve this aim, the Act establishes the following framework:

START Stops in Senate

After the AV START Act breezed through committee, it stalled in the full Senate due to the objections of a few senators.  Their objections included:

With respect to temporary exemptions allowing the sale of autonomous vehicles, the Act amends an existing statute that allows NHTSA to grant an exemption allowing the sale of up to 2,500 vehicles for evaluating safety features that don’t comply with existing standards but which provide the same level of safety as vehicles that are compliant.

It can take NHTSA months just to publish notice of receipt of a petition for temporary exemption. It can take up to two years for it to review and rule on an exemption, and that is for exemptions to permit the sale of vehicles with things like a new type of headlight, not autonomous vehicles lacking steering wheels and pedals.

Under the Act, NHTSA will have only 180 days to grant or deny a petition for an exemption. And the exemption can be for up to 100,000 vehicles. Thus, the bill constrains NHTSA’s review of requests for exemptions that, if granted, will place a large number of previously unsaleable vehicles with new technologies on the road.

With respect to required submittal of a safety evaluation report intended to show that highly automated vehicles are safe, NHTSA’s prior comments about virtually identical safety self-assessments raises questions about whether the reports will accomplish what is intended. As indicated, in its Guidance 2.0, NHTSA considered such reports to be promotional pieces aimed at the public, not a rigorous technical report intended for submittal to NHTSA. Safety assessments that NHTSA viewed as promotional pieces are, under the bill, the principal method of assuring the safety of highly automated vehicles.

To be fair, the description of the safety evaluation report in the Act includes a requirement that manufacturers address, through a “documented assessment, testing and validation process,” each of the specified subject areas, which largely mirror the safety elements in Guidance 2.0. The documentation requirement does make the process more rigorous, but the nature of the “documentation” is not set forth and the Act prohibits NHTSA from “conditioning” the testing or sale of highly automated vehicles on “a review” of the contents of the reports.

Also, the report need only be filed upon testing and 90 days before the vehicle is sold, leaving little time for review.

While portions of the legislation may be seen as problematic, completely abandoning this interim framework in favor of the existing process of establishing autonomous vehicle-related safety standards and requiring manufacturers to self-certify their autonomous vehicles is not preferable because that would effectively delay the introduction of this important technology for 5-10 years. However, to push the bill over the line, the industry, regulators and the legislature should consider making some changes to the proposed law to make the analysis of the safety of autonomous vehicles somewhat more rigorous.  

A start would be to make NHTSA’s review of the safety evaluation reports less perfunctory. The law could grant NHTSA sufficient time to review the reports (and petitions for exemptions). It could permit NHTSA to condition the testing and sale of highly autonomous vehicles on the completeness of the reports. Along these lines, it could set forth minimum documentation requirements that support the performance and safety claims in the reports and allow NHTSA to reject reports that lack sufficient documentation or are generic rather than vehicle-specific.

Finally, autonomous vehicles have been under development for years and industry standards for autonomous vehicle technologies already exist. The timetable in the bill for establishing new safety standards could be advanced.

Richard Wilhelm is Of Counsel at Dickinson Wright PLLC’s Detroit office, where he focuses his practice on automotive law and product liability and personal injury. [email protected].