Testimony before the District of Columbia City Council

Testimony of Ariel Wolf on behalf of the Self-Driving Coalition for Safer Streets

Committee on Transportation and the Environment

Council of the District of Columbia

July 2, 2019

Councilmember Cheh and Members of the Committee on Transportation and the Environment, my name is Ariel Wolf, and I am a Counsel in the regulatory practice at Venable LLP.  I also serve as Counsel to the Self-Driving Coalition for Safer Streets (“Coalition”). Thank you for giving me the opportunity to testify today on B23-232, the Autonomous Vehicles Testing Program Amendment Act of 2019, and B23-248, the Autonomous Vehicle Amendment Act of 2019.

Today I will provide some background on the Coalition and U.S. DOT’s approach to regulating autonomous vehicles, and our recommendations in light of the District’s efforts to provide a path forward for the testing and use of these vehicles. The Coalition previously submitted a letter and model legislative text to this Committee in advance of the roundtable held on January 31, 2019, entitled “The Integration of Automated Vehicles in the District,” and we direct the Members of this Committee to that submission for additional information supplementing my testimony today. We look forward to continuing to be constructive participants in the legislative process. 

The Coalition was founded in April of 2016 by Ford Motor Company, Waymo (formerly Google’s self-driving car project), Lyft, Uber, and the Volvo Car Group.  We are focused on enabling the development and deployment of fully autonomous vehicles (“AVs”). This cross-section of companies representing technology, automobile manufacturing, and transportation network companies demonstrates the widespread interest in developing AV technology across different sectors.  Despite their different backgrounds, the companies came together to form the Coalition because of their commitment to bring the tremendous potential safety and mobility benefits of self-driving cars to consumers in a safe and swift manner.

The Coalition strongly believes that fully autonomous vehicles have the potential to advance the personal safety of passengers and other roadway users.  The National Highway Traffic Safety Administration (“NHTSA”) estimates that more than 37,000 Americans died in motor vehicle crashes last year. More frustrating is that we have seen an upward trend in fatalities in the past 5 years after observing significant reductions prior to that.  An estimated 90 percent of all crashes are in some way linked to human error (whether driving drunk, distracted, fatigued, or at excess speeds). Fully autonomous vehicles have the potential to reduce fatal traffic crashes because they remove human error from the driving process entirely.  

Self-driving cars also hold tremendous promise to transform mobility for the millions of Americans who are excluded from traditional transportation options, including members of the disabled or elderly communities. This technology could help broaden economic participation and support greater independence.

In light of this great promise, it is perhaps no surprise that states and the federal government have taken an acute interest in utilizing their respective authorities to craft a regulatory environment that helps facilitate the safe and expeditious deployment of autonomous vehicle technology: the states by regulating vehicle operations, and the federal government by exercising its exclusive authority over vehicle design, construction, and performance.  

As a threshold matter, it is our view that if the District chooses to take legislative or regulatory action with respect to AVs, such action should remove impediments to the safe testing and deployment of AVs, create a pro-competitive environment and a level playing field for the emerging AV industry, and focus on rules-of-the-road. More than a dozen states have taken this balanced approach to the testing and deployment of AVs in their jurisdictions.

The federal government also plays an important role consistent with its Congressional mandate to establish a uniform, national approach on vehicle design safety.  The U.S. DOT has issued multiple guidance documents charting a particular path toward validating safe autonomous technology. DOT has affirmed that its enforcement authority extends to AV technology, and it has also expressed the affirmative determination that certain aspects of the regulatory environment should remain fluid while this critical technology continues to take shape.

To that end, we are grateful for the Committee's interest in establishing a policy framework to improve safety and mobility, as well as to facilitate innovation. We would like to work with the Committee moving forward on areas of concern, several of which are as follows.

B23-232, the Autonomous Vehicles Testing Program Amendment Act of 2019

• Today, many AV companies are pursuing truly driverless approaches that do not rely on a human driver of any kind, instead of relying on an on-board test operator or an off-board operator who is capable of remote driving. Where an AV system experiences certain types of failures, a Level 4 or Level 5 vehicle is capable of achieving a “minimal risk condition,” such as coming to a complete, safe stop. We suggest creating a pathway in this bill for truly driverless testing.

• For decades, NHTSA has required that manufacturers self-certify that vehicles adhere to a common set of motor vehicle safety standards. We are concerned that the bill suggests a departure from this longstanding approach. 

• While the Coalition recognizes the importance and benefit of collecting data, “disengagements” in many cases are not an accurate measurement of AV progress, since whether an AV disengaged may not be linked to concerns about the safety of the self-driving system (e.g. hygiene breaks). This speaks to the fact that the methods and the thresholds manufacturers use to collect data about the status, operation, and performance of their vehicles are often not consistent and therefore would not be easily compared.

• We note that the provision on data recorders relates directly to an existing NHTSA regulation codified at 49 CFR Part 563, and we suggest that the Council modify the bill’s  provision to align with this rule.

• We ask the Council to consider allowing for automatic renewals (subject to rescission, of course) of test permits as a means of reducing unnecessary burdens on companies that have already received approval from the District to test. On that note, we also ask that the Council consider amending the bill to allow for semi-annual reporting instead of quarterly reporting. 

• Our other suggestions for this bill address provisions that would be duplicative or burdensome without commensurate safety benefits. An example would be the provision that would require an applicant to certify that, in addition to having each of the elements themselves, the applicant also has quality controls in place to ensure compliance with the elements. Another example would be requesting data from AV operators that is already included in a Voluntary Safety Self-Assessment prepared for NHTSA pursuant to guidance.  We would urge the Council to review the bill closely for other provisions that could be adapted or removed to reduce unnecessary burdens on AV operators. 

B23-248, the Autonomous Vehicle Amendment Act of 2019

Our comments on specific provisions of the bill are below, but first we wanted to make two threshold points. First, we strongly support this bill’s endorsement of a path to commercial deployment of AVs. For companies like our members, the massive investments in testing in a new jurisdiction are only viable if coupled with a realistic path towards eventual commercial, driverless deployment. We are pleased that this legislation reflects this reality and that the District is poised to move in this direction.  

At the same time, while we are supportive of the approach this bill would take, we want to highlight several provisions that would hinder the safe deployment of AV technology and therefore impede the goal of the bill. For example, the bill does not clearly authorize the deployment of fully driverless vehicles (including through shared fleets, available through digital-dispatch); it would impose a certification model that departs from the traditional motor vehicle model; it would create liability and insurance requirements that are neither needed nor useful to assure redress for injuries; and other items that we describe in further detail below. 

• As a basic construct, we ask that the Council include additional language and conform the existing language to reflect the approach to AV deployment that has been taken in other states, such as Florida and Nevada. Specifically, we ask that the bill permit AV deployment provided that the AV: (1) achieves a minimal risk condition if it is unable to perform the entire dynamic driving task within its operational design domain; (2) complies with existing traffic and motor vehicle safety laws and regulations for the area; and (3) bears the manufacturer certification label indicating compliance with the Federal Motor Vehicle Safety Standards (FMVSS). 

• The bill would impose what appear to be vehicle design and performance requirements, which should be set exclusively by Federal regulators. For example, the bill would require an AV to have a system to notify the passenger if a failure is detected when the AV is engaged. We strongly urge the Council to review and revise the bill to conform to the longstanding exclusive domains of the federal and state governments in the regulation of motor vehicles: design, construction, and performance on the one hand, and operation, licensure, and insurance on the other. 

• The bill contains provisions related to manufacturer, driver, and third party liability. Existing tort law already contains well-established principles to allocate fault and apportion liability among parties. These principles have been applied to countless new technologies in the past and have been applied to AVs in use across the rest of the United States. There is no reason to believe that these well-established principles cannot be applied in cases involving autonomous vehicles and generate fair outcomes. We urge the Council to remove language that would disturb reliance upon these principles. All of the states that have established frameworks for testing and deployment have relied on existing law and have not created new liability principles specific to AVs.

• As noted with respect to the testing bill, above, we recommend that the Council ensure that the bill reflects a self-certification model for compliance with the FMVSS, consistent with federal law.  

• We propose to modify the definition of “alterer” to align with the definition that is contained at 49 CFR 567.3.

• We would modify the language to ensure that the authority of the DMV to decline to register, suspend, or revoke registration should be tied to whether the vehicle poses an unreasonable risk to safety.

• We would remove the provision related to pre-dispute arbitration agreements since this is preempted under federal law.  

Conclusion

The Coalition appreciates the opportunity to share our views on these bills and on the testing and deployment of fully autonomous vehicles in the District. We look forward to continued collaboration with you on reasonable policies that support safety and innovation moving forward.