The National Highway Traffic Safety Administration’s recently issued safety guidelines for self-driving cars would upend five decades of federal auto-safety policy by embracing a system of pre-market approval.

The potential for such a dramatic shift tops a list of concerns with the proposed Federal Automated Vehicles Policy that the R Street Institute highlights in new public comments filed jointly with the Competitive Enterprise Institute and TechFreedom.

A pre-market approval system would require manufacturers to delay deploying technologies as they await regulatory approval from a process that, based on the experience of the Federal Aviation Administration, could take literally years to complete. In our comments, we strongly recommend that Congress exercise great scrutiny before it considers granting the NHTSA any such authority. This is particularly important since, in the agency’s own words, under the current system: “instances of non-compliance [with federal motor vehicle safety standards], especially non-compliance having substantial safety implications, are rare.”

Other areas of concern raised in the joint comments include:

  1. Vehicle performance guidance for highly automated vehicles

Allowing automated vehicle owners to opt out of the mere collection of personally identifiable information could undermine data analysis of all kinds, including crash reconstruction. Denying manufacturers the ability to collect needed data also could negatively affect the evolving tort liability environment and the development of new insurance products. The NHTSA needs to find a way to better balance these elements as it continues to develop a robust consumer-notice system for data usage.

The agency also needs to avoid attempting to regulate the vehicles’ so-called “ethical” considerations. The issues raised by philosophical abstractions like the “trolley car problem” are better addressed simply by modernizing the rules of the road in ways that ease safe compliance for automated vehicles and reduce the need for vehicles to exercise complex judgments.

Finally, the NHTSA needs to clarify that its FAVP guidelines are not compliance yardsticks for manufacturers, particularly when it comes to state-level permitting policy. At best, the guidelines only represent today’s best practices. They will evolve—they have to evolve—as more is learned by manufacturers. We suggest as an alternative that federal regulators focus on continually revisiting and refining its 15-point voluntary checklist and avoid the urge to cement more restrictive standards into law.

  1. Model state policy

The NHTSA should be commended for explicitly delineating and affirming current federal and state authorities. But the agency needs to chart a different course when it comes to mandating compliance with the FAVP, as in its suggestion that states require manufacturers to certify their “accordance” with the 15-point safety checklist.

By its own terms, the FAVP is explicitly voluntary. It did not go through notice-and-comment rulemaking and, thus, there remain seriously problematic provisions within the safety checklist that have not been subjected to rigorous scrutiny. If the guidance is treated as binding, as it has been by states like California, it’s not at all clear what that compliance would entail or even what regulator would assess it.

As it considers revisions to the FAVP, the NHTSA should make clear that it is inappropriate for states to mandate compliance with a nonbinding federal guidance document.

  1. NHTSA’s current regulatory tools

It’s not just the NHTSA’s proposed regulatory tools that are a source of concern. The agency also needs to be much more transparent about how it uses its existing tools. The guidance should include a summary table containing information on requests for letters of interpretation; requests for temporary exemptions from existing standards; petitions for rulemaking regarding vehicle automation systems; and what enforcement actions NHTSA has taken against vehicle-automation-system manufacturers. The table also should contain all relevant information, including dates, the statutory and regulatory provisions at issue, the vehicle component at issue and a description of any actions NHTSA has taken. Parties looking to engage should not have to be industry insiders to understand how to partake in the process.


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