Key Takeaways

• What Happened: The Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) issued an advanced notice of proposed rulemaking (ANPRM) on December 3, 2020, seeking comments and stakeholder input as part of a phased approach to the development of a new regulatory framework for automated driving systems (ADS). The ANPRM is intended both (1) to inform stakeholders of its efforts to address ADS safety and functionality, and (2) to solicit their involvement in that ongoing effort.
• Who Should Participate: Stakeholders engaged in the design, development, manufacture, and sale of ADS, including:
  • businesses that manufacture, or intend to manufacture, vehicles with ADS;
  • software developers and programmers that develop and integrate ADS and/or their component parts; and
  • state-level transportation agencies.
• What To Do in Response: Stakeholders may inform NHTSA’s proposed rule by submitting comments, including empirical data and functional approaches, that could serve to inform the ongoing efforts to develop an ADS framework by February 1, 2021.

NHTSA’s Proposed ADS Framework

NHTSA issued an ANPRM seeking public input on its development of a framework for ADS safety on December 3, 2020. The framework “would objectively define, assess, and manage the safety of ADS performance, while ensuring the needed flexibility to enable further innovation.” Although NHTSA has previously issued non-binding ADS guidance documents and taken limited regulatory action, this action is the first time NHTSA has endeavored to move forward with the development of a comprehensive framework to address the regulation of ADS safety and performance, albeit as part of a phased approach. Significantly, the solicitation of that input is directed at ADS itself, and not (as with prior notices) on the design of vehicles that may incorporate ADS.

NHTSA recognizes that the technology for ADS is still developing. Accordingly, rather than prescribe specific technical requirements for ADS based on incomplete safety data, the contemplated framework adopts performance-oriented approaches to ensure ADS safety and effectiveness. NHTSA anticipates that the resulting framework will by a dynamic one that will include a variety of different approaches, such as formal regulation of reporting and disclosure requirements, guidance documents describing industry best practices, and research. NHTSA plans to take a phased-in approach so regulatory requirements are tailored to the agency’s safety performance priorities yet flexible enough to adapt to evolving ADS technology and its complexity.

The proposed framework elaborates on existing ADS guidance documents and encompass both voluntary and regulatory monitoring mechanisms and best practices, such as Voluntary Safety Self-Assessments (VSSA) and the AV TEST Initiative where state and local government, automakers, and ADS developers exchange information on latest developments. It also incorporates process measures, such as reducing risk during the vehicle design process through increased design reliability, and engineering measures, such as performance metrics and test procedures. NHTSA seeks stakeholder input on exactly which process and engineering measures should be included in the framework.

The contemplated framework will likely focus on the following four critical ADS safety functions:

1. Sensing: how ADS receives information about its environment through sensors (e.g., cameras, radar, LiDAR, GPS, etc.);
2. Perception: how ADS detects and categorizes other road users (e.g., vehicles, motorcyclists, pedestrians, etc.), infrastructure (e.g., traffic signs, signals, etc.), and conditions (e.g., weather events, road construction, etc.); 
3. Planning: how ADS analyzes a situation, plans the route it will take to its intended destination, and makes decisions on how to respond appropriately to the road users, infrastructure, and conditions detected and categorized; and
4. Control: how ADS executes the driving functions necessary to carry out that plan.

Notably, the ANPRM leaves open the possibility that NHTSA will develop Federal Motor Vehicle Safety Standards (FMVSS) that are specific to ADS. FMVSS are generally mandated for technologies that have reached a level of maturity that satisfies statutory prerequisites that an FMVSS be objective and practicable. To that end, NHTSA is seeking comment on two potential approaches to a new FMVSS for ADS: one that could be applied on an “if-equipped” basis to traditional vehicle classes so that the FMVSS would only specify performance requirements for ADS-equipped vehicles, as opposed to mandating the installation of ADS in all motor vehicles; and a second that would apply the FMVSS to an entirely new subclass of ADS-equipped vehicles. Developing a new FMVSS specific to ADS, rather than requiring ADS-equipped vehicles to conform with an existing FMVSS, would ensure that the FMVSS can adapt to evolving ADS technology without the need for frequent modification.

Irrespective of the approach, FMVSS and other suggested regulatory mandates will need to address the prerequisites of (1) consistent and reliable assurance of safety, (2) performance-based technology neutrality, (3) predictability, (4) transparency, (5) efficacy, (6) equity, (7) consistency with market-based innovation, and (8) safety return relative resource availability.

NHTSA Seeks Responses to Specific Questions

The ANPRM poses 25 questions to stakeholders related to four topics:

1. the development of the safety framework;
2. the identification of additional NHTSA research that would be the most useful in developing the safety framework;
3. the sufficiency of the administrative mechanisms described in the ANPRM; and
4. NHTSA’s statutory authority to enact the ADS safety framework.

Specifically, NHTSA is soliciting comments about which aspects of the four primary ADS functions discussed above should be subject to separate federal regulations due to their high importance. Separately, NHTSA seeks comment on the appropriate administrative mechanisms for implementing the framework such as through guidance documents and formal regulations. These will be addressed in a subsequent B&D alert, but please contact us in the interim if you have questions or specific inquiries.

Stakeholders Should Submit Comments By February 1, 2021

Because NHTSA’s final ADS rule must be a “logical outgrowth” of its proposed rule, submitting comments on this ANPRM is an ideal opportunity to inform the nature and content of NHTSA’s proposal and its ultimate regulatory approach. Despite the natural uncertainty associated with a new administration in January, NHTSA is likely to continue the efforts to move forward with its involvement in regulatory oversight of ADS. Stakeholders who wish to be part of that dialogue should submit comments no later than February 1, 2021.

Beveridge & Diamond's Transportation practice helps clients address challenges associated with balancing ever-increasing transportation demands and environmental impacts and regulations, as well as anticipate emerging legal and regulatory issues, such as those associated with automated driving systems, autonomous vehicles, and connected transportation. For more information on the topics covered in this article, please contact the authors.