Dane Jaques, a partner at Steptoe & Johnson, LLP, and a member of Steptoe’s Energy and Transportation Groups, outlines ways in which autonomous vehicle developers and regulators can learn from unmanned aircraft systems
There are striking similarities between the nascent autonomous vehicle industry and the development of unmanned aircraft systems, or drones. Understanding the development of drones can help guide regulators and the autonomous vehicle industry as they navigate the political, legal and business landscape on the way to acceptance and implementation of autonomous vehicles.
There are several attributes that autonomous vehicles share with drones, including:
- Both require a modified regulatory scheme before they can operate fully
- Both rely on similar technologies
- Both must demonstrate their safety in order to be accepted
- Both must prove an economic case to be accepted
- Both technologies are highly disruptive
- Both face challenges posed by a patchwork of state and local regulation
- Both have challenges relating to sharing of data, privacy and cyber security
While all of these common attributes make the drone experience relevant to autonomous vehicles, it is the regulatory aspects that are the most urgent and potentially the most important. The successful implementation of autonomous vehicles requires a regulatory environment that promotes innovation and allows the development and implementation of key technologies. The successes and failures of the drone regulatory experience in the US present many lessons for the developers and regulators of autonomous vehicles.
In the US FAA Modernization and Reform Act of 2012 (‘the Act’), Congress tasked the US Secretary of Transportation to work with government and industry to develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. The existing FAA regulatory scheme did not allow the operation of unmanned aircraft, since operation would violate several regulations that were created with manned aircraft in mind. These regulations applied to drones in ways that ranged from critical to downright trivial, and include ‘seeing and avoiding’ other aircraft, formal certification of aircraft, mandating aircraft registration numbers at least 6” (15.25cm) high and having the flight manual onboard the aircraft, among others.
The successful implementation of autonomous vehicles requires a regulatory environment that promotes innovation and allows the development and implementation of key technologies
The Act also called for the Secretary of Transportation to determine whether certain drone operations could be safely conducted in the national airspace system before completion of the required plan and formal rulemaking. This addition to the Act was critical to the timely integration of drones. Rather than following the traditional, time consuming regulatory process, the FAA was able to ‘pick the low hanging fruit’ and allow some commercial drone operations before formal regulations were adopted or even proposed. This also allowed the FAA to gain real-world experience with drone operations before it tackled the formal rulemaking process.
At first, the FAA offered regulatory exemptions pursuant to the Act to individual persons and companies and allowed for very limited commercial use of drones as the FAA and the industry gained more experience, and as the rapidly-advancing technology became more mature and better accepted. These ‘Section 333 Exemptions’ provided relief from regulations with which drones could not reasonably comply, but placed rather significant restrictions on the operation of drones such as limiting operating altitude, establishing maximum vehicle weights, imposing airspace restrictions and limiting operations to daytime, not over people and within direct line-of-sight of the operator. This also had the benefit of allowing (requiring) the applicants to propose their own operations and restrictions, and make their own unique case that the proposed operations could be conducted safely.
Restrictions and exemptions
After the FAA approved certain drone operations through exemptions, it developed a new set of regulations, FAR Part 107, which essentially codified the terms of private exemptions the FAA had already been granting. Part 107 also includes a list of ‘waivable’ restrictions, such as daylight-only operation, inclement weather limitations, altitude restrictions and visual line-of-sight requirements. This resulted in the current system where regulations allow basic commercial drone operations without any exemptions or waivers from the FAA, but also allow more advanced commercial operations where the operator applies for one or more of the designated waivers and can demonstrate that it meets performance-based standards and can ensure operational safety. Based on its experience with these waivers, the FAA is already considering updated regulations for Part 107. It is also still possible to obtain regulatory exemptions for larger drones and operations that would violate regulations not listed as ‘waivable’, again provided that the applicant can establish an equivalent level of safety for the operations.
The primary criticisms of drone regulation have been the slow pace of regulations and extremely conservative acceptance of new technologies
The primary criticisms of drone regulation have been the slow pace of regulations and extremely conservative acceptance of new technologies. Drone technology has far outpaced the FAA’s regulatory framework and highly-useful technologies remained sidelined for many years.
Lessons for AV regulation
Autonomous vehicle regulators and industry members can learn valuable lessons from the drone experience. The first is that industry should be free to determine the direction and explore the limits of autonomous vehicles, subject to appropriate safety oversight. The Act and subsequent FAA regulation of drones provides a model for autonomous vehicle legislation and regulation because it encouraged innovation and allowed manufacturers and operators to develop key technology and propose their own methods of ensuring safe operation. Under a similar statutory and regulatory scheme, autonomous vehicle manufacturers and operators could propose exemptions and limitations consistent with available technology. The government’s role would be to decide whether the industry proposals ensure safety and, if so, grant the appropriate exemptions. As the government gains experience and knowledge from the exemption process, it can then contemplate formal regulations based on that experience.
A slight twist when it comes to autonomous vehicles is that the US federal government has exclusive control over the national airspace and certification of aircraft, but limited control over autonomous vehicle technology. In fact, if an autonomous vehicle is compliant within the existing Federal Motor Vehicle Safety Standards (FMVSS) and thus maintains a conventional vehicle design, there is no federal legal barrier to manufacturing and selling an autonomous vehicle. The FMVSS would, however, prohibit certain vehicle design characteristics such as cars without driver operated controls and cars that lack mandated warning systems, visibility and control force limitations.
Autonomous vehicle regulators and industry members can learn valuable lessons from the drone experience. The first is that industry should be free to determine the direction and explore the limits of autonomous vehicles, subject to appropriate safety oversight
Unfortunately, this lack of a comprehensive federal standard could allow a patchwork of harmful state and local regulations. While state regulation of autonomous vehicle licensing, insurance, traffic laws and terms for testing autonomous vehicles would be appropriate and unlikely to harm the development and deployment of autonomous vehicle technologies, state or local regulation of autonomous vehicle performance (e.g. design, construction, mechanical systems, software systems and communications systems) could create inconsistent standards that would make the manufacture and operation of autonomous vehicles unnecessarily difficult, stunt innovation and delay the implementation of autonomous vehicle technologies.
In charting the path forward for autonomous vehicles, governments should consider lessons learned from unmanned aircraft systems. The first is ‘do no harm’. Many states in the US and governments in other countries already allow autonomous vehicle testing on public roadways. This system is working and should not be disturbed. Federal legislation should, however, grant the US Department of Transportation exclusive authority to regulate the performance of autonomous vehicle technology and expressly preempt state and local laws in that area. In the US, the National Highway Traffic Safety Administration (NHTSA) should be allowed to grant all exemptions necessary to allow deployment of autonomous vehicle technologies and collect data needed to establish formal regulations. This type of regulatory scheme would allow the rapid development and implementation of beneficial autonomous vehicle technologies.
This article appeared in the Q3 2017 issue of Automotive Megatrends Magazine. Follow this link to download the full issue