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Accelerating the autonomous vehicle revolution

White & Case Technology Newsflash

Accelerating the autonomous vehicle revolution - USDOT announces new policy for safe design, development and deployment of autonomous vehicles

In an important step towards facilitating the safe introduction and deployment of autonomous vehicles on American roads, the U.S. Department of Transportation ("USDOT") last week announced a new Federal Automated Vehicles Policy ("the Policy"). Intended as guidance rather than prescriptive rulemaking, the Policy aims to provide a technology-neutral, flexible framework and foundation to assist traditional vehicle manufacturers, technology companies and other participants in the autonomous vehicle systems industry to understand how agency action relating to this rapidly evolving technology will occur. The USDOT may have opted for this approach after recognizing that a flexible framework was necessary because of the rate that current technological developments are scaling and the inability of the law to keep pace with technology.

Citing over 35,000 vehicle related deaths that occurred in 2015 largely due to human error, safety was a focus for the USDOT in issuing the Policy.  The Policy adopts SAE International definitions for levels of automation and primarily focuses on "highly automated vehicles" ("HAVs") - vehicles with automated systems that are responsible for monitoring the driving environment (SAE International Levels 3 to 5). Elements of the Policy, however, also apply to lower level automation systems.

What does the Policy cover?

The Policy is divided into 4 sections:

  • Section 1 – Vehicle Performance Guidance for Automated Vehicles – Section 1 provides a framework for USDOT's "Vehicle Performance Guidance". It identifies 15 key safety assessments areas that manufacturers and other entities designing HAV systems should address prior to testing or deploying HAVs on public roadways. These include data recording and sharing, privacy, system safety and vehicle cybersecurity. Interestingly, the Guidance signals a need for increased data sharing to enhance and extend the safety benefits of HAV systems technology. The Policy indicates that manufacturers and other entities should have the technical and legal capacity to share relevant data. The Policy requests that manufacturers and other entities voluntarily provide "Safety Assessment" reports to the National Highway Traffic Safety Administration ("NHTSA"), outlining how the Guidance has been met.  This reporting process may become mandatory in the future.

  • Section 2 – Model State Policy – Section 2 outlines the differing regulatory responsibilities of the Federal Government and the States for motor vehicle operation and outlines a Model State Policy which aims to create a "consistent, unified national framework for regulation of motor vehicles with all levels of automated technology, including HAVs".  The framework envisages the NHTSA would continue to regulate motor vehicles and motor vehicle equipment (including automation hardware and software) and the States would continue to regulate drivers (both human and potentially HAV drivers) including in respect of enforcement and liability.  The Model State Policy also anticipates that States will regulate the procedures and requirements for granting permissions to test and operate HAVs within their borders.

  • Section 3 – NHTSA's Current Regulatory Tools – Section 3 provides a useful summary of the current regulatory tools the NHTSA employs to regulate the introduction of new vehicles and vehicle technologies.  These include interpretations, exemptions, rulemakings and enforcement authorities.  An overview of each tool is provided, including its scope and purpose, as well as the application process, factors relevant to grant and timeframes.

  • Section 4 – New Tools and Authorities – Section 4 discusses potential new tools and authorities which might be employed to assist with the safe and expeditious development and introduction of HAVs.  The purpose of this section is to initiate public dialogue to identify tools worth pursuing.  Tools range from increased record keeping and reporting and enhanced data collection to a discussion of the feasibility of a shift from the currently adopted self-certification approach towards a pre-market approval process (which would represent a wholesale structural change in the way the NHTSA regulates motor vehicle safety).  Interested stakeholders are encouraged to review the discussion in this section and provide comments to the NHTSA (see below).

How can you influence the Policy going forward?

The Policy is relevant to everyone who manufactures, designs, tests or sells automated vehicle systems (or intends to) in the United States. Other than the "Safety Assessment for HAV Manufacturers and Other Entities" and the "Safety Assessment for L2 Systems" discussed in the "Vehicle Performance Guidance" in Section 1, the Policy is effective immediately. USDOT, however, through the NHTSA has issued a Request for Comment ("RFC") to seek public comment on the Policy. The RFC is open for 60 days. Comments received will inform the next revision of the Policy which is expected to issue within one year or less. Interested stakeholders are encouraged to provide comments and feedback on the Policy to enable USDOT to improve upon and make informed decisions regarding the Policy, including the appropriateness of a shift to pre-market approval (or a hybrid approach) and the scope of the Safety Assessment letter (including mandating their submission).

Interested in autonomous driving technologies?

White & Case has set up a global group focusing on autonomous driving. Lawyers around our global network are discussing fundamental questions and issues related to autonomous driving to provide clients with early insights into new developments and ideas. Previous articles on autonomous driving can be found here, here and here. If you have any questions, please contact the authors.


Erin Hanson, a Law Clerk at White & Case, assisted in the development of this publication.

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