Tech Alert | October.05.2018
After months of preparation, the U.S. Department of Transportation ("USDOT") has released the third iteration of its informal guidance on the development and deployment of highly automated vehicles ("HAVs"). Known as "Automated Vehicles 3.0 - Preparing for the Future of Transportation," the document breaks new ground by setting out a vision for streamlining regulatory processes across agencies within the USDOT and establishing a national pilot program for automated technologies in different modalities of transportation.
AV 3.0 builds on the direction of "Federal Automated Vehicle Policy 2.0" ("FAVP 2.0") in seeking to resolve confusion about the legal significance of the document. In its latest version, the informal guidance moves away from the nomenclature championed by the Obama Administration in which the guidance was referred to as "policy," which created the impression that the guidance was compulsory.
Secretary Elaine Chao, in her remarks introducing the new guidance, stressed its voluntary nature by stating that "voluntary compliance and self-reporting actually help to improve safety, and we know this because this is the method that's used in the aviation sector."
That said, the release of AV 3.0 comes at a vital time, as both Congressional vehicles setting forth HAV policy appear to have stalled. In light of the delay of novel legislation, the role of informal guidance, as embodied in AV 3.0, has become more significant.
While technically voluntary, informal guidance plays an important role in signaling expectations to industry, particularly around safety standards, while also communicating to other regulatory jurisdictions, like state and local regulatory entities, the anticipated remit of federal authority. Thus, for firms operating in this space, it is wise to hew to the guidelines articulated in AV 3.0.
The reception of industry to the latest guidance has been largely positive, as the top-line policy vision articulated by the USDOT closely mirrors many of its priorities. Throughout the guidance, consistent emphasis is given to the need for safety and public confidence in automated technologies via regulation that is both flexible and technology-neutral. The thought in doing so is to accommodate innovation in a manner that allows market preferences, not prescriptive performance-based standards, to dictate direction.
The pilot programs to be initiated by USDOT agencies will not only enable parties to address outstanding gaps in research but are also intended to also promote regulatory harmony between agencies. This is crucial in the absence of Congressional direction, insofar as it fashions a level of regulatory certainty between agencies that will better allow for product planning and development.
Perhaps the highest profile example of the need for coordination within the USDOT umbrella occurred between the National Highway Traffic Safety Administration ("NHTSA")—charged with regulating the safety of passenger vehicles—and the Federal Motor Carrier Safety Administration ("FMCSA")—charged with regulating the safety of heavy trucks—while issuing interpretive guidance about whether or not automated systems could be considered "drivers" for purposes of compliance with their respective regulations. In doing so, the two came to virtually opposite conclusions. Under AV 3.0, a streamlined process of consultation will ensure consistency as regulators evaluate action concerning automation technologies.
As has been the case in the past, interested parties will have an opportunity to comment on the suggestions made within the document. While a formal request for comments has not yet been made, USDOT staff have intimated that there will likely be an opportunity to submit comments beginning in December of 2018.
 The House bill, the SELF DRIVE Act (H.R. 3388), has not moved since passing off the House floor over a year ago. Hopes that the Senate's AV START Act (S. 1885) would be introduced to the 2018 FAA Reauthorization, as a rider, appear to have been dashed. Now, moving forward, the Senate will likely attempt to move stand-alone legislation, once differences concerning forced arbitration agreements are resolved.