New NHTSA Guidance Encourages AV Industry

Just one year ago, the Obama Admin. issued vehicle-performance guidance for the autonomous vehicle (AV) industry. Compliance was voluntary. The guidance requested manufacturers of automated driving systems (ADS) to provide reports to NHTSA in the form of safety-assessment letters, explaining how the manufacturer considered and followed the guidance.

Those letters would explain whether the manufacturer considered 15 safety elements relating to AV development, security and performance. While the submission of the letters was voluntary, NHTSA “expected” manufacturers to submit them at least four months before they began road testing ADS-equipped vehicles. In fact, NHTSA even suggested the voluntary submission of the letters would become mandatory in the future. NHTSA’s review of the letters would allow it to monitor the development and safety of such technologies before vehicles with ADS were tested on the road.

Not long into the Trump Admin., the Secretary of the Department of Transportation indicated the existing AV guidance was under review. On Sept. 12, NHTSA proffered new revised guidance titled “A Vision for Safety.” According to Secretary Chao, the guidance addressed the concerns expressed by the industry about the prior guidance and provided a “more nimble” policy to “(m)atch the pace of private-sector innovation.”

While the guidance continues to include most of the 15 safety-assessment elements outlined in the prior guidance (excluded are consideration of vehicle-owner privacy and ethical decision-making by the ADS), it is most notable for its brevity and tone.

It is less than a third the length of the prior guidance, resulting in less specificity and instead of “expect(ing)” the industry to follow the guidance it repeatedly “encourage(s)” the industry to follow it. Both of these traits indicate the agency is in fact getting out of industry’s way.

With respect to those safety assessment letters, NHTSA’s new guidance has relegated them to mere promotional materials that manufacturers might want to publish to “showcase their approach to safety.” The intended audience for the letters is States and consumers, not NHTSA.

The encouraged content of such reports need only indicate whether a safety element was considered or was not applicable, not whether it was not considered at all.  The importance of such letters is summed up in the following quote: “Entities are not required to submit a Voluntary Safety Assessment, nor is there any mechanism to compel entities to do so. While these assessments are encouraged prior to testing and deployment, NHTSA does not require that entities provide disclosures nor are they required to delay testing or deployment. Assessments are not subject to federal approval.”

Thus, NHTSA appears to be relinquishing any ongoing responsibility for reviewing the technical development of ADS to identify concerns relating to motor-vehicle safety before the AVs are operated on the roadways in the U.S.

Another aspect of the safety-assessment guidance that suggests that USDOT and NHTSA may be content to promote rapid innovation over motor vehicle safety is its guidance relating to the crashworthiness of automated vehicles.

In the prior guidance, NHTSA’s first statement about the crashworthiness of AVs was that a highly automated vehicle “is expected to meet NHTSA crashworthiness (safety) standards” and manufacturers should incorporate new protections that become available through new AV-related technologies.

No such unequivocal statement is contained in the new guidance. Instead the new guidance states that “the occupant protection system should maintain its intended performance level.” The only reference to current safety standards is the statement that “in addition to the seating configurations evaluated in current standards, entities are encouraged to evaluate and consider additional countermeasures” for unique interior configurations.

Of concern is that these statements and their tone might be a signal NHTSA intends to be more lax in enforcing existing crashworthiness standards when it comes to vehicles with ADS. That would be consistent with the completely hands-off approach to regulation reflected in this guidance.

The AV industry asked for some revisions to the prior AV guidance. It may have gotten more than it asked for. While the industry may have thought the submission of safety-assessment letters four months before road testing was burdensome, NHTSA apparently no longer will review the safety of a manufacturer’s ADS at all. Should ADS road testing result in an accident injuring a third party, a manufacturer will lose the ability to assert that it submitted its safety assessment letter and NHTSA did not notify it of any deficiencies or safety issues. While this argument is not as helpful to a manufacturer’s defense as compliance with an applicable safety standard, it’s better than nothing.

In any event, the way is now clear for the unfettered development of ADS technology in motor vehicles. NHTSA’s Vision for Safety looks like it has dramatically changed.

Richard Wilhelm is Of Counsel at Dickinson Wright PLLC’s Detroit office, where he focuses his practice on automotive law and product liability and personal injury. He can be reached at 313-223-3550 or [email protected].