The National Highway Traffic Safety Administration (NHTSA) announced this past week a policy framework that will guide the development of future federal autonomous or driverless automobiles. The policy is being released as agency guidance as opposed to rulemaking in order to create an initial, flexible regulatory framework to guide manufacturers and other entities. The NHTSA, established by the Highway Safety Act of 1970, has worked for almost fifty years to reduce injuries and deaths on America’s roads. According to a recent report,
more than 30,000 people die on American roads every year, and with 94 percent of crashes tied to a human choice or error.
The government sees great potential in self-driving cars, and NHTSA chief Mark Rosekind has stated that they technology should be capable of cutting the annual number of traffic deaths in half by the time they’re ready for widespread use on American roads.
The new policy tackles several previously ambiguous areas of regulation. First, the report included a 15-point safety assessment that automakers should ensure their autonomous cars meet. Included in this assessment are sections on data recording, privacy, and cyber security, along with more traditional considerations like registration, crashworthiness, and operational design domain. Similar to other regulatory contexts, federal regulations will provide a floor for standards, but the Policy states that States will still retain vehicle licensing and registration, traffic enforcement and traditional vehicle regulations roles. The report’s suggestions for a model state policy doesn’t affect the NHTSA’s current regulatory toolbox that still includes interpretations, exemptions, notice-and-comment rulemaking, recall authority and defects and enforcement authority. The policy also makes suggestions for new regulatory tools, and adopts a five-level scale used for classifying autonomous technologies developed by the Society of Automotive Engineers. The new policy assessments would apply to all vehicles with an SAE level of 3 or higher, which can provide “full autonomous driving without human intervention in certain situations, such as highway driving, while still requiring a human driver to take over in other settings.” The NHTSA is also issuing a Request for Comment on the policy, in order to solicit further input on future policies and regulations from industry members.
These new guidelines provide immensely helpful direction for companies like Tesla, BMW, Infiniti, and Mercedes-Benz who are bringing autonomous systems to market despite clear regulations on the subject. According to John Greenough, senior research analyst for BI Intelligence, in the past three main barriers prevented growth in the driverless car sector:
- high technological component prices;
- varying degrees of consumer trust in the technology; and
- relatively nonexistent regulations. Advances in technology and increasing public exposure to autonomous vehicles have addressed the first two issues, and the NHTSA has just addressed the last issue.
Despite the clearer path that now exists for bringing these vehicles to widespread consumer use, the interaction between federal and state law may prove to be a major stumbling block before the systems can truly be implemented nationwide. For example, at the federal level, the NHTSA will not require a human driver — the computer can control the automobile. However, states could create regulations that would require a human driver to be able to take control of the vehicle in an emergency situation. Human control would likely require a steering wheel and pedals, features currently not required by the NHTSA’s policy. These differences in state and federal law, which would always be subject to change, create a moving target for autonomous vehicle manufacturers to try and hit. However, as some have suggested, “States could communicate more proactively with the NHTSA in the rulemaking and interpretation processes,” and add language to their own statutes that clarify that federal standards trump conflicting state laws.
Regardless of the potential issues that await federal and state lawmakers, some warn of potential issues regarding product liability, privacy, and damages that will face the legal profession. However, the NHTSA’s policy guidelines are an excellent first step into regulating autonomous vehicles, and there exists ample time for lawyers to give input on future regulations. Most importantly, the new policy guidelines provide flexibility for a field that could evolve faster than it could be regulated.