The U.S. Transportation Department rolled out new guidance this week for driverless car manufacturers, placing the Trump administration’s deregulatory touch on Obama-era recommendations that put a greater restraint on the industry.
The new voluntary guidelines—published by DOT and the National Highway Traffic Safety Administration—follow the passage of legislation by the U.S. House of Representatives that gives a more assertive role for the federal government in allowing up to 100,000 autonomous vehicles to test-drive in the nation’s streets.
All of this activity at the federal level is setting up a potential clash with state regulators, including transportation officials in California, as they develop their own regulatory schemes. California officials said they are reviewing the new guidance and expect to release final state regulations by the end of the year.
We spoke with Susan Lent in Washington, head of Akin Gump Strauss Hauer & Feld’s infrastructure and transportation practice, about these changes and what they mean for the industry and her practice.
The conversation that follows was edited for length and clarity.
The Recorder: What’s your biggest takeaway from the federal autonomous vehicles guidance?
Susan Lent: The new guidance largely tracks the 2016 guidance but makes it clearer that the framework is voluntary and that DOT will rely on its defect, recall and enforcement authority as opposed to ex ante rules to promote safety. This means that companies innovating in this space will largely be responsible for ensuring safety in the first instance and the new guidance builds on the 2016 guidance in offering a safety assessment framework.
The Recorder: The U.S. House just passed self-driving car legislation. Do you have any sense of how it might fare in the U.S. Senate?
Lent: Senators [John] Thune and [Gary] Peters are working on bipartisan legislation and they have said they hope to have a draft ready in early to mid-October. The Senate must determine whether to include trucks over 10,000 pounds in the legislation. The House did not include trucks, but chairman Thune supports including trucks. Other pending issues include whether the Senate will pre-empt states from regulating vehicle standards and the number of exemptions to federal safety standards NHTSA may authorize.
The Recorder: What are the biggest concerns of your clients in the connected car space these days?
Lent: They vary but range in scope from ensuring there is a clearly defined safety regime during the testing and deployment phase, a clear process for seeking exemptions from the Federal Motor Vehicle Safety Standards, ensuring that there are not a patchwork of conflicting state requirements, and defining and managing liability.
The Recorder: What is the biggest issue on your plate as a lawyer in this space?
Lent: I would say the biggest issue is managing liability. That is why federal pre-emption is so important. Since this is a new industry we are thinking through where there could be potential liability and how to protect our clients through compliance program, insurance and indemnification provisions in contracts. .
The Recorder: What do you think all these federal developments on autonomous vehicle policy and legislation mean for a state like California that is developing its own rules?
Lent: States like California, Nevada, Florida, Texas, Michigan and others have all adopted AV regulations.The NHTSA Guidance and House bill would clarify where states should regulate and in particular focus states on licensing and road operations rather than vehicle standards.
The Recorder: What are the legal issues raised by autonomous vehicle development and regulation that aren’t getting enough attention?
Lent: There are a series of questions regarding assignment of liability in a variety of contexts that are not receiving much attention yet but will be critical to promoting deployment and adoption of AVs on our roads.
The Recorder: Will you be ready to put down your keys and give driverless cars a try when they hit the road?
Lent: I certainly hope to. As someone who deals with D.C. traffic on a regular basis, safer and less stressful commuting would be very much welcomed.