The Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) has provided much-anticipated guidance to manufactures of automated vehicles with the release of the new Federal Automated Vehicle Policy. The guidance marks a shift in philosophy for NHTSA, an agency typically viewed as reactionary, and one that has preferred to adopt narrow regulations with prescribed standards. Instead, the new guidance seeks to accelerate the development of highly automated vehicles and, emphasizing the safety and economic benefits of these vehicles, sets open-ended goals for manufacturers. In an op-ed, President Barack Obama heralded the new guidelines as a way to encourage the development of autonomous vehicles, which "have the potential to save thousands of lives each year."

NHTSA developed a 15-point framework for manufacturers to use when assessing the safety of their automated vehicles. Among the 15-point safety checklist, manufacturers are asked to assess data recording and sharing, privacy, cybersecurity, crashworthiness, compliance with federal and state laws, and the vehicle's object detection and responses. NHTSA is asking manufacturers to voluntarily submit a letter assessing their automated vehicles under that checklist each time a significant update is made to a vehicle or system.

The guidelines also provide an overview of how NHTSA plans to use its current tools and authority to regulate automated vehicles, including guidance through interpretation letters, temporary exemptions, rulemaking, and enforcement authority. Further reflecting the priority to be given to manufacturers seeking to comply with the new guidance, NHTSA intends to fast track its review of questions involving automated vehicles and has committed to issuing responsive interpretation letters within 60 days of receipt. The agency has also committed to expediting its review of requests for temporary exemptions from federal motor vehicle safety standards (FMVSS) related to automated vehicles.

Because the guidelines seek voluntary compliance by automakers, they do not preempt independent state regulatory action like formal regulations would. Recognizing that limitation, DOT included a model state policy in an effort to "avoid a patchwork of inconsistent laws and regulations among the 50 states and other U.S. jurisdictions," which could delay the widespread use of these technologies. While noting that states will be responsible for licensing, insurance, and the enforcement of traffic laws, DOT "strongly encourages" the states to leave regulation of automated vehicle performance to the federal government or, at a minimum, consult with NHTSA before implementing their own regulations. This request comes at a time when several states, including Michigan, are in the process of regulating automated vehicles, while some have already done so. It remains to be seen how many states will follow the model policy.

DOT is seeking public comment on the policy for 60 days and expects to update the policy annually.

Ballard Spahr's Product Liability and Mass Tort Group has substantial experience representing automotive companies in a wide range of litigation and counseling matters, including class actions and regulatory compliance.


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