The U.S. Department of Transportation released new federal guidance for Automated Driving Systems (ADSs) on September 12, 2017. The new Voluntary Guidance—titled “Automated Driving Systems 2.0: A Vision for Safety”—replaces the 2016 Federal Automated Vehicles Policy. The new Voluntary Guidance adopts a flexible and less burdensome approach, emphasizing (1) entities’ voluntary compliance and self-assessment submissions, and (2) the States’ role in the regulation of ADSs.
The voluntary nature of the new Guidance provides entities more room to innovate ADS technology at a much faster pace. Although the new Guidance aligns with concurrent legislative efforts to expand the development and use of ADSs, the Guidance represents a largely non-regulatory approach, as it makes clear that entities are not required to comply with its guidelines and States are discouraged from codifying any part of the Guidance regarding the development, testing or deployment of ADSs.
Departure from the 2016 Federal Automated Vehicles Policy
Aiming to be clearer and more streamlined, the new Voluntary Guidance is significantly shorter than the 2016 Federal Automated Vehicles Policy (FAVP), which outlined a 15-point “Safety Assessment” for entities to implement in their design and development of highly automated vehicles (HAVs). The new Guidance removes the 2016 FAVP’s elements that addressed privacy, registration and certification, and ethical concerns, as NHTSA found these concerns to be outside of its jurisdiction and more appropriate for other federal agencies to address. Instead, NHTSA’s current focus is on (1) recording data for crash reconstruction, (2) encouraging the industry to collaborate on sharing safety-related data, and (3) working with industry, States and other federal agencies to research and develop a framework to address ethical and privacy concerns.
Additionally, in response to stakeholders’ request for NHTSA to adopt consistent taxonomy, the new Guidance replaces the term “automated vehicles” with “automated driving technologies,” and replaces the term “highly automated vehicles (HAVs)” with “Automated Driving Systems (ADSs).” Further, in response to stakeholders’ comments that several safety elements outlined in the FAVP were not applicable to ADS systems that take full control of vehicles, the new Guidance focuses on the safety elements for this latter group of ADS systems but clarifies that such safety elements are applicable to vehicles of all levels of automation.
Voluntary Compliance and Self-Assessment
The new Voluntary Guidance reduces the number of regulatory hurdles and emphasizes the voluntary nature of entities’ compliance and self-assessment submissions. Specifically, the new Guidance sets forth 12 safety elements based on the consensus of experts across the industry and encourages that entities consider and document their use of these safety elements when developing and testing ADSs. Entities that elect to submit voluntary Safety Self-Assessments to NHTSA can do so through the public docket. The Guidance makes clear, however, that entities are neither required to comply with the safety guidelines nor are they required to submit a Safety Self-Assessment before testing or deploying ADSs. Additionally, should entities submit a Safety Self-Assessment, these submissions are not subject to federal approval.
Thus, entities can begin testing or deployment of ADSs without awaiting federal approval or meeting reporting requirements. Nevertheless, NHTSA retains full defect, recall and enforcement authority over ADSs, and entities remain subject to NHTSA’s guidance on such issues.
Clarification of States’ Role
The second half of the new Voluntary Guidance clarifies the role that States are to play in the regulation of ADSs. By encouraging States to reevaluate existing legislation and eliminate any possible barriers to the regulation of ADSs, the Guidance provides States various legislative principles, resources and technical information to utilize when developing ADS legislation. While the Guidance does not call for State policies to be identical, it emphasizes that States should work together towards developing a consistent national framework, with NHTSA taking the lead in regulating the safety and deployment of ADSs.
Consistency with other Automated Vehicle Legislation
The new Voluntary Guidance also comes at a time when Congress is considering automated vehicle legislation. Shortly before the Department of Transportation released the new Voluntary Guidance, the House of Representatives, on September 6, 2017, passed the “Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act” (“SELF DRIVE Act”), which would preempt state regulations of ADSs.1 Additionally, on September 13, 2017, the day after the Department of Transportation released the Voluntary Guidance, the Senate Committee on Commerce, Science and Transportation held a hearing to consider a similar Senate bill regarding autonomous vehicles. Like the SELF DRIVE Act, the Senate bill aims to eliminate regulatory roadblocks created by state or local laws. At the September 13, 2017 hearing, however, the Committee also considered whether to include self-driving commercial trucks within the bill’s scope, which the SELF DRIVE Act had specifically excluded. The Senate bill will most likely be formally introduced in early October for committee approval.
While the new Voluntary Guidance does not go so far as to call for complete preemption of State regulation on ADSs, it does seek to address the industry’s concern that a patchwork of state laws inhibits the innovation and widespread use of ADSs.
