In response to a request for interpretation from Google’s Self-Driving Car Project, NHTSA has published a letter response clarifying Federal Motor Vehicle Safety Standards (FMVSS) in the context of a self-driving car. Interestingly, NHTSA concludes that the car itself (or its self-driving system) can be considered the “driver” for purposes of compliance with many of its safety regulations. NHTSA also states that it is considering initiating a formal rulemaking to update its regulatory definition of “driver” to specifically include a vehicle’s self-driving system as the “driver” for safety standard purposes, and then to update several safety standards to address the absence of a driver.

As an example, in the letter, NHTSA discusses the application of FMVSS No. 135, which contains requirements for service brakes and associated parking brake systems. Among the problematic aspects of that standard for a self-driving vehicle are that service brakes are to be activated by means of a foot control, and that the parking brake is to have an independent control operated by hand or foot. Google argued that because the self-driving vehicle system would control all aspects of braking, it would not be necessary or beneficial for safety for a human occupant to be able to brake the vehicle. NHTSA recognized the issue but concluded that it could not revise the standard by interpretation and “would need to commence a rulemaking to consider how FMVSS No. 135 might be amended in response to changed circumstances in order to ensure that automated vehicle designs like Google’s, i.e., ones that control all braking through an AI driver and do not provide brake controls to vehicle occupants, have a way to comply with the standard.”

Similarly, NHTSA discussed the application of the FMVSS on rear visibility, which generally requires that vehicles have external and internal rear view mirrors so a driver can see around and behind the vehicle. There, NHTSA also concluded that it cannot determine that the self-driving system meets the rear visibility standard without conducting a rulemaking. NHTSA stated that if the self-driving system’s rear visibility is based on sensors and Google wants those sensors to be deemed to meet the standard, NHTSA must first “adopt[] appropriate performance criteria and test procedures for evaluating whether the sensor input received by the SDS provides enough information to ensure that the SDS is as well informed by its sensors of the conditions behind and around it as a human driver of a conventional vehicle that meets the existing requirements of FMVSS No. 111 (or a standard providing equal or greater safety).”

Helpfully, NHTSA did suggest that, with respect to safety standards that cannot be met by a vehicle with a self-driving system and no human driver, including the rear visibility and braking system standards, that Google submit a “well-supported” exemption petition to allow for testing and use of the self-driving vehicle notwithstanding the failure of the vehicle to meet that exact terms of the standard.

The letter also includes two attachments with charts of 51 specific provisions in the safety standards that are implicated by the lack of a driver, lack of a steering wheel, and lack of gas and brake pedals, along with NHTSA’s tentative conclusions with respect to each as to whether the safety standard can be met by the self-driving system or whether a petition for exemption would need to be sought.

The interpretation letter provides helpful initial guidance to those currently attempting to develop self-driving vehicles for distribution and sale within the United States.

Of course, NHTSA recognition of a vehicle without a driver as compliant for FMVSS purposes is only one step in the process toward proliferation of those vehicles on the road. State motor vehicle administrators would also have to accept driver-less vehicles on the public roadways. In the only ongoing regulatory proceeding on point, initiated by the California Department of Motor Vehicles in December 2015, a licensed human driver must be in the vehicle at all times and capable of taking over the vehicle in an emergency. So far, NHTSA seems more willing than the states to allow self-driving vehicles to become a near-term reality.