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DOT Releases Policy for Driverless Vehicle Testing and Deployment on U.S. Roads

Summary:  On September 19, 2016, the U.S. Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) released a forward thinking guidance document titled, “Federal Automated Vehicles Policy” (Policy), to aid all stakeholders involved in shaping the future of transportation.  The Policy and associated fact sheets can be found on DOT’s automated vehicle website.  This guidance document has been heavily anticipated due to the rapid advancements in autonomous vehicle technology and the magnitude of the safety and environmental benefits the application of that technology is expected to achieve.  In short, autonomous vehicles will absolutely and totally change transportation forever.

The Policy

The Policy announces a flexible approach for the federal government’s deployment of the standards and guidance that will govern the use of automated vehicles nationwide.  Safety, design and operational elements need to be consistent so that manufacturers, safety regulators and the public all understand what the vehicles can and should be able to do.  The technology is moving so fast and has such incredible lifesaving possibilities, that DOT is issuing the Policy as agency guidance rather than rulemaking at this time “in order to speed the delivery of an initial regulatory framework and best practices to guide manufacturers and other entities in the safe design, development, testing and deployment of Highly Autonomous Vehicles (HAVs).” 

The Policy document focuses primarily on HAVs.  Yet, even the effort to define an HAV demonstrates why the federal policy and guidance is necessary.  There are differing views on what a vehicle must be able to do before it is considered autonomous.  The Policy defines automation (see below), which will help clarify design, manufacture, rulemaking, and insurance requirements, among others.

Note that most of the Policy is effective immediately upon publication, but there are elements, such as the Safety Assessment for HAV Manufacturers and Other Entities and the Safety Assessment for L2 Systems, described in Section I, Vehicle Performance Guidance for Automated Vehicles, that will become effective upon the Paperwork Reduction Act review process and publication in the Federal Register (FR).

NHTSA Request for Comment

In their pursuit toward autonomous vehicle deployment and the creation of substantive and reasoned regulations, NHTSA states that the process will be iterative, changing based upon what the industry learns during testing and through public comments.  In that vein, NHTSA is issuing a Request for Comment (RFC) on the Policy.  That RFC will be open for sixty (60) days from publication in the FR.  According to an attorney in NHTSA’s Office of Chief Counsel, the Policy should be published in the FR on Friday September 23.  It is crucial that all stakeholders with interests in this fast-moving innovation provide comments on the Policy and the future implementation of the regulations going forward.

NHTSA states that the Guidance “should be considered by all individuals and companies manufactur­ing, designing, testing, and/or planning to sell automated vehicle systems in the United States.  These include traditional vehicle manufacturers and other entities involved with manufacturing, designing, supplying, testing, selling, operating, or deploying highly automated vehicles.  These entities include, but are not limited to, equipment designers and suppliers, entities that outfit any vehicle with automation capabilities or HAV equipment for testing, for commercial sale, and/or for use on public roadways, transit companies, automated fleet operators, ‘driverless’ taxi companies, and any other individual or entity that offers services utilizing highly automated vehicles…This Guidance is intended for vehicles that are tested and deployed for use on public roadways.  This includes light-, medium-, and heavy-duty vehicles…”

The Policy in More Detail

Definition of Automation

The Policy offers a single federal definition for the levels of automation.  DOT adopts SAE International’s definitions for levels of automation:

  • “At SAE Level 0, the human driver does everything;
  • At SAE Level 1, an automated system on the vehicle can sometimes assist the human driver conduct some parts of the driving task;
  • At SAE Level 2, an automated system on the vehicle can actually conduct some parts of the driving task, while the human continues to monitor the driving environment and performs the rest of the driving task;
  • At SAE Level 3, an automated system can both actually conduct some parts of the driving task and monitor the driving environment in some instances, but the human driver must be ready to take back control when the automated system requests;
  • At SAE Level 4, an automated system can conduct the driving task and monitor the driving environment, and the human need not take back control, but the automated system can operate only in certain environments and under certain conditions; and
  • At SAE Level 5, the automated system can perform all driving tasks, under all conditions that a human driver could perform them…

Using the SAE levels, DOT draws a distinction between Levels 0-2 and 3-5 based on whether the human operator or the automated system is primarily responsible for monitoring the driving environment.  Throughout this Policy the term HAV represents SAE Levels 3-5 vehicles with automated systems that are responsible for monitoring the driving environment.”

Policy Structure

The Policy is divided into four sections:

  1. Vehicle Performance Guidance for Automated Vehicles:  This section outlines best practices for the safe pre-deployment design, development and testing of HAVs prior to commercial sale or operation on public roads.  It contains a voluntary 15 point “Safety Assessment” (see attachment) to be utilized when designing, manufacturing and deploying HAVs.
  2. Model State Policy: The Policy document makes it clear that States still retain vehicle licensing and registration, traffic enforcement and traditional vehicle regulations roles.  This section of the Policy identifies areas the State should consider when adopting regulations so they are consistent with national policies and procedures for testing and deploying the vehicles.
  3. NHTSA’s Current Regulatory Tools:  As stated in the Policy, “NHTSA will continue to exercise its available regulatory authority over HAVs using its existing regulatory tools:  interpretations, exemptions, notice-and-comment rulemaking, and defects and enforcement authority.  NHTSA has the authority to identify safety defects, allowing the Agency to recall vehicles or equipment that pose an unreasonable risk to safety even when there is no applicable Federal Motor Vehicle Safety Standard.”
  4. New Tools and Authorities: The current rules were developed when automated vehicles only existed in Sci-Fi movies.  The new technology mandates that the way we have created safety regulations and devices will need to be reviewed and updated to meet the new way the vehicles perform.  This section discusses potential new regulatory tools.
© 2019 Beveridge & Diamond PC


About this Author

David McCray, Infrastructure development, Beveridge and Diamond Law Firm
Of Counsel

David McCray’s practice focuses on major project and infrastructure development, including environmental reviews, permitting and approvals from a wide range of federal and state natural resources agencies, and litigation defense of project decisions and policies.  He counsels clients on regulatory matters and litigation regarding issues such as the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), climate change, water, wetlands, project mitigation, and mobile source air toxics and related health impacts.

Fred Wagner, Attorney, Beveridge and Diamond Law Firm

Fred Wagner served as Chief Counsel of the Federal Highway Administration (FHWA) from 2011 to 2014.  His practice focuses on major project and infrastructure development, including environmental reviews, permitting and approvals from a wide range of federal and state natural resources agencies, and litigation defense of project decisions and policies. He leads the Firm’s Natural Resources and Project Development Practice Group.

Mr. Wagner originally joined Beveridge & Diamond in 1991 and was named a Principal in 2000. In December 2010, he was appointed by President Obama as Chief Counsel of FHWA, an agency of the U.S. Department of Transportation (DOT).

As FHWA Chief Counsel, Mr. Wagner assisted DOT leadership on the highest priority legislative and regulatory issues, and partnered with the U.S. Department of Justice in the defense of litigation challenging transportation projects of national significance. He managed all legal matters concerning the $40 billion Federal-Aid Highway program, including environmental and natural resources issues for highway and multi-modal transportation projects across the U.S.  He represented FHWA on the Obama Administration’s Transportation Rapid Response Team, a special multi-agency task force focused on project delivery and environmental review reforms.

Mr. Wagner was actively involved in numerous high-profile projects at FHWA, including the Ohio River Bridges in Kentucky and Indiana, the Bonner Bridge in North Carolina, the Tappan Zee Bridge in New York, the Birmingham Northern Beltline in Alabama, the Zoo Interchange in Wisconsin, the State Road 520 Bridge and HOV project in Washington State, the Presidio Parkway in San Francisco, California, and the Elgin-O’Hare Expressway in Chicago, Illinois.

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