Reed Smith Client Alerts

Authors: Henry R. King John Iino Kristin I. Wells Yoshitaka Sakamoto

On September 20, 2016, the U.S. Department of Transportation (“DOT”) issued a new federal policy (“Policy”) for self-driving vehicles, aiming to guide the safe testing and deployment of automated vehicle technologies that have the potential for transforming both vehicle safety and personal mobility.

The Policy addresses the development of advanced automated vehicle safety technologies, which have the potential to dramatically decrease the number of crashes tied to human choice; to transform personal mobility; and to open doors for people and communities, including persons with disabilities and aging populations. The technologies have the potential to be “the greatest personal transportation revolution” since the popularization of the personal automobile nearly a century ago. “This Policy is an unprecedented step by the federal government to harness the benefits of transformative technology by providing a framework for how to do it safely,” said U.S. Transportation Secretary Anthony Foxx1.

The Policy primarily focuses on highly automated vehicles (“HAVs”), but some parts of the Policy also apply to lower levels of automation, including vehicles that have an automated system to assist the human driver in conducting parts of the overall driving task. The Policy takes a substantive and proactive approach to expedite safe introduction of technology and innovation through four main sections:

  1. The Vehicle Performance Guidance for Automated Vehicles (“Guidance”) section proposes a 15-point safety assessment, which covers data recording and sharing; privacy; system safety; vehicle cybersecurity; human machine interface; crash worthiness; consumer education and training; registration and certification; post-crash behavior; compliance with federal, state, and local laws; ethical considerations; operational design domain; object and event detection and response; fall back (minimal risk condition); and validation method. Manufacturers will report how they are meeting the Guidance, and NHTSA will look at the 15 criteria when it assesses whether their HAVs are safe. Note that, although reporting by submitting a safety assessment letter is voluntary at this time, the DOT intends to make this reporting process mandatory in the near future.
  2. The Model State Policy illustrates the federal and state roles for the regulation of HAV technologies, and outlines a model state policy that, if adopted, would create a consistent, unified national framework for the regulation of vehicles with all levels of automated technologies, including HAVs. The Policy provides that states should allow the DOT alone to regulate the performance of HAV technologies and vehicles, and if a state were to pursue HAV performance-related regulations, such a state should consult with NHTSA and base its regulations on the Guidance. NHTSA notes that states will continue to regulate human drivers, vehicle registration, traffic laws, regulations and enforcement, insurance, and liability.
  3. NHTSA’s Current Regulatory Tools outlines options for the further use of current federal authorities to facilitate the safe introduction of HAVs into the marketplace. NHTSA currently has four primary tools to be used to address the introduction of new technologies and new approaches to existing technologies, including letters of interpretation, exemptions from existing standards, rulemaking to amend existing standards or create new standards, and enforcement authority to address defects that pose an unreasonable risk to safety. The Policy provides that NHTSA’s enforcement authority concerning safety-related defects in motor vehicles and equipment extends and applies to new technologies, including HAVs. As to the other tools, the Policy explains the background, purpose, process, timeline and response to a denial by NHTSA so that these tools can be used more effectively.
  4. The New Tools and Authorities section does not establish a uniform regulatory standard, but discusses potential new tools and authorities, as well as resources, which could help the federal government facilitate the safe and expeditious development of HAVs. For example, new authorities include pre-market safety assurance, pre-market approval authority, cease-and-desist authority, expanded exemption authority for HAVs, and post-sale authority to regulate software changes (and updates). New tools include variable test procedures to ensure behavioral competence and to avoid the gaming of test, functional and system safety, interactive and forward-looking reviews of marketing agency testing protocols, additional recordkeeping/reporting, and enhanced data collection tools. The Policy also discusses the importance of extensive vehicle automation research that will be needed to provide sufficient scientific basis for sound regulatory decision-making and regulation of HAVs.

Most of the Policy is effective immediately, but the DOT is also seeking public comment on the entire Policy. The DOT expects to issue the first revised Policy sometime within the next year, and annually thereafter. Along with the initial Policy, NHTSA is issuing a Request for Comment (“RFC”) on the Policy, which is available at The RFC will be open for 60 days.



Client Alert 2016-258