By Mark Pratzel on October 7, 2016

On September 20, 2016, the National Highway Traffic Safety Administration (“NHTSA”) issued the Federal Automated Vehicles Policy, first Federal policy on automated vehicles. Focused on “highly automated vehicles” (HAV),[1] the guidelines show that the Federal government sees automated car technology as a safer alternative to cars driven by humans.  “We envision in the future, you can take your hands off the wheel, and your commute becomes restful or productive instead of frustrating and exhausting,” said Jeffrey Zients, director of the National Economic Council, noting that automated vehicles “will save time, money and lives.”

The guidelines are divided into four categories:

I. Vehicle performance guidance for automated vehicles. These guidelines will serve as a set of best practices for automakers to follow and will evolve as the technology does, according to the U.S. Department of Transportation (“DOT”).

II. Model state policy. The model policy seeks to promote consistency in state autonomous vehicle regulations. A manufacturer should be able to focus on developing a single HAV fleet, rather than 50 different versions to meet individual state requirements, according to the guidelines.  However, the guidelines suggest that allocation of liability among HAV owners, operators, passengers and manufacturers in accident scenarios should be addressed and governed by state law, which seems appropriate as a matter of state versus Federal jurisdiction.

III. Regulatory tools. NHTSA has the authority to recall any vehicle or piece of automotive equipment in the US that it deems to be unsafe. It will be able to provide automakers with special HAV-related interpretations of existing regulations when requested within 60 days and create autonomous car exemptions within six months.

IV. New authorities. The DOT has not committed to any new ways of working, but it may look at how other government agencies handle complicated technological regulation.  For example, the Federal Aviation Administration uses a pre-market approval process to “regulate the safety of complex, software-driven products like autopilot systems on commercial aircraft, and unmanned aircraft systems,” which the DOT says could potentially apply to the way it regulates self-driving cars.

The policy on automated vehicles has already received positive reviews across the industry. Experts have said that the guidelines are reasonable and flexible with respect to technology developments while also ensuring safety, are not overly restrictive, and should allow this technology to grow without hindering advances.  They indicate that DOT supports this technology and would like to see it utilized throughout the country.

A concern expressed by Bryant Walker Smith, one of the leading experts on the legal issues of autonomous vehicles, is whether the model state policy will be “permissive or restrictive, particularly with respect to actual demonstration projects and even commercial deployments.” States regulations may vary widely, leading to a lack of national uniformity creating difficult issues for manufacturers who could be required to make 50 different versions of their autonomous vehicles to comply with individual state requirements.

There is also concern about the NHTSA recall authority, particularly as to how it will determine what constitutes an unsafe semi-automated driving system. “Like any such authority,” one expert notes, “if it errs too much on the side of caution, or is too broadly or indiscriminately applied, it could slow innovation.”

The guidelines represent an important first step in the creation of a legal framework for the development and operation of autonomous vehicles. They provide a foundation for national and state legislation governing the myriad issues that the new technology will create, many of which have yet to be identified.\r\n

[1] As defined in the NHTSA guidelines, HAVs include vehicles “for which there is no human driver at all, or for which the human driver can give control to the HAV system and is not expected to perform any driving-related tasks for a period of time.”