NHTSA Claims Jurisdiction Over Self-Driving Technology and Automotive Software Apps

Recently proposed enforcement guidance issued by the National Highway Traffic Safety Administration (NHTSA) seek to expand the jurisdiction of the regulatory agency to include not only physical motor vehicle equipment, but also software and apps vehicles use to operate vehicles remotely, as emerging self-driving technology continues to cause a debate over safety and unimpeded innovation. 

NHTSA issued a draft Enforcement Guidance Bulletin (PDF) on April 1, explaining how it interprets the National Traffic and Motor Vehicle Safety Act (“Safety Act”) to provide the agency with authority over emerging technologies, such as software and mobile apps that are not necessarily parts of the vehicle themselves, but interact with the control and operation of the car or truck.

Given the agency’s lack of experience in software and app regulation, many experts from the auto industry have expressed concern that the new guidance may hinder the production of new vehicle safety software technology, by subjecting the development, testing and implementation to government regulation.

Under the Motor Vehicle Safety Act, the NHTSA regulates essentially every component of a vehicle that is introduced into the market, with the primary focus of that regulatory authority aimed at the physical components. However, as the automotive industry enters into a much more technology based era, the NHTSA has reinterpreted its jurisdiction to extend to software, including associated programs, instructions, code, and remotely accessed apps that are arguably not motor vehicle systems, parts, or components.

The advancement in vehicle safety technology is largely dependent upon software development companies that currently are not under federal regulations or guidance when presenting new technology toward evolving trends in the automotive field. These new technologies include autonomous vehicles and collision awareness software, which could potentially save up to 30,000 lives per year that are lost to preventable traffic collisions.

Some critics warn that software and app developers would be subject to NHTSA recall obligations based on errors or defects in the products, which could significantly affect the development of applications that can be used in conjunction with motor vehicles. They warn that the new interpretation of the law could slow down vehicle safety advancements.

The NHTSA introduced the enforcement guidance for information purposes and will be accepting public comments up until the May 2, 2016 deadline. After that, the agency will review how the potential jurisdiction expansion will impact the market. In addition to the NHTSA push for extended jurisdiction, the agency is also being told by many leading automobile industry engineers and experts to slow down the process of proposing written guidance for self-driving vehicle technology.

Self-Driving Technology Concerns

In January 2016, the NHTSA announced it would begin working on producing guidance for automakers wishing to enter self-driving vehicles into the market, which many engineers, safety advocates and automakers have disagreed with, claiming the technology has not been perfected thoroughly enough to have binding guidance and that a slower, more deliberative approach to evolve with the technology would be more effective.

According to NHTSA administrator, Mark Rosekind, guidance is necessary for the automotive industry because self-driving technology is already being incorporated into vehicles, pinpointing that Tesla has already incorporated an “autopilot” function in one of its cars that enables the vehicle to steer down the highway automatically, change lanes and adjust speed in response to traffic.

Rosekind further stated that the self-driving technology is still evolving and automakers are learning from the unanticipated situations the vehicles encounter that the software has not been written to handle. Rosekind further stated that without guidance or federal instructions, “people are just going to keep putting stuff out on the road with no guidance on how we do this the right way.”

There are many obstacles to still overcome in the progression of self-driving vehicles. Unanticipated obstacles such as poorly marked pavement, including parking lots, driveways can confuse current versions of the technology due to the reliance on sensors to identify marked lanes. Additional obstacles include interferences with sensors from bad weather, recognizing traffic control devices and signs, and taking directions from roadway patrol officers.

According to Mark Golden, the executive director of the National Society of Professional Engineers, putting vehicles with the current self-driving technology on roadways would be “dangerous, impractical and a major threat to the public health, safety and welfare.”

Google has pushed for Congress to give the NHTSA new powers to grant the company expedited permission to sell cars without steering wheels or pedals, as the company has been working for years on autonomous driving vehicles.

General Motors has also expressed to a Senate committee that the automaker plans to deploy self-driving cars within the next few years through a partnership with the ride-sharing service Lyft.