February 1, 2022
FIVE PRINCIPLES FOR REGULATION OF HIGHLY AUTOMATED VEHICLES
Philip Koopman∗ & William H. Widen**
Providing economic opportunities and jobs is important, but these benefits alone are not an equitable and fair exchange for the use of public highways as a testing ground, and the exposure of the public to an increased risk of harm from highly automated vehicle (HAV) accidents during development. The principles below summarize concrete actions that HAV legislation should include to provide an appropriate balance.
Typeset Acrobat version here: https://archive.org/details/av-regulation-principles-koopman-widen-2022-02-01
1. Safety
Operational
Safety: commit
to a testing and deployment standard for automated driving system (ADS)
performance of “substantially better than the average unimpaired human
driver” (AUHD) rather than the vague “sufficiently safe” criteria
currently in use by HAV companies.
Metrics: state the metric(s) used to
make the performance comparison between an ADS and the AUHD.
Industry
Standards: commitment
to follow published professional industry standards appropriate for the type of
HAV operation (i.e., testing, trials or deployment) including: SAE J3018, UL
4600, ISO 21448 and ISO 26262, as informed by AVSC00001201911 AVSC Best Practice for safety
operator selection, training, and oversight procedures for automated vehicles
under test and
AVSC0007202107 AVSC Information Report for
Adapting a Safety Management System (SMS) for Automated Driving System (ADS)
SAE Level 4 and 5 Testing and Evaluation.
Regulatory time-out: allow all regulators (federal, state, and local) to
temporarily enjoin HAV operations (including testing) as a response to discrete
events which raise safety concerns and to revoke testing permits for significant
adverse events as well as for patterns of unsafe HAV operations or operations
that violate law.
2. Responsibility for Loss (Compensation)
Duty
of Care: Any company or person operating
an AV should, by statue, owe the public a non-delegable duty of care for safe operation.
Insurance
Levels: Use a
required insurance amount not less than the US DOT’s statistical value of a
human life
($11.6 million per person in 2020, adjusted annually). Do not allow
self-insurance by HAV companies which are not cash flow positive. Establish
clear single-risk limits and treatment of multiple injuries/fatalities in a
single event, with separate treatment for special cases, such as truck
platooning which might be expected to cause greater harm on a per incident
basis.
Owner/Occupant
Liability:
Clarify the liability of an owner/occupant of an HAV for loss caused when an
ADS is properly engaged. May an injured party sue the owner/occupant in the
absence of negligence and collect against the owner’s insurance policy or are
claims limited to ADS designers, manufacturers and upfitters for defects?
Explain interaction with negligence claims for maintenance, upgrades, and
installation failures.
Single
Collection Point for Plaintiffs: Allow a plaintiff to collect from a single responsible
defendant in full, with joint and several liability and a right of contribution
from other responsible parties (regardless of whether the liability is based in
negligence or product defect).
Insurance
Policy with Plaintiffs in Position of a Named Insured: Allow plaintiffs to make a
claim against HAV company insurance policies as if they were a named insured to
facilitate prompt payment of medical bills and other amounts so plaintiffs do
not face financial pressure to settle for less than full compensation.
Eliminate Barriers to Collection for Full Damages: As applicable, lift caps on
damage collection by potential plaintiffs with lower cost insurance policies,
such as limited tort option policies in Pennsylvania.
3. Transparency
Periodic
reporting: require
timely publication of HAV safety performance, including how actual performance
of an HAV compares with promised performance relative to the AUHD.
Crash
Data: require
timely publication of all crash data and police reports for any incident
involving a HAV.
Publicize
testing, trials, and deployment plans: a requirement to issue publicly a testing plan prior to
commencement of testing, trials or deployment which explain how the HAV company
addresses safety, responsibility for loss, transparency, inclusion, and
non-discrimination. Allow local regulators to review, comment upon, and approve
the testing plan.
Identification
of times, manner and locations for testing and trials: requirement to post
information about the times and locations for testing and trials so the public
understands areas of increased risk.
Don’t
Promulgate Myths:
advocates for an HAV law, rule or regulation, should not use marketing and
outreach materials containing untruthful or misleading statements or material omissions,
such as the myth that 94% of serious crashes are caused by human error.
Disclose
a Harm Now, Benefits Later Justification for Deployment: If an HAV company plans to
deploy HAVs at scale when the technology does not perform substantially better
than an AUHD, or its level of performance cannot be determined with reasonable
certainty, disclose this fact in the testing plan so the public can evaluate a
policy which exposes the public to harms on the promise of future improvements
to HAV technology.
4. Inclusion
IEEE
7000: require
HAV companies to follow the IEEE 7000 Standard Model Process for Addressing
Ethical Concerns procedures to identify all interested parties affected by the
testing, trials, and deployment of HAV technology (including emergency service
responders, hazardous material transporters, and those in a work zone). Address
the concerns of all stakeholders in public plans and with respect to testing, trials,
and deployments.
Adaptation
to Local Conditions:
give municipalities the power to limit HAV operations based on time, manner,
and location to account for local conditions (such as preventing truck
platooning in certain neighborhoods or driverless trials in school zones;
account for local special events; account for recent incidents which present
safety concerns); remove blanket pre-emption by state law to allow municipalities
to exercise this power.
Review
Global Approaches to HAV Regulation: as part of approving any bill, review the recommended approaches
to HAV regulation taken in other jurisdictions, such as the joint report of the
UK law commissions on automated vehicles, and the EU’s ethics guidelines for the
development of trustworthy artificial intelligence.
5. Non-Discrimination:
No
Concentrated Operations in Areas of Concern: Municipal review of both public testing and trial plans
and the time, manner and locations for testing and trials to ensure that
at-risk communities, such as low-income neighborhoods, do not experience a
disproportionate increased risk of loss from HAV operations (without mitigating
the identified risk) as opposed to other communities not deemed to be at
special risk.
Mitigation
Strategies: If
a need arises to concentrate certain types of testing and trials in an at-risk
community, use other means to mitigate the adverse impact of the
concentration—such as conducting testing only with an on-board safety driver,
use of two safety drivers; or elimination of uncrewed trials.
Special
Review of Related Laws:
review applicable existing state and local laws to identify situations in which
HAV operations (including crashes) might adversely impact low-income and other
at-risk persons, such as limited damage collection for low-cost policies, and
the difficulty and expense of pursuing a product defect claim given legal
complexity and number of possible defendants.
Justice40: situate and harmonize non-discrimination
efforts within the broader framework of social justice and equity values,
including those contained in the Federal Government’s Justice40 initiative.
