NHTSA’s Autonomous Car Guidelines: Top Ten Things We Learned This Week 

The recent first death of a driver in an autonomous Tesla brought self driving cars to the forefront of the national conversation. For months there has been widespread rumors in the media and throughout the auto industry that NHTSA is on the verge of issuing new guidelines for autonomous vehicles. Until now, at least for the public, there has been little to no information revealed about what these guidelines will say or how they will work.

This week there was an international industry symposium in San Francisco called the Autonomous Vehicle Symposium 2016 that was attended by virtually every auto manufacturer, major vendor, and player in the space. Having attended the Symposium this week there were ten things I learned about the highly anticipated federal “guidelines” that will regulate (and I might be using that term broadly) autonomous vehicles. So, after reviewing my notes from yesterday and today, here’s my top ten list:

1. Autonomous cars are here. Now. They are being beta tested on public highways in California, Michigan, Texas and other states. Many other states like Florida have also given the green light to additional beta tests — including for one company called “Peloton” to test vehicle to vehicle connections between commercial trucks — and to essentially allow semi-trucks to tailgate each other at highway speeds in a process that they call “platooning.” Different states are currently doing different things with respect to autonomous car and truck rules and legislation.
2. Industry — both traditional auto makers and non-traditional companies like Google, Faraday Future and Peloton Technology — are racing each other to get into the space. With billions of dollars to be made, autonomous vehicle technology is the new gold rush.
3. DOT Secretary Anthony Foxx made it abundantly clear yesterday, and NHTSA Administrator Mark Rosalind reinforced today — that the Obama administration is solidly behind this technology and has a sincere interest in rolling it out as soon as possible. Both Foxx and Rosekind explained they are  behind this technology because they believe it will save thousands of lives. Rosekind said today that NHTSA’s research shows that this technology might eliminate as many as 19 out of every 20 accidents. Improved safety from autonomous vehicles will have dramatic effects on the economy — both in terms of efficiency, fuel economy, reduced medical bills, reduced auto insurance costs, and reduced personal injury claims and litigation.
4. The federal government will issue “guidelines” for this technology before the end of the summer. NHTSA has been meeting with industry for years on these guidelines but not with the public or consumer advocates. These discussions, and development of the guidelines, has all been behind closed doors. Even though the guidelines have been written and are being “tweaked” according to Rosekind, consumer advocates have not seen these guidelines and have been given essentially no opportunity for input.
5. According to Foxx, the guidelines will likely include model state legislation/regulatory language to avoid having different rules in different states.
6. Foxx said the guidelines will probably include a pre-sale approval process for production autonomous vehicles.
7. NHTSA has no plans to engage in the formal rule making process. NHTSA is supposed to engage in a well defined process for rule making before it regulates a new safety technology (think airbags for example). Rosekind stated today that NHTSA decided not to engage in formal rule making because the process would take several years. Rosekind said NHTSA needs to act immediately so this technology can be implemented quickly.
8. Autonomous vehicles will dramatically change the way people drive, commute and own cars — probably within the next 5 years according to most of the industry representatives I heard speak. There appears to be a rough consensus that we will see widespread production of level 4 and level 5 vehicles within that time frame.
9. Like any computer technology — especially in the early stages — this technology will have bugs. And glitches. And failures. And like with the Tesla crash last week, there will be some deaths and injuries caused by product failures. We are essentially in a beta testing phase, where this brand technology is being used on our public highways while industry works out the kinks.
10. NHTSA should include some provisions that consumer advocates want in the new guidelines. First, the guidelines should require redundancy. Specifically, we believe these systems should require drivers to have at least one hand on the wheel; at least for now, while the systems are being beta tested on public roads.  Perhaps there should be additional redundancies as well; one example, as discussed yesterday by Colm Boran, head of Ford Motor Company’s head of Autonomous Vehicles unit, is Ford’s use of not just cameras and radar but also lidar (a sensor system using lasers) for redundancy. Second, even NHTSA foregoes formal rule making, NHTSA should give the public, the media and consumer advocates the chance to comment on and suggest changes to the proposed guidelines before the guidelines are formally enacted.

Bonus point: we learned yesterday that it seems that some major industry major players and NHTSA believe that the new guidelines should not pre-empt state common laws. In fact, one NHTSA official said off the record that state tort laws should continue to be the basis to for adjudication of liability when there is a crash involving an autonomous car. This is great news, and if true, NHTSA should include some specific language to that effect in their guidelines. This is especially needed if, as Foxx said yesterday, there will be pre-sale approval by NHTSA for these vehicles. Without specific language, some defense lawyers will probably argue that the new guidelines pre-empt state laws and that the manufacturers are immune from state common law claims.

We will continue to watch this issue as it progresses and provide updates as we learn more.