“Self-driving cars could be allowed on UK motorways next year,” claimed a recent headline in The Guardian.
This isn’t accurate.
What the newspaper attempted to convey was that the United Kingdom’s government is attempting to determine whether or not automated lane-keeping driver assistance technology is legal. While not directly relevant to U.S. auto safety regulation, this episode underscores the growing gulf between automotive technology developers and safety regulators that must be addressed if self-driving cars and other novel technologies are to be permitted for use by the public in a timely fashion.
In the United States, motor vehicle safety regulations are primarily administered by the National Highway Traffic Safety Administration (NHTSA). These regulations, called Federal Motor Vehicle Safety Standards (FMVSS), contain safety and performance requirements that vehicles sold in the U.S.—or otherwise entered into interstate commerce—must meet. Many of the 73 FMVSS reflect engineering standards from a previous generation. As the automotive industry enters an era of more rapid innovation primarily in electrical and automation domains, the challenge of keeping FMVSS current will grow.
As a general matter, NHTSA does not create FMVSS out of thin air. Instead, it relies on voluntary consensus technical standards to guide its rulemakings, selecting, and then incorporating by reference technical standards largely developed by the private sector. It can take years to develop a consensus standard and then years more to complete an FMVSS rulemaking to incorporate that standard into regulation. And once that specific standard is incorporated, it tends to persist in regulation even when it is subsequently revised by the standards-developing organization. As a result, of the 257 nongovernmental consensus standards currently incorporated in NHTSA’s 73 FMVSS, half were written before 1980.
Unlike peer countries in Europe and Asia that impose a form of premarket approval known as type approval, compliance with U.S. auto safety regulations is self-certified by automakers. Matters not covered by existing FMVSS are generally open to automaker tinkering, provided their innovations do not interfere with FMVSS-required components and their operation. Increasingly, however, new technologies face barriers posed by existing FMVSS that have the effect of limiting the availability and performance of these technologies.
One illuminating recent example is adaptive driving beam (ADB) headlamps. ADB headlamps eliminate the high- and low-beam distinction by using a lamp array containing dozens of individual LED bulbs that switch on and off depending on the driving conditions. The LED bulbs are computer-controlled to provide maximum visibility while minimizing glare to oncoming vehicles, vehicles that are detected by onboard sensors. Drivers at night can then better avoid pedestrians, animals, or other hazards that may appear on roadways—enjoying the safety benefits of high-beam illumination without temporarily blinding oncoming drivers. This technology was widely adopted in Europe and Japan during the previous decade.
Enter FMVSS No. 108. The most significant headlamp technical standards incorporated in FMVSS No. 108 were published by the Society of Automobile Engineers (now SAE International) in the 1960s. These standards presume discrete high- and low-beam headlamps. Regardless of whether or not the switch is manual or automatic, federal regulation requires that the headlamps in your car must be capable of binary switching between higher and lower illumination settings.
In 2013, Toyota petitioned NHTSA to amend FMVSS No. 108 to permit ADB headlamps. SAE International and automakers argued that provisions related to semiautomatic beam-switching systems could allow ADB headlamps to be sold in the U.S., but NHTSA disagreed. As a result of this regulatory resistance, SAE International published a new ADB headlamp standard in 2016, Recommended Practice J3069, to provide NHTSA with the necessary material to amend FMVSS No. 108 and legalize ADB headlamps.
In 2018, NHTSA finally granted Toyota’s 2013 petition and published a notice of proposed rulemaking to amend FMVSS No. 108 to incorporate SAE International’s ADB headlamp standard. The final rule has still not been published, although NHTSA currently estimates publication in October 2020. Total elapsed time from Toyota’s initial request and NHTSA’s implementation is seven years and counting.
This experience with ADB headlamps suggests NHTSA will have a difficult time modernizing its FMVSS regime to permit advanced automated driving. Technical standards and standardized test procedures related to self-driving technologies remain under development. NHTSA itself has estimated that up to 45 percent of its FMVSS may present obstacles for developers seeking to self-certify their automated driving systems. If left unchanged, U.S. auto safety regulation may significantly delay the wide deployment of what are expected to be far safer automated vehicles.
Congressional reform is likely needed. One way to better ensure that FMVSS reflect modern technologies, technical standards, and test procedures has already been suggested by Congress in a non-automotive setting.
In regulating all-terrain vehicles (ATVs), Congress requires the Consumer Product Safety Commission (CPSC) to use an ATV standard developed by the American National Standards Institute (ANSI) and requires ANSI, or a successor organization, to notify the CPSC when it is considering a revision of the standard. When ANSI or its successor notifies the CPSC of a revision to ATV safety standard ANSI/SVIA–1–2007, the CPSC has 120 days to either initiate a rulemaking proceeding “to include any such revision that the Commission determines is reasonably related to the safe performance of all-terrain vehicles” or “notify [ANSI] of any provision it has determined not to be so related.”
Congress could amend Chapter 301 of Title 49 of the U.S. Code to include a similar update trigger mechanism for NHTSA’s FMVSS. It wouldn’t force NHTSA to adopt new or revised technical standards in regulation, but it would force a decision on whether to adopt or not—and if not, explain why not.
In addition to allowing superior, safer technologies to come to market more rapidly, refocusing NHTSA on keeping its auto safety regulations reflective of reality could reduce its discretion to initiate extraneous rulemaking projects and provide greater transparency to the motor vehicle safety regulatory process. It wouldn’t be a silver bullet and there remain unanswered questions related to the resource needs of NHTSA to carry out this reformed process, but it could reduce the increasing divide between developers and regulators while promoting innovation and the resulting benefits to society.