United States: U.S. Department Of Transportation Unveils Updated, Softer Policy Guidelines On Autonomous And Connected Vehicles

Last Updated: September 25 2017
Article by John C. Muhs

Last week, the U.S. Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) released new policy guidelines for autonomous and connected vehicles. Titled " Automated Driving Systems: A Vision for Safety 2.0," the policy guidelines update and replace the Federal Automated Vehicle Policy promulgated almost exactly one year ago by DOT and NHTSA under the Obama administration. The guidelines also come less than a week after the U.S. House of Representatives overwhelmingly passed the SELF DRIVE Act, groundbreaking proposed legislation that would offer the industry long-desired clarity regarding safety standards for connected and autonomous vehicles (CAVs).

The new policy document is divided into two sections. The first, Voluntary Guidance for Automated Driving Systems, is directed at the automotive and mobility industries designing and testing CAVs. It offers guidance regarding 12 priority safety design elements (pared down from 15 elements the prior year), including object and event detection, data recording, human-machine interface, cybersecurity and post-crash behavior. The second section, Technical Assistance to States, is aimed at state policymakers, who have led the way thus far on regulating the emerging technology. It outlines the respective roles of the federal and state governments and "best practices" for state regulators in regulating the safety design and performance of automated driving systems.

Consistent with other aspects of President Trump's agenda, the updated DOT framework reflects a "light touch" approach to industry regulation, securing a win for the automotive lobbying effort in Washington. Not only the content of the policy is less rigorous than the 2016 edition—the document was pared down from 116 pages to 36.

Most of the content of this year's edition is retained from 2016, and at times verbatim. It is generally less specific in its recommendations and less technical in tone. The most significant change is the removal of 2016's "Modern Regulatory Tools," which proposed that NHTSA should have "pre-market approval" as a replacement for or supplement to the current self-certification system, and that it should have the power to require manufacturers to take immediate action to mitigate serious and imminent safety hazards. The updated guidance also asserts that NHTSA will not be promulgating new reporting requirements, walking back one of the suggestions from last year's policy.

As before, the guidance is purely voluntary, imposing no compliance requirements or enforcement mechanisms. Suppliers should rather view it as an illustration of the new administration's intent to stay out of the industry's way as automakers and tech companies develop and deploy CAV technologies. Of course, Congress may enact the SELF DRIVE Act, which would, among other things, require NHTSA to implement binding Federal Motor Vehicle Safety Standards for automated vehicles. For now, though, suppliers should wait and see before taking any action on the guidance.

Secretary of Transportation Elaine Chao, who announced the release of the guidance from Mcity in Ann Arbor, also added that "projects that have greater innovation will get a greater share of federal dollars." The federal government might be well-served to use such subsidies to bolster ongoing mobility efforts in Michigan. DOT has already been involved at Mcity, and the state is home to one-of-its-kind legislation and public-private initiatives to install vehicle-to-infrastructure and pilot autonomous shuttle transit systems.

On the same day, the National Transportation Safety Board (NTSB), an independent federal agency, concluded its investigation into the May 2016 fatal crash of a Tesla Model S using its Level-2 "Autopilot" mode. NTSB found that the driver's reliance on the Autopilot feature was disproportionate to its capabilities, and it concluded with a list of policy recommendations for significantly more governmental oversight over partially automated driving systems.

This article is reprinted with permission from Warner Norcross & Judd LLP. This article is not intended as legal advice. For additional information, please contact the author of this article.

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