Yesterday, the Niskanen Center submitted comments to the National Highway Traffic Safety Administration (NHTSA) on its recent Federal Automated Vehicle Guidelines. Although we are happy to see NHTSA taking the first steps in helping to pave the way for the deployment of driverless cars, we have some concerns. A number of newly proposed authorities hold the potential to delay, or possibly stall, the advent of autonomous roadways.

The agency’s call for pre-market approval authority is especially troubling, as the likely result will be additional weeks, months, or possibly years of delay, resulting in thousands of fatalities on America’s roadways. Every day of delay results in almost 100 people killed and many thousands injured—most of them children. The agency’s proposed certification process also adds to the costs and timely rollout of autonomous vehicles, while ignoring its own historical commitment to manufacture self-certification. A final area of concern is the insinuation that NHTSA possesses the ability to regulate post-sale software updates to vehicles. We disagree. In fact, we point out that nowhere in these policy guidelines does the agency cite statutory authority for these supposedly existent powers.

Additionally, we argue that if NHTSA decides to pursue any of these new authorities through a legislative mandate, a cost-benefit analysis, as necessitated under Executive Order 12866, will be required.

From the executive summary:

Autonomous vehicles are at our doorstep. Recent advances in sensor technology, computer processors and artificial intelligence, and a wealth of data accumulation have helped feed the development of this transformative technology. Now, the biggest hurdle to deployment is state and federal regulatory policy. To that end, the National Highway Traffic Safety Administration’s (NHTSA) Federal Automated Vehicle Policy guidelines have taken an important step towards providing certainty in the regulatory landscape. However, some of the proposed authorities in the agency’s document could be a hindrance to widespread adoption of autonomous vehicles.

These comments address the toolkit of proposed regulatory authorities in the agency’s guidelines. In particular, the Niskanen Center will focus on our concerns related to pre-market approval, self-certification and hybrid certification/approval processes, and post-sale authority to regulate software changes. We also address the need for a thorough cost-benefit analysis of any new powers NHTSA seeks to adopt. Before concluding, we also include a very brief note on the topic of autonomous vehicle cybersecurity, and the ability for state-based torts to remedy potential consumer harms.

Read the full comments here.