The new Federal Automated Vehicles Policy (FAVP) reflects the latest regulatory attempt to guide the development and deployment of driverless motor vehicle technology in the United States. Issued by the National Highway Traffic Safety Administration (NHTSA) in September 2016, most of its provisions went into immediate effect, but none of them are mandatory.
The NHTSA recognizes that the pace of technological innovation is running faster than the government’s ability to effectively regulate it, so the current FAVP provides a framework for future regulation rather than standing as the last word on what’s expected from manufacturers and high-tech developers. The agency also anticipates issuing an updated version of the Policy later in 2017, with the next version expected to reflect both public comment and industry experience under the current FAVP.
Voluntary Compliance with Safety Assessment Procedures
The most important provisions of the FAVP discuss what manufacturers should do to bring automated driving technologies to public roads for testing and eventual consumer or commercial use. Unlike aircraft, motor vehicle manufacturers do not need to submit sample units for government inspection and approval before a new vehicle model is approved for the market. Instead, auto and truck manufacturers self-certify that their vehicles have met all applicable Federal Motor Vehicle Safety Standards (FMVSS), subject to possible later inspection and testing by government regulators.
In other words, as far as safety goes, new vehicle models are generally designed and produced on the honor system — manufacturers accept responsibility for ensuring that their vehicles are safe to operate and fully compliant with federal safety rules. For the time being, at least, highly automated vehicle (HAV) technologies will be treated the same way under the new federal Policy.
The new FAVP describes a safety assessment process that manufacturers are expected but not yet required to follow in testing and operating HAV hardware and software technologies. Much of the FAVP describes in detail what manufacturers should show as to the performance and safety of their vehicles at a given level of automation. (Levels 1 and 2 require a human driver’s active engagement, while Levels 3 to 5 increase the extent of automation up to truly driverless operation.)
When testing is completed, the manufacturer prepares a detailed Safety Assessment Letter addressing 15 different performance areas (e.g., crashworthiness, cybersecurity, failsafe systems) for NHTSA review and possible comment. The agency expects manufacturers to submit the Safety Assessment Letter at least four months before actual road testing of an HAV system.
It’s essential to note that in this first version of the federal Policy, the HAV safety assessment process is not mandatory. As the FAVP goes through successive versions, mandatory compliance might become the rule. At this early stage, however, the NHTSA prefers nonbinding guidance to strictly enforceable regulation while the industry and the public gather experience with HAV technologies. For one thing, the agency was able to issue its guidance much more quickly than a formal rulemaking process would have allowed.
Recommendations for State Motor Vehicle Regulators
Other sections of the FAPV discuss other vital aspects of HAV operation on American highways. There is a discussion of the way traffic safety responsibilities are shared between the federal government and the 50 states, with detailed HAV recommendations for state lawmakers and motor vehicle department administrators. While historically the feds have regulated the vehicles and the states have regulated the drivers, the transfer of driving tasks from humans to software and machines can obviously complicate this division of responsibility. Once again, the FAVP does not prescribe what the various states should do specifically, but instead speaks in terms of process, policy input, and broad safety objectives.
One specific example of the federal-state division of responsibility has to do with insurance coverage. Up to now, matters of tort liability related to traffic accidents have been left to state law, and the vast majority of accident cases are resolved in the state courts. Each state also has its own laws related to mandatory liability insurance for individual drivers. The FAVP recommends that the states consider whether other parties connected to HAV technology, such as remote operators, high-tech firms, or the vehicle manufacturers themselves should be required to carry liability insurance for accidents involving highly automated vehicles.
An early example of potential conflict between federal rulemakers and state administrators came up in California last October. Soon after the NHTSA released its new Policy, the California Department of Motor Vehicles issued a set of proposed state HAV rules that conflicts in a few significant ways with the FAVP. One important conflict has to do with the voluntary 15-point safety assessment described in the federal Policy.
Under California’s proposed rules, that federal safety assessment would be mandatory for any manufacturer interested in testing highly automated vehicles on California roads. As a practical matter, this would effectively make the FAVP — the first public draft of a federal initiative that is still a work in progress — binding on all HAV manufacturers. It remains to be seen whether the proposed California DMV rules will become final.
Staff and Funding Challenges for the NHTSA
The FAVP also discusses some institutional limitations on the NHTSA’s ability to regulate the development of HAV technology. Even under a voluntary safety assessment system, the agency might now lack the personnel necessary to review and comment usefully on manufacturers’ Safety Assessment Letters or requests for exemptions, at least at the level of staffing necessary to process dozens or hundreds of submissions at the same time.
Another hot issue surrounds the possibility that the NHTSA might seek authority from Congress to require pre-market approval for HAV systems. It is unlikely that the new Secretary of Transportation would support this move over vehement industry opposition, especially when the agency acknowledges that it would need substantial new funding to handle pre-market safety testing and approval procedures.
If the NHTSA stays on track to issue a second version of its automated vehicles policy this year, it will be very interesting to see how further technological innovation and actual testing experience will inform the next regulatory response to our ongoing transition toward automated driving.
