With less than a week until the start of autumn, industry leaders are eagerly awaiting the National Highway Traffic Safety Administration (NHTSA) guidelines on autonomous vehicles, which are expected “by the end of summer.”
NHTSA Administrator Mark R. Rosekind stated on July 20, 2016, that he “strongly believe[s] that the DOT and NHTSA are well-positioned to very soon unveil strong highly automated vehicle guidance that will lay the path to the safe deployment of lifesaving technologies,” and that the guidance “is being reviewed, tweaked, and perfected as we speak.” But what can the auto industry expect from these guidelines?
Broadly speaking, the guidelines are likely to highlight the NHTSA’s support for autonomous vehicles and the agency’s belief that these technologies are integral to the future of auto safety. The NHTSA and Rosekind have been highly supportive of automated driving technology in the past, citing the improvements that autonomous vehicles could make to auto safety and quality of life. For example, Rosekind has noted that autonomous vehicles are likely to reduce roadway fatalities and prevent intersection accidents, grant independence to disabled persons in their personal vehicles, and relieve drivers of their responsibilities behind the wheel. Given the NHTSA’s praise for autonomous vehicle technology, the guidance is likely to encourage and allow for the rapid roll-out of autonomous vehicles into the marketplace.
The guidelines are also likely to be more of a concise and forward-thinking framework, designed for flexibility and adaptability over time, rather than an exhaustive set of highly detailed regulations. As Rosekind hinted, “those expecting the DOT and NHTSA to issue 16,000 pages of regulations in the coming weeks will be disappointed, or perhaps more likely, relieved.” Instead, Rosekind has described the anticipated guidelines as “nimble and flexible, able to keep pace with technological innovation.” Industry leaders should expect guidance that is appropriate for autonomous vehicles, but that will be capable of stretching to cover the next big technological development that’s just around the corner.
More specifically, Rosekind stated on August 3, 2016, that the guidelines will cover performance standards for autonomous vehicles, guidelines for states to encourage uniformity and consistency in the regulation of autonomous vehicles, and new tools that the NHTSA hopes to use in its own governance of autonomous vehicles.
What Rosekind’s statements also make clear is that industry leaders should expect informal guidance rather than formal rules. The NHTSA considers this a positive—it allows the agency to release the guidelines more quickly and update them more efficiently in the future. But the guidelines will not have the same force or authority as formal rules and regulations in the context of enforcement. It may also mean that the NHTSA will rely more heavily on voluntary agreements in the industry in the near future, like the voluntary commitment by automakers to make automatic emergency braking a standard feature by 2020.
There are a few hot topics that industry leaders should not expect to be covered by the guidelines, such as the impact of autonomous technology on insurance. The guidelines are not anticipated to address issues such as how insurers and insurance regulators can or should adapt to either partially automated or fully autonomous vehicles, or how to adjust our current system of allocating legal responsibility for vehicle operation in a driverless world. Also, with the NHTSA expected to release separate cybersecurity guidelines in the coming weeks, these guidelines are not likely to include specific guidance on cybersecurity issues impacting autonomous vehicles.
The use of automated vehicle technology in the U.S. is rapidly increasing—and in fact is already in use far more than people realize. Guidance on a state and national level is crucial to proactively resolve conflicts, guide auto manufacturers and others in the industry, and protect consumers during this technological shift. The NHTSA guidelines should be expected to help, and not hinder, the roll-out of autonomous vehicle technology, but should not be expected to answer every question raised by this technology. Regulatory action is needed, and these highly anticipated guidelines are merely a single step in the right direction.
Mike Nelson is a partner and Kara Ford is an associate in the law firm Sutherland, Asbill & Brennan LLP.