Key Takeaways: NHTSA’s Voluntary Guidance for Automated Driving Systems

by Miller Canfield

Miller Canfield

The U.S. Department of Transportation ("DOT") released its revised federal policy for automated vehicles, entitled “Automated Driving Systems 2.0: A Vision for Safety” (the “Voluntary Guidance”) on September 12, 2017, and at the same time announced it is working on a 3.0 version to be released next year. Some key takeaways from the Voluntary Guidance: 

• New Acronym: “ADS”. Last year’s Federal Automated Vehicles Policy document referred to automated vehicles and systems as “HAVs”.  The Voluntary Guidance now refers to them as “Automated Driving Systems," or “ADSs."

• Voluntary. The Voluntary Guidance emphasizes that it is voluntary and that it imposes no reporting, data keeping or other requirements on industry or on state and local governments: “This Guidance is entirely voluntary, with no compliance requirement or enforcement mechanism." Rather, the sole purpose of the Voluntary Guidance is to “support the industry as it develops best practices in the design, development, testing, and deployment of automated vehicle technologies.”

• 12 Areas of Safety Concern. The Voluntary Guidance calls on the industry to focus on 12 areas related to safety, which basically encapsulate the 15 areas contained in last year’s Policy and continues the themes developed in that previous policy guidance.

• Human Machine Interface (“HMI”). One of the 12 safety areas of attention relates to shared control between ADSs and human drivers in SAE Level 2, 3 and 4 vehicles. The Voluntary Guidance advises that, at minimum, an ADS should warn the human driver when the ADS is:

- “Unavailable” for use;

- Experiencing a malfunction; and/or

- Requesting control transition from the ADS to the operator.

As more vehicles requiring shared control emerge, the “sufficiency of warnings” given to the human driver will likely become a hot topic in product liability litigation. This is the one safety area that may have an almost immediate impact on product liability litigation involving ADSs. 

During the last eight months, Miller Canfield has engaged in research on the impact ADS vehicle crashes will have on existing design defect tests, which includes a projection on the future of product liability litigation involving ADSs. Miller Canfield will be publishing a white paper and a presenting its findings at the University of Michigan’s MCity Fall Meeting in November.

• Role of State Governments. Section 2 of the Voluntary Guidance delineates the role of the federal and state governments, similar to last year’s Policy: NHTSA remains responsible for regulating the safety design and performance aspects of motor vehicles and motor vehicle equipment, while states continue to be responsible for regulating the human driver and vehicle operations.

• Comparison to Last Year’s Policy. While much of the Voluntary Guidance continues the themes and approaches announced in last year’s Policy, there are a few key differences. First, this Voluntary Guidance makes it clear that there will be no pre-market approval process as potentially suggested in last year’s Policy, but that the industry will still follow the self-certification process. Second, the Voluntary Guidance also confirms that NHTSA and DOT will not be mandating new reporting requirements, leaving intact the system that had previously existed.

• Squaring the Voluntary Guidance with H.R. 3388. On September 6, 2017, the U.S. House of Representatives approved the “Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act” (or the “Self Drive Act”). The bill instructs NHTSA to adopt comprehensive Federal Motor Vehicle Safety Standards (FMVSS) for automated vehicles, and authorizes NHTSA to grant exemptions from FMVSS for up to 25,000 vehicles for an entity in the first year and up to 100,000 in the third and fourth years. However, in contrast with the Voluntary Guidance, the bill would require manufacturers to develop cybersecurity plans for detecting and responding to cyberattacks on vehicles while also coming up with ways of protecting personal data of owners. The bill also requires US DOT to develop safety assessment criteria to be submitted by companies developing self-driving vehicles. Since the U.S. Senate has yet to consider the bill and has been developing its own legislation, these issues may yet be harmonized with the Voluntary Guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Miller Canfield | Attorney Advertising

Written by:

Miller Canfield

Miller Canfield on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.