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By Mike Spector 

Last October, Tesla Motors Inc. Chief Executive Elon Musk heralded the arrival of the company's autonomous-driving technology, inviting owners of its electric cars to download software allowing its cars to operate themselves under certain conditions.

His message to owners on its website: "Your Autopilot has arrived."

Nine months later, the National Highway Traffic Safety Administration may have its first substantive chance to weigh in on whether the system is fit for U.S. roads.

While the auto-safety agency has been an advocate of many of the technologies Tesla uses for its Autopilot system, it had virtually no power to stop or impose requirements on how the auto maker released it. NHTSA's decision to open an initial investigation into a fatal May crash of a Tesla Model S using Autopilot gives it the first chance to flex regulatory muscle.

The crash, which killed motorist Joshua Brown, is the first known fatality connected to Tesla's autonomous-driving system. Autopilot technology has been used in thousands of Tesla sedans and SUVs on American roads since October, but regulators until now had left it to Tesla and its car owners to use the system responsibly.

U.S. officials are currently powerless to approve or disapprove advanced systems such as Tesla's Autopilot unless they run afoul of regulations that address car steering wheels, brakes and seat belts designed for human operators. Unlike the U.S. Food and Drug Administration, which approves drugs and devices meant to save lives, NHTSA's oversight is often reactive.

"NHTSA has no premarket regulatory authority," David Strickland, a former agency head who now represents auto makers pursuing driverless technologies at law firm Venable LLP, said on Friday. "The only thing the agency can do is make a decision whether the vehicle is noncompliant with the existing federal motor vehicle safety standards."

To date, few such standards exist for autonomous or semiautonomous vehicles, like the Model S. Tesla tweaked the system earlier this year after drivers posted YouTube videos of themselves engaging in dangerous behaviors such as reading a newspaper while the system was engaged, and took several steps to warn drivers to remain alert and ready to intervene while behind the wheel.

Regulators are preparing to release guidelines for automated vehicles in July that attempt to balance adoption of promising technologies while ensuring they're safe. Companies developing driverless cars -- including Alphabet Inc.'s Google and Tesla -- have expressed reservations about the regulatory oversight, contending it could delay widespread deployment. But they support general guidelines that aim to avoid conflicting rules when cars drive themselves across state lines.

NHTSA officials are discussing steps that include developing new safety standards that driverless-car systems must meet; steering auto makers toward potential third-parties to certify technologies; and seeking congressional authority to approve such systems, said a person familiar with the matter. But regulators share industry concerns that undertaking new rules or legislation could take years, prolonging limited oversight of driverless-car features or resulting in new policies that are soon eclipsed by the latest technological developments.

The upshot is the July guidelines will lack authority when it comes to oversight of the new technologies being introduced in new cars and light trucks. The agency hasn't made any final decisions on the coming guidelines, which aim to make recommendations for states and other local governments to avoid conflicting patchworks of rules across the U.S.

The circumstances surrounding Mr. Brown's accident also raise questions about NHTSA's ability to make immediate changes. While the Autopilot system didn't detect an truck making a left turn in front of Mr. Brown's Tesla, there is evidence suggesting he was also not paying attention.

The truck driver involved in the collision said he believed Mr. Brown was watching a movie at the time of the wreck. Police found a portable DVD player in the Tesla car but haven't confirmed whether it was on during the crash, said Florida Highway Patrol Sgt. Kim Montes.

Tesla, while expressing condolences to Mr. Brown's family and friends, said the death represented the first in more than 130 million miles driven with the system activated. The Palo Alto, Calif., company said it immediately alerted regulators to the incident.

A NHTSA spokesman declined to comment.

Some feel regulators could have moved faster once the YouTube videos emerged. "Those should have been key markers for the agency," said Sean Kane, founder of consulting firm Safety Research & Strategies Inc., who has advised lawyers in lawsuits against auto makers, though not Tesla. He added that car-safety regulators are often outgunned and outspent by auto makers.

NHTSA officials have become more proactive policing auto makers since a new chief, Mark Rosekind, took the helm at the end of 2014 amid widespread criticism that the agency missed safety problems including faulty ignition switches in older General Motors Co. cars now linked to 124 deaths.

With driverless cars, the agency has cited potential conflicts with existing regulations, such as with a future vehicle that doesn't employ physical brakes. NHTSA officials have said they would consider waiving certain existing rules in isolated cases if auto makers can demonstrate technologies have significant safety benefits.

NHTSA officials earlier this year said a computer could be considered a driver for regulatory purposes in response to a query from Google, which is racing to develop fully autonomous cars. But U.S. Transportation Secretary Anthony Foxx attempted to temper the finding by emphasizing that "the burden remains on self-driving car manufacturers to prove that their vehicles meet rigorous federal safety standards."

Transportation Department inspector general audits released in the past 18 months faulted regulators for relying too much on auto makers to report safety problems, lapses screening and documenting consumer complaints and lagging training for employees. The agency pledged to follow recommendations in the reports.

NHTSA, meanwhile, also found room for improvement, including putting auto makers on notice over safety issues even when they lack evidence to open formal investigations.

(END) Dow Jones Newswires

July 01, 2016 15:55 ET (19:55 GMT)

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