By Zac Johnston
On September 20, 2016 the National Highway Transit Safety Agency (“NHTSA”) published a Federal Automated Vehicle Policy that serves as a guideline for car manufacturers and other entities that are developing highly automated vehicle (“HAV”) systems. The policy is not simply rule-making, but instead is an initial step for direction on production. The intention is for the NHTSA to work with the public to speed up the initial regulation framework, and as a result, it has both positive and negative aspects.
Possibly the most positive and important step taken by the NHTSA was adopting the SAE International definitions for levels of automation. These consist of six levels (0-5), 0 for when the driver fully controls the vehicle and 5 for when the automated system performs completely in all conditions. This clarity is extremely important to developers of HAV systems because the guidance provides different expectations for various levels of automation. Yet, by adopting these definitions, the guidance places the task of assessing the levels on the developer, with a possibility of review by NHTSA.
The policy also sets forth a 15-point safety assessment, which the NHTSA request that manufacturers voluntarily report how they are currently complying. The safety assessment considers different factors: times when the HAV systems are being used, the relationship between the system and the driver, how the systems work in abnormal situations, and privacy and cybersecurity concerns. The policy continually points to other organizations and industries to create the best practices and industry standards for safety, but often does not provide specifics examples, largely leaving the technical specifics for future development.
The NHTSA can be commended for taking a step toward clarifying a fast-growing area of car production. Businesses are not “flying blind” anymore in their HAV systems decisions. The policy sets forth clear guidance and if businesses want to amend the policy they can provide input. The NHTSA is allowing key stakeholders to be extremely involved during the rule making process. Not only can they see how adherence to the guidelines will affect them now, but they are also given the ability to recommend changes to better serve their needs.
Even though the policy has been partially effective, it also has as less successful components. In most of the 15-point safety assessments, the policy calls for looking at other organizations and industries for guidance. In some instances, this creates uncertainty because it might not make sense for two types of systems to refer to the same outside industry or organization for direction. For example, a self navigation system might look to the aerospace industry standards while a security system would be more likely to look at computer industry standards. The unanswered question is what industry the rule makers will look to when it comes time to implement the regulatory scheme.?
In the future, it will be interesting to see if most HAV system manufactures are using similar industry standards or if there is a large gap in their manufacturing processes. Additionally, the specific manufacturers that will be able to participate the most in this process, and whether the smaller companies will be negatively affected remains to be seen. The policy would have been more effective if it were mandatory with detailed rules, because businesses could see how it would affect them specifically. As for now, businesses will have a higher level of uncertainty before the mandatory regulations come out.
 Nat’l Highway Traffic Safety Administration, Federal Automated Vehicles Policy (Sept. 20,2016).
 Id. at 6 (“This Guidance is intended to be an initial step to further guide the safe testing and deployment of HAV’s”).
 Press Release, DOT, Four-Part Policy Lays the Foundation for the Next Revolution in Roadway Safety (Sept. 20, 2016) (on file with author).
 Nat’l Highway Traffic Safety Administration, Federal Automated Vehicles Policy, 9-10 (Sept. 20,2016).
 Id. at 12
 Id. at 15-36
 Id. at 15-36