United States: Federal Automated Vehicles Policy: A Work In Progress

Last Updated: February 15 2017
Article by Hanley Chew

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
30 Oct 2017, Seminar, California, United States

This program will address some of the hottest legal and policy topics that online platforms have brought to the fore: free speech, hate speech, fake news, privacy and surveillance, artificial intelligence, augmented reality, changing notions of “ownership” of information and software-enabled consumer products, and the perennial issue of copyright.

15 Nov 2017, Other, Dallas, United States

Network and be seen as an information security thought leader. “The Exchange” colloquium is designed for senior business executives and security practitioners fr​om both the public and private sector.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.