NHTSA to States: Follow Our Lead on Self-Driving Cars

October 6, 2016

As autonomous vehicles have been increasingly tested on public roads, states have enacted laws and regulations written to promote the safe use of this emerging technology.

The challenge these states face is how to encourage innovation (and attract business) while preventing the unsafe deployment of a technology that is not yet mature.

Highly Automated Vehicles (HAVs) present a new challenge for state transportation agencies, which are primarily responsible for licensing drivers, registering vehicles, and enforcing traffic laws. The federal government, in turn, educates the public on safe driving practices, investigates and recalls vehicles that do not comply with the Federal Motor Vehicle Safety Standards (FMVSS).

This has worked for a long time, and for good reason.untitled

The Federal Motor Vehicle Safety Standards cover everything in a vehicle from airbags to headlights to crashworthiness. Individual states cannot override or exceed them, and because they apply everywhere across the United States, a company like Toyota can sell the same vehicles in Georgia as it can in Oregon.

In turn, citizens can then drive that same vehicle from coast to coast without having to consider different motor vehicle regulations every time they cross a border.

If this were not the case, manufacturers and drivers alike would have to contend with up to 50 different sets of regulations in order to operate in the United States – raising overhead costs, imposing (nearly inevitable) legal fees, and creating logistics nightmares for manufacturers and car retailers.

Quite simply, the auto industry would face severe financial hardship if every state could independently set motor vehicle standards.

To avoid this situation, policy guidance released by NHTSA last month clearly delineates federal and state government responsibilities related to the testing and deployment of autonomous vehicles:

Federal (NHTSA) State
Setting FMVSS for new motor vehicles and motor vehicle equipment (to which manufacturers must certify compliance before they sell their vehicles);

Enforcing compliance with the FMVSS;

Investigating and managing the recall and remedy of non-compliances and safety-related motor vehicle defects and recalls on a nationwide basis;

Communicating with and educating the public about motor vehicle safety issues; and

Issuing guidance for vehicle and equipment manufacturers to follow, such as the Vehicle Performance Guidance for HAVs presented in this Policy.

Licensing (human) drivers and registering motor vehicles in their jurisdictions;

Enacting and enforcing traffic laws and regulations;

Conducting safety inspections, where States choose to do so; and

Regulating motor vehicle insurance and liability.

As we have previously discussed, part one of the NHTSA policy statement outlined the agencies’ recommendations for manufacturers to self-regulate and guarantee safety while complying with FMVSS.

To prevent replication of these standards, NHTSA has requested that states refrain from regulating the design of autonomous vehicles, as it will (eventually) propose and implement FMVSS for HAVs.


To provide a single and definitive point of contact for HAV issues, NHTSA recommends Stathat states identify a lead agency to oversee testing and deployment.

States are encouraged to establish – and work in tandem with – a jurisdictional automated safety technology committee. This would be comprised of state officials related to insurance, transportation, motor vehicle, law enforcement, highway safety, and information technology agencies. Also to be included are aging and disabled communities, toll authorities, and transit authorities.

This group will examine the following areas that require active state involvement, and assign appropriate authorities to each body of the state government (the presumptive best fits for each category):

  • Licensing and registration of HAVs (DMV)
  • Drivers education and training (DMV and highway safety office)
  • Insurance and liability (insurance authority)
  • Enforcing traffic laws and regulations (law enforcement)
  • Motor vehicle inspections (DMV and/or private entities)

Manufacturer-State Interaction

If the purpose of the model state policy guidance is to cut red tape, this guidance may have missed the mark.

It is recommended that manufacturers and other entities (MOEs) submit applications to the lead agency that explicitly identifies every HAV vehicle and driver; their safety and NHTSA compliance plan; and an overview of all training provided to employees and contractors.avart

In many ways, this is duplicative of the requirement for MOEs to submit detailed plans to NHTSA. If/when an MOE expands operations to all 50 states, this means they would have to have robust compliance teams that manage 50 individual applications and revisions for HAV operations in addition to the detailed, labor-intensive process of ensuring compliance with NHTSA guidelines.

States must also prepare their law enforcement entities to interact with HAVs, who will be responsible for enforcing traffic laws and testing procedures. Law enforcement officers will be empowered to ensure that HAV operators possess valid state driver’s licenses and have the proper training.

Liability and Risk Mitigation

NHTSA strongly recommends using driver education and emergency responder training programs to promote the safe deployment of HAVs.

Educating drivers on the limitations of their HAVs will be critical, particularly when the vehicles are mostly autonomous and only require intervention in hazardous situations or when exiting the Operational Design Domain (ODD – meaning when the vehicle is no longer operating under conditions where safety is reasonably certain).

In lower modes of automation (HAV 3 and lower, when driver must be prepared to intervene), NHTSA indicates that the licensed human driver is responsible for operating the vehicle, monitoring its performance, and/or is immediately prepared to drive if the HAV system is disengaged.

This also brings up the issue of driver negligence in lower-level HAVs. There remains a risk that drivers will place too much trust on the technology and become too distracted by cell phones, eating, conversing with passengers, or even consuming alcohol.

To combat this, NHTSA is encouraging states to develop “a consistent regulatory scheme to limit potential driver distraction [and] develop methodologies for enforcement to discourage hazardous vehicle operation…”

Yet NHTSA shied away from assigning liability to any entity for higher-level HAV operations. In the spirit of allowing for state experimentation (or, more likely, simply not knowing the best option yet), NHTSA stated that states must determine how to assign liability among:

  • Owners
  • Operators
  • Passengers
  • Manufacturers
  • Programmers
  • And other entities involved in development and deployment

To add to the potential confusion, states will then need to determine which of those entities must carry motor insurance.

Next Steps

The model state guidance is an adequate step in helping states cope with the deployment of autonomous vehicles, but significant challenges and unanswered questions remain.

Until NHTSA passes safety standards related to HAVs, states will have the ability to implement their own standards surrounding autonomous vehicle design and functions. This was the case last year, when California released draft regulations that would require HAVs to have steering wheels and a driver prepared to take over, if needed.

Those regulations were revised after California encountered significant opposition from Google and other HAV developers, yet remains an example of how NHTSA’s laissez-faire approach to HAVs has left a huge gray area that manufacturers are attempting to operate in.

NHTSA presented seven next steps following the release of this guidance:

  1. Public Comment: NHTSA will issue a Request for Comment on the Policy Statement and Model State Policy.
  2. Public Workshop(s): NHTSA will hold public workshops to discuss the Model State Policy.
  3. Stakeholder Engagement: Officials from NHTSA will meet with state officials implementing the Model State Policy to learn about their experiences and gather feedback.
  4. Education: NHTSA will assess opportunities to educate state officials on HAV technology in order to inform their policymaking and enforcement effors.
  5. Work Plan: To engage stakeholders that would particularly benefit from HAVs, NHTSA will communicate with environmental and disability advocacy groups to enact “policy refinements”.
  6. North American Cross-Border Coordination: NHTSA may reach out to Canada and Mexico to encourage them to use this model framework as well.
  7. Continual Coordination: The Vehicle Performance Guidance and Model State Policy sections will mature in conjunction with one another, evolving to meet changing needs and technologies.





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