U.S. DOT/NHTSA Issues Federal Highly Automated Vehicle Policy

On September 20, 2016, the U.S. Department of Transportation (“DOT”) issued its Federal Automated Vehicles Policy (the “Policy”) pertaining to both highly automated vehicles (“HAVs”) and, in part, lesser-automated vehicles. Though issued as agency guidance, rather than rulemaking, the Policy promises to be influential as to the substance of new state automated vehicle laws and best practices for automated vehicle testing and deployment.

In a potential deviation from its current self-certification regulatory structure, the Policy identifies additional authorities—including a pre-deployment approval process and cease and desist powers in case of imminent hazard—that DOT may request from Congress to address safety challenges. The Policy also advises that the National Highway Traffic Safety Administration (“NHTSA”) will, without change to its regulatory structure, investigate any safety concern associated with HAVs and “exercise its enforcement authority to the fullest extent.”

Although the Policy is largely effective immediately upon publication in the Federal Register (anticipated shortly), DOT seeks input from stakeholders within 60 days through the Request for Comment at www.nhtsa.gov/AV.

Safety Assessment Requirement

Though the Policy is non-binding, it states that NHTSA will request voluntary Safety Assessments, with specific acknowledgements by company officials regarding HAV compliance with each of the 15 elements of guidance listed below. NHTSA will also apply these elements of guidance, except those marked with an asterisk below, to vehicles at SAE Level 2. And it may, in the future, make Safety Assessments mandatory.

1. data recording and sharing
2. privacy
3. system safety
4. vehicle cybersecurity
5. human machine interface
6. crashworthiness
7. consumer education and training
8. registration and certification
9. post-crash behavior
10. federal, state and local laws*
11. ethical considerations
12. operational design domain*
13. object and event detection and response*
14. fall back to minimal risk condition*
15. validation methods

For HAVs already tested and deployed, Safety Assessments will be due within four months after completion of the Paperwork Reduction Act process; and for those introduced during or after that process, Safety Assessments will be due four months before public testing begins. New Safety Assessments would be required whenever significant updates are made to a vehicle.

New and Existing NHTSA Powers

The potential additional authorities identified by the Agency are a pre-deployment approval process, cease and desist power in case of imminent hazard, expanded exemption authority, and post-sale regulation of software changes. Each of these new authorities would require amendment of the National Traffic and Motor Vehicle Safety Act.

Under claimed existing authorities, the Policy indicates that the Agency may require pre-market safety assurance information about efforts to ensure safe introduction of HAVs “through systematic risk analysis, identification, classification, and reduction.” NHTSA will further attempt to assist HAV development by issuing interpretation letters and temporary exemptions from Federal Motor Vehicle Safety Standards (“FMVSS”) on an accelerated basis.

State Policy Recommendations

While acknowledging the respective federal and state regulatory responsibilities for motor vehicles and their operation, the Agency recommends a model regulatory framework (the “Model State Policy”) for states that wish to regulate procedures and conditions for testing, deployment and operation of HAVs.

The Model State Policy includes a requirement that manufacturers—broadly defined as OEMs, alterers and modifiers—submit to a designated state agency an application for testing stating that the HAV follows the Policy’s 15 elements of guidance and complies with FMVSS. The Policy recommends certain other requirements, such as testing only by trained persons designated by the manufacturer and reporting all crashes to the state.

In addition, the Model State Policy contemplates a “jurisdictional automated safety technology committee” staffed with representatives of the governor’s office, the motor vehicle administration, the state’s department of transportation, law enforcement agency, highway safety office, office of information technology, insurance regulator and the state’s offices representing the aging and disabled, toll authorities and transit authorities.

The Policy in full can be found here.

For more information, or if you have any questions, please contact Brendan Cahill (248-203-0721), Bill Kohler (313-568-6603), Paul Laurenza (202-906-8646), or your Dykema relationship attorney.