• NHTSA Releases New Automated Vehicle Policy
  • September 19, 2017 | Authors: Kymberly Kochis; Jason S. McCarter; Tony Ficarrotta; Michael R. Nelson; Tracey K. Ledbetter; Mary Jane Wilson-Bilik
  • Law Firms: Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - Atlanta Office; Eversheds Sutherland (US) LLP - New York Office; Eversheds Sutherland (US) LLP - Atlanta Office; Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - New York Office
  • The US Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) this week released Automated Driving Systems 2.0: A Vision for Safety. This updated guidance on automated driving systems (the Guidance) is intended to “pave[] the way for the safe deployment of advanced driver assistance technologies by providing voluntary guidance that encourages best practices and prioritizes safety.”1

    The Guidance provides what NHTSA characterizes as a “nonregulatory approach” to automated vehicle (AV) development. This approach includes voluntary guidance on safety standards for automakers, as well as best practices for state policymakers developing their own approaches to AV regulation. The light touch represented by NHTSA’s nonregulatory approach is intended to prevent impediments to AV progress that could result from imposing “unnecessary or unintended barriers to innovation.” Both the voluntary guidance on safety standards and best practices for states are discussed in turn below.

    Voluntary Guidance on Safety Standards

    In AVs, NHTSA sees the potential for significant improvements in roadway safety. NHTSA attributes 94% of fatal crashes to human error, and believes that AVs can significantly reduce highway fatalities by relying on automated systems that do not get drowsy, drunk, or distracted. However, to meet this potential, AVs themselves must be rigorously designed and tested to ensure they are safe. To that end, NHTSA’s Guidance presents standards for 12 safety design elements for AVs:

    • System Safety: AV developers and manufacturers should use a whole-system engineering approach to design AVs free of unreasonable safety risks (“safety by design”).
    • Operational Design Domain: AV developers and manufacturers should clearly and accurately define the specific conditions under which AVs are designed to operate.
    • Object and Event Detection and Response: AVs should be able to detect and appropriately respond to other vehicles, pedestrians, bicyclists, animals, and other objects in a wide variety of circumstances.
    • Fallback: AVs should be able to transition from a normal driving mode to a “minimal risk condition” (i.e., a fallback mode). This fallback mode could include safely slowing to a stop, or prompting a human driver to take control.
    • Validation Methods: AV developers and manufacturers should be able to validate and confirm the capabilities AVs are designed to have. This validation could include the use of simulations, test tracks, and on-road testing.
    • Human Machine Interface: Information and control must be able to pass smoothly between human operators/passengers and AV control systems, particularly in Level 3 AVs.2
    • Vehicle Cybersecurity: AV developers and manufacturers should follow a System Safety/Safety by Design approach to cybersecurity, and incorporate best practices developed by agencies, industry groups like the Alliance of Automobile Manufacturers, Auto-ISAC, and other standards organizations. Information sharing through participation in Auto-ISAC is also encouraged, as is the development of cyber incident response plans.
    • Crashworthiness: Different AV vehicle configurations, and unoccupied AVs, could require different design principles to best protect occupants within an AV and people in other vehicles.
    • Post-Crash Behavior: AVs should be able to return to a “safe state” after a collision (e.g., moving to a safe position, disengaging power, etc.).
    • Crash Data Recording: Collecting and sharing crash data can lead to important safety developments and crash prevention. Vehicles should record, at a minimum, all available information relevant to the crash, so that the circumstances of the crash can be reconstructed. These data should also contain the status of the AV and whether the AV or the human driver was in control of the vehicle leading up to, during, and immediately following a crash.
    • Consumer Education and Training: The public must adequately understand the function and intended uses of AVs to unlock all potential safety benefits.
    • Federal, State, and Local Laws: AVs should be able to account for and respond to all applicable federal, state, and local laws (including traffic laws, design laws), as well as circumstances when violation of a law to protect life or property is appropriate.

    Unlike NHTSA’s initial Federal Automated Vehicles Policy,3 the updated Guidance does not contain any consumer privacy standards. However, the Guidance acknowledges the importance of consumer privacy and related ethical considerations in the context of AVs, and provides references to other resources on privacy principles.4

    All of the standards proposed in the Guidance are voluntary, and are intended by NHTSA to support industry development of safe AVs, not to dictate requirements. Entities that are engaged in AV development and deployment are also encouraged to engage in voluntary safety self-assessment and reporting. According to NHTSA, these voluntary self assessments are intended to demonstrate to the public that AV developers are: (1) developing safe AVs; (2) communicating and collaborating with DOT; (3) encouraging industry safety norms for AVs; and (4) developing public trust and confidence through transparency.

    Best Practices for States

    The state-level best practices articulated in the Guidance are designed to clarify federal and state roles in the regulation of AVs, and recommend a framework for state laws and regulations related to AVs. The Guidance provides best practices for both state legislatures and state highway safety officials.

    Best Practices for State Legislatures

    • Provide a technology-neutral environment: States should not burden competition and innovation by limiting AV testing or deployment to vehicle manufacturers only; tech companies also should be able to participate.
    • Provide licensing and registration procedures: AVs should be recognized under state law licensing, registration, and insurance requirements.
    • Provide reporting and communications methods for public safety officials: Crash reporting and roadway incident reporting procedures should be in place at the state level.
    • Review traffic laws and regulations that may serve as barriers to operation of AVs: State vehicle codes often have requirements that do not fit AVs (i.e., requiring a human operator to have one hand on the wheel).

    Best Practices for State Highway Officials

    • Administrative: States should consider creating new agencies or departments to lead AV testing, coordinate with other relevant agencies, facilitate communication, recommend and implement policies, and manage AV test permitting.
    • State guidelines: States should develop guidelines for applications, permissions, and test driver/operator treatment under state law.
    • Registration and titling: AVs should be identified as such on the vehicle title and registration. In addition, states could require upgrade notifications for AVs when appropriate.
    • Working with public safety officials: State safety officials should be prepared to monitor public response to AV deployment and provide education if needed.
    • Liability and insurance: States should be considering how to allocate liability among AV owners, operators, passengers, and manufacturers when accidents occur. States should also clarify which entity is required to carry motor vehicle insurance, if any.


    The latest NHTSA Guidance on AVs demonstrates that the current federal government intends to use a light regulatory touch to support AV stakeholders (especially industry and state/local jurisdictions), while still promoting safety. NHTSA’s approach in this regard is also consistent with legislation currently moving through Congress. The release of NHTSA’s Guidance coincides with the US House of Representative’s passage of the SELF DRIVE Act, a bill designed to facilitate the development and deployment of highly automated vehicles. The SELF DRIVE Act is now being considered in the Senate, where it has been referred to the Committee on Commerce, Science, and Transportation. Notably, the SELF DRIVE Act would preempt certain state laws related to AVs that could hinder their deployment, and provides for additional exemptions from Federal Motor Vehicle Safety Standards that may not be applicable or relevant to AVs.

    However, federal regulation of AVs is rapidly evolving. NHTSA has made it clear that it plans to “regularly update the [Guidance] to reflect lessons learned, new data, and stakeholder input as technology continues to be developed and refined.” In addition, recognizing that rapid advancements continue to be made in automated vehicle technology, NHTSA is already planning a “3.0” version of the Guidance. Finally, changes to the SELF DRIVE Act are expected as it makes its way through the Senate. For example, its scope might be expanded to include self-driving trucks.5

    Eversheds Sutherland continues to monitor developments in the regulation of AVs, and will continue to provide updates and analysis related to those developments.

    1 https://www.transportation.gov/briefing-room/dot7017.

    2 SAE International recognizes 5 levels of vehicle automation. Level 3 automation is considered “conditional” automation that still requires human input in certain circumstances. See https://www.sae.org/misc/pdfs/automated_driving.pdf.

    3 https://www.transportation.gov/sites/dot.gov/files/docs/AVpolicyguidance20.pdf.

    4 See www.nhtsa.gov/AVforIndustry.

    5 https://morningconsult.com/2017/09/13/senators-dis...