​​Driverless vehicles are no longer found only in science fiction. The reality is that driverless vehicles are here and on the verge of being introduced in more extensive ways. However, there is a notable lack of uniformity concerning the laws and regulations governing these vehicles.

Instead, driverless vehicles are governed by a patchwork of inconsistent state laws and regulations. In response to the situation, the United States Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) released the Federal Automated Vehicles Policy (FAVP), providing guidance for stakeholders in the design, development, testing and deployment of automated vehicles.

Since its release, the policy has received a mixed reaction from a variety of consumer and industry groups. There has been both praise and criticism from these groups.

The FAVP begins by adopting the Society of Automotive Engineers' (SAE) definitions and describing the five different levels of automation that can be incorporated into a vehicle:

  • SAE Level 0: No automation;
  • SAE Level 1: Driver assistance;
  • SAE Level 2: Partial automation;
  • SAE Level 3: Conditional automation;
  • SAE Level 4: High automation; and
  • SAE Level 5: Full automation.

The policy considers vehicles at SAE Levels 3-5 as “Highly Automated Vehicles” (HAVs). NHTSA expects manufacturers to classify their vehicles in accordance with these definitions.

The FAVP is divided into four parts: (1) vehicle performance guidance for automated vehicles; (2) model state policy; (3) NHTSA’s current regulatory tools; and (4) modern regulatory tools.

Vehicle Performance Guidance For Automated Vehicles

The FAVP outlines a voluntary 15-point safety assessment to be utilized in the design, manufacture and deployment of HAVs. The areas covered by this safety assessment include:

  • Data Recording and Sharing: Manufacturers and developers should possess documented processes for testing, validating and recording system malfunctions, accident data and positive outcomes, such as crash avoidance.
  • Privacy: Manufacturers and developers should follow best practices that ensure transparency, choices for data collection and retention, respect for context, minimization and de-identification of sensitive data, data protection, data integrity and access, and accountability.
  • System Safety: Manufacturers and developers should adopt systems engineering approach to support reasonable system safety, such as building in redundancies to compensate for system malfunctions or failures.
  • Vehicle Cybersecurity: Manufacturers and developers should adopt cybersecurity best practices and share information on vulnerabilities.
  • Human Machine Interface: Manufacturers and developers should consider how HAVs communicate information to the driver, passengers, and other road users external to the vehicle, such as pedestrians and bicyclists.
  • Crashworthiness: Manufacturers and developers should verify that occupants of HAVs and other road users will be protected in crash situations according to NHTSA’s crashworthiness standards.
  • Consumer Education and Training: HAV employees, dealers, distributors and consumers should be educated concerning the capabilities and limits of HAV technologies.
  • Registration and Certification: Manufacturers and developers should submit and register identifying and descriptive information about HAVs. They should also provide on-vehicle means for communicating key HAV capabilities to human drivers, including information on post-sale software updates.
  • Post-Crash Behavior: Manufacturers and developers should have a process for assessing, testing and validating HAVs for re-deployment after a crash.
  • Federal, State and Local Laws: Manufacturers and developers should have a plan for complying with federal, state, and local laws.
  • Ethical Considerations: The three driver objectives of safety, mobility and legality may conflict and manufacturers and developers should develop algorithms resolving these conflicts “transparently using input from Federal and State regulators, drivers, passengers, and vulnerable road users.”
  • Operational Design Domain: Manufacturers and developers should determine and define how and where HAVs should function and operate, such as roadway types, geographic areas, speed ranges, weather and lighting conditions and other factors.
  • Object and Event Detection and Response: Manufacturers and developers should possess processes for determining how HAVs recognize and respond to various events and conditions, such as merging into traffic or responding to road signs and traffic signals.
  • Fall Back (Minimal Risk Condition): Manufacturers and developers should possess processes for returning HAVs to minimal risk condition (i.e., human driver control) in the event of a system malfunction, or other problematic situations.
  • Validation Methods: Manufacturers and developers should develop processing for testing, validating and verifying that HAVs will perform as expected.

The NHTSA suggest that HAV manufacturers and developers submit a safety assessment describing their compliance with the criteria. It also suggests that HAV manufacturers and developers share safety information.

Model State Policy

The FAVP addresses the division of responsibilities between federal and state governments, and suggests a model policy depending on the operator of the vehicle.

Under the policy, the NHTSA has regulatory authority over setting and enforcing national safety standards and issuing guidance concerning how to meet those standards, while the states retain their authority for licensing human drivers, registering vehicles, setting and enforcing traffic laws and regulating vehicle insurance and liability. In short, as the vehicle control shifts from the human driver to the vehicle’s software, jurisdiction shifts from the states to the NHTSA.

One of the central goals of the policy is create a consistent national framework with compatible state laws. The policy recommends states begin by identifying and designating a lead agency responsible for consideration of testing of HAVs and establish a “jurisdictional automated safety technology committee.” The lead agency should develop an internal process that includes applications and permits for manufacturers to test HAVs in the jurisdiction.

In their applications, manufacturers should submit an application for testing that states that each vehicle that will be tested follows the guidance set forth by the NHTSA and meets applicable federal motor vehicle safety standards.

The application should also provide identifying information concerning the manufacturer, the vehicle to be tested, the test operator, a safety and compliance plan, evidence of the manufacturer’s ability to satisfy a judgment and a summary of the training provided to the test operator.

The lead agency should be able to restrict HAV testing in certain areas or locations, or suspend authorization to test. The vehicle used in tested must be operated by designated personnel who hold state driver’s licenses and have been trained concerning the capabilities and limitations of HAVs. The vehicle title and registration should also identify it as a HAV.

The FAVP identifies “gaps in current regulations [that] should be identified and addressed by States,” including occupant safety, insurance, crash investigation/reporting, liability, safety inspections, education and training, vehicle modifications and maintenance, and environmental impacts.

Because of the unique hazards in responding to crashes of HAVs, such as silent operation, remote ignition, high voltage and unexpected movement, the policy states that first responders and law enforcement should understand how HAVs may affect their duties.

Finally, the policy suggests states “consider how to allocate liability among HAV owners, operators, passengers, manufacturers, and others when a crash occurs.”

NHTSA’s Current Regulatory Tools

The FAVP identifies four regulatory tools that the NHTSA can employ concerning HAVs: (1) letters of interpretation; (2) exemptions; (3) rulemaking; and (4) enforcement of safety standards.

The NHTSA has pledged to expedite the issuance of letters of interpretation, granting of exemptions and the issuance of new rules related to HAVs.

Modern Regulatory Tools

NHTSA is considering a range of potential new regulatory tools that may be needed to review and regulate developing HAV technology. Potential new authorities for NHTSA include (1) safety assurance; (2) pre-market approval of new technologies; (3) cease and desist; (4) expanded exemptions to safety standards; and (5) post-sale regulation of software changes.

The new regulatory tools include: (1) variable test procedures for testing HAVs in new test environments; (2) function and system safety (i.e., make the 15-point safety assessment mandatory); (3) regular reviews of standards and test protocols to keep current with the developing technology; (4) additional recordkeeping and reporting responsibilities; and (5) enhanced data collection, such as enhanced data recorders.

Going Forward

Since its release, the FAVP has garnered its share of detractors.

Consumer groups, such as Advocates for Highway and Auto Safety​, have said that, although the policy is a good first step, it still constitutes only nonbinding guidance, instead of mandatory federal safety standards which they believe to be necessary.

These groups note that the FAVP depends in part on manufacturers and developers sharing information about the safety features and vulnerabilities of their vehicles — an assumption which may be unlikely.

On the opposite side, the Alliance of Auto Manufacturers has said that its members want to deploy autonomous vehicles as soon as possible and federal guidance — and not mandatory regulation — is the right approach.

Other groups, such as the Competitive Enterprise Institute, have criticized the policy as potentially creating unnecessary delays and additional costs to broader deployment of HAVs, leading to more traffic injuries and fatalities caused by human error.

Are the criticisms of the FAVP valid? In evaluating the policy, there are certain considerations that must be noted. The policy represents the first comprehensive attempt by the federal government to regulate the developing HAV technology.

Its suggestions for how manufacturers and developers should approach privacy and cybersecurity go a long way toward addressing many of the concerns that the public possesses concerning the data that HAVs could potentially collect from individuals and the susceptibility of HAVs to hacking.

At the same time, the FAVP does not mandate that manufacturers and developers adopt a specific set of practices, thereby giving them the flexibility to adopt those practices that are most suited for their own particular HAV technologies.

Moreover, the uniformity of laws and regulations envisioned by the policy would provide a stable and predictable environment for manufacturers and developers to design and deploy HAVs. Such a uniform system may actually spur more rapid deployment of HAV technology as manufacturers and developers would only have to comply with a similar set of standards and requirements, instead of the patchwork of sometimes inconsistent state standards and requirements that currently exists.

Finally, the NHTSA has indicated that the FAVP was intended not to be its final pronouncement on HAVs, but instead an “evolving” document to meet the changing demands and conditions of this emerging technology.

The NHTSA has indicated that it may consider making many of the policy’s suggestions and recommendations mandatory requirements in the future depending upon the necessity of the circumstances. In the end, the policy is a good beginning.

Originally published in Law360 on January 27, 2017.