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Shifting Gears: NHTSA Seeks Comment on New Framework Governing the Safety of Automated Driving Systems

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.

© 2022 Beveridge & Diamond PC National Law Review, Volume X, Number 344

About this Author

Thomas Richichi Litigation Attorney Beveridge & Diamond Washington, DC

Tom has 30 years of experience litigating in state and federal trial courts.

He has served as lead counsel in numerous cases at the appellate level, with representations including arguments before the various federal circuits and the United States Supreme Court. Tom's experience includes matters involving environmental, international, transportation, human health risk, and consumer products issues. He has served as lead counsel on numerous complex litigation and enforcement matters involving private parties, state and federal agencies, and the U.S. Department of Justice and its...

Daniel B. Schulson Environmental & Administrative Attorney Beveridge & Diamond Washington, DC

Daniel Schulson applies the insight and experience he gained from working in the Office of General Counsel at the U.S. Environmental Protection Agency to clients’ challenges on a broad array of issues.

He assists clients with many aspects of environmental and administrative law, including compliance counseling, permitting, due diligence, audits, commenting on agency rulemakings, administrative enforcement defense, and litigation.

Examples of Dan’s experience include:

  • Providing counsel to the U.S. government-appointed Independent...
Joshua H. Van Eaton Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Joshua H. Van Eaton helps clients resolve high-stakes compliance, enforcement, and litigation matters.

He brings the perspective gained from a distinguished U.S. government service career to provide clients with strategic counsel on air, water, and waste issues with a focus on mobile source emissions. He also litigates those matters and advises on proactive environmental compliance strategies.

Prior to joining Beveridge & Diamond, Josh served as Senior Trial Attorney in the Environmental Enforcement Section of the Environment and Natural Resources Division (ENRD) of the U...

Anthony G. Papetti Environmental Litigation Attorney Beveridge & Diamond New York, NY

Anthony’s practice focuses on general environmental litigation and automotive regulatory compliance.

For the past two years, his experience has been extensively involved in the Department of Justice-appointed Independent Corporate Compliance Monitor and Audit matter in connection with the Volkswagen AG diesel emissions proceedings. During this experience, Anthony has gained tremendous insight into complex corporate compliance management systems and the automotive product development process, including both domestic and international vehicle emissions certification...

Nicole J. Waxman Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Nicole focuses on complex environmental litigation and a diverse array of regulatory matters.

Nicole untangles complex environmental law matters into manageable tasks to ensure that clients achieve their desired outcomes. She has experience with a variety of issues arising under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and handles regulatory compliance issues related to mobile source emissions under the Clean Air Act (CAA).

Prior to joining B&D, Nicole clerked in the civil litigation practice area of a mid-Atlantic law firm....