New NHTSA guidance represents the federal government’s first attempt to develop a comprehensive regulatory structure for automated vehicles. This transformative technology offers vast promises and significant concerns regarding the future of this “inevitable” new form of transportation.

In September, the National Highway Transportation Safety Administration (“NHTSA”), an agency within the U.S. Department of Transportation (“DOT”), released guidance [linked here] summarizing the regulatory requirements for that will be applied to highly automated vehicles (“HAVs” or “driverless cars”). This comprehensive NHTSA policy outlines a variety of issues, including the application of current law to HAVs, the states’ roles in regulation, privacy, cybersecurity, and safety concerns, and even the ethical quandaries raised by this new technology.

DOT Secretary Anthony Foxx referred to driverless cars as an “inevitable” technological advancement. In fact, many of these vehicles are already being tested in the United States and even operated in some states. For example, Google is testing self-driving cars in four Western states, Uber offers driverless car services in Pittsburgh, and Volvo and Ford recently announced their plan to put driverless cars on the roads by 2021. Understanding the federal government’s regulatory requirements will be crucial as more stakeholders enter the HAV field.

The guidance takes effect immediately and is open to public comment through November 22, 2016.

NHTSA’s Safety Regulations Apply to HAVs

All current regulations applicable to vehicles with human drivers also apply to HAVs, specifically Federal Motor Vehicle Safety Standards (“FVMSS”). Currently, NHTSA does not prohibit the introduction of new vehicles into the market, and relies on manufacturers to self-certify their compliance with all the necessary FVMSS. Even though NHTSA has not developed HAV-specific FVMSS, the guidance document makes clear that the agency has the authority to issue a recall for vehicles or equipment that pose an unreasonable risk to safety. NHTSA highlights the importance of a HAV meeting crashworthiness standards to protect the occupants if the crash avoidance system fails or another vehicle collides with the HAV.

NHTSA outlines the four major tools it uses to regulate this sector: letters of interpretation; exemptions from existing standards; rulemakings to amend existing standards or create new standards; and enforcement authority to address defects.

To ease the application of the current regulations to HAVs, NHTSA announced that it will streamline the review process for both interpretations (to be issued within 60 days) and regulatory exemptions (to be issued within six months).

Future Regulation: Using the Aviation Industry as an Example for HAV Regulation

The guidance also includes some new regulatory authorities NHTSA believes will improve its ability to effectively regulate this sector, including:

  • Pre-market approval of vehicles and components;
  • Cease-and-desist authority to require manufacturers to take immediate action;
  • Expanded exemption authority—current authority permits NHTSA to exempt not more than 2,500 vehicles per year; and
  • Authority to regulate post-sale software changes.

The most groundbreaking of these new authorities requested by NHTSA is pre-market approval. Pre-market approval is a regulatory power currently utilized by the Federal Aviation Administration (“FAA”) (e.g. type certifications), to balance the interests of safety and the rapid pace of technological innovation. Pre-market approval would overhaul the current self-certification regime and would instead require manufacturers to undergo rigorous government certification and safety testing before a product can be sold. In the FAA context, the type certification and production certification requirements for new aircraft often take three to five years to meet—the pre-market approval for Boeing’s 787 Dreamliner took eight years. NHTSA may also benefit from the FAA’s development of regulations for unmanned aerial vehicles (“UAS” or “drones”) and their integration into national airspace.

In response to NHTSA’s request for pre-market approval authority, a number of industry groups and auto manufacturers have highlighted their concerns that pre-market approval will hinder the development of HAV technology by being time-consuming, difficult to navigate and costly.

State Regulation of HAVs

States traditionally play a large role in motor vehicle regulation, including registration, inspection, traffic control, driver licensing, law enforcement, and highway design and maintenance. NHTSA’s guidance document encourages states to update and amend their laws to remove unnecessary impediments to HAVs. Particularly, NHTSA is concerned about the potential for a patchwork of inconsistent regulations which could negatively impact vehicle development and prevent HAV owners from traveling from state to state.

Based on these considerations, NHTSA offered recommendations for states, including creating administrative bodies responsible for reviewing and amending current laws, implementing an application process for HAVs on public roadways, altering insurance law to consider HAVs, and adjusting law enforcement and emergency response protocols to interact with HAVs.