To date, autonomous vehicle (AV) companies have been able to advance AV technology with little federal involvement. Now some advocates and industry participants wonder whether recent actions by the National Highway Traffic Safety Administration (NHTSA) to collect information on and investigate AV crashes indicate that hands-off approach is changing. 

NHTSA recently launched an investigation into Tesla's Autopilot system after Tesla vehicles experienced a string of crashes into emergency management vehicles. Last week, NHTSA furthered the investigation by requesting information from Tesla about how the Autopilot system detects and responds to parked emergency vehicles on highways. The agency also issued an order in late June requiring manufacturers of AVs or other vehicles with advanced driver assistance systems to report certain crashes on public roads within a day of when they learn of the incident. 

Some believe the recent actions represent a shift in the agency's previous hands-off approach to AVs and are a response to growing calls for federal legislation to ensure AV consumer safety.

"There seems to be mounting pressure for the federal government in their safety oversight role to have an increased engagement on autonomous and semi-autonomous vehicles," said Mark Fagan, lecturer in public policy at the Harvard Kennedy School.

Others disagree, saying NHTSA's investigations are not a sign of a federal crackdown on the industry, nor are they a sign that developers of the technology will face roadblocks that could stall industry progress or a signal that regulatory changes are imminent. 

The reality is likely somewhere in between the hopes of those looking for greater regulation and the fears of those who warn of the chilling effect regulation could have on the advancement of AV technology.

Investigation vs. regulation

"I think the first important distinction to make is the one between NHTSA's regulatory authority and NHTSA's enforcement authority," said Jason K. Levine, executive director at the Center for Auto Safety. "The recently opened investigation fits into their enforcement authority ... It's not a regulatory approach." 

Levine contrasts the Tesla investigation, however, with the June NHTSA order requiring the reporting of certain data on AV crashes. He believes the latter "may signal something about its regulatory approach with respect to automated technologies."

To date the U.S. Department of Transportation has only issued guidelines on how it plans to approach regulation of AV safety, data, cybersecurity, privacy and accessibility, among other priorities. Legislation advancing further federal AV regulations, such as the American Vision for Safer Transportation Through Advancement of Revolutionary Technologies (AV START) Act, died in Congress in 2018, and a subsequent draft was criticized for inadequate safety provisions.

"There hasn't been a lot of concrete regulation. The federal government has been largely permissive, and there are very few regulatory barriers toward [AV] testing and toward Level 2 systems," said Paul Lewis, vice president of policy and finance at the Eno Center for Transportation. "There have been some [National Transportation Safety Board] reviews of certain crashes, but that hasn't resulted in any kind of regulatory actions such as a recall or some kind of mandated safety requirement."

Calls for greater clarity

NHTSA's Autopilot investigation focuses, in part, on Level 2 technologies, which are considered driver-assistance features and not fully autonomous systems. 

"Level 2 systems are driver-assistance systems that are wholly different than the Level 4, fully driverless type systems that have a very, very different regulatory and safety paradigm," Lewis said. "Often, even some of the regulators and lawmakers get confused as to the different types of automation and their respective capabilities."

As Fagan, with the Harvard Kennedy School, put it, "We have come to the point where the definition of what is an autonomous vehicle actually makes a difference."

Product and technology feature terminology and definitions are one area where brands could indeed see change in the short term.

In April, Sens. Edward Markey, D-Mass., and Richard Blumenthal, D-Conn., sent a letter to NHTSA supporting that agency's and the NTSB's probe of a deadly Tesla crash. They requested recommendations and possible policy changes to improve automated driving and driver assistance systems. After NHTSA announced the Tesla investigation last month, the senators also sent a letter to the Federal Trade Commission requesting an investigation into what they call Tesla's "misleading advertising" for its Autopilot and Full Self-Driving (FSD) features. They are concerned that the company's claims of autonomous features incorrectly lead customers to believe the vehicles do not require human intervention, when, in fact, they do.

"Consumer education is a very important piece of automated vehicle marketing and branding. Too often, we assume that the drivers know what their responsibility is, and we assume that they've read the fine print and the agreements," Lewis said. "Tesla's Autopilot is marketed as fully self driving, which it is clearly not."

The senators' letters and NHTSA's investigations have raised questions about whether the federal government is targeting Tesla, while other industry players are distancing themselves from the company, according to The Verge. But experts explain that while investigations might name one company, any regulations that result would cover the entire industry.

"NHTSA is a very data-driven agency and ... they are collecting information," said Cathy Chase, president of Advocates for Highway and Auto Safety. "It just so happens that Teslas are crashing, and it's incumbent upon [NHTSA] to find out what's happening, why this is happening and if it's happening to Teslas more than other cars with these capabilities."

Levine with the Center for Auto Safety said a regulatory approach "wouldn't simply address Tesla's use of automated advanced driver assist systems. It would address the entire universe of those features for anyone who introduces them into the marketplace, whether that be Waymo or Ford or GM or Tesla." 

The road ahead

Given the lack of action to date and the slow pace of government, it's unlikely that the federal government will suddenly begin establishing AV rules in the coming months, experts say. If and when the regulatory environment does begin to change, it's unlikely to move fast enough to get ahead of the technology, Fagan says.

"They are not getting ahead of this. It is the reason that state and local governments have established regulations around testing, operations and the like, because there is no federal guideline," he said. "State and local governments are essentially filling that vacuum."

Plus, most proposed federal AV regulations to date are in line with industry goals because they center on AV companies' top priority — safety — Lewis said, not only to protect customers but also because untrusted technology won't sell.

"We see minimum performance standards as the baseline above which manufacturers of autonomous vehicles should innovate," Chase said. "This baseline will protect all of those who do have safe systems and weed out any manufacturers that are putting out unsafe systems, which threaten consumer confidence and therefore could slow consumer acceptance of the systems."

Lewis adds, "If we see a chilling effect, it's because the technology isn't safe in the first place, not because companies are being squashed by regulation."

"I think it's good that an agency like NHTSA is paying attention," he said. "It's an important step, and I think it's something that has been a long time coming."