A Paradigm Shift? Understanding the New Federal Automated Vehicles Policy

The US Department of Transportation, in a potential departure from the self-certification regime of the past, outlined a significantly expanded role for the Agency in its September 20, 2016 Federal Autonomous Vehicle Policy. In an unprecedented move, the Agency issued a detailed policy statement that includes:

• Tools that would lead to the addition of registration and certification with NHTSA for autonomous vehicle systems;
• Vehicle performance guidelines;
• A model state policy;
• A summary of NHTSA’s current regulatory tools; and
• New tools and authorities.

Stakeholder participation in the sixty-day public comment period for these proposed guidelines and policies is critical, as the Agency views this release as a starting point to advance safety technology.

The USDOT Guidance:

On September 20, 2016, the U.S. Department of Transportation (USDOT) issued new Guidance on autonomous vehicles that will set the stage for the testing and programming of driverless vehicles. Concerned with significant changes in vehicle safety offered by highly automated vehicles (HAVs) and a patchwork of state regulations assessing issues such as whether steering wheels and brake pedals are required, USDOT seeks to establish a level playing field by issuing vehicle performance guidelines, a model state policy, a summary of NHTSA’s current regulatory tools, and new tools and authorities.

These guidelines apply to all companies in the autonomous vehicle space including suppliers, testing companies, and original equipment manufacturers in light, medium and heavy duty vehicles. USDOT has clearly expressed that these guideline should apply to “entities that traditionally may not be considered ‘manufacturers’ (e.g., alterers and modifiers) under NHTSA’s regulations.[1] ”

This framework, however, is merely a guideline at this time and does not have the full force of regulatory action. The agency anticipates pursuing follow up actions on this Guidance and will continue its research in cybersecurity, testing, and other areas in the future. As technology changes, the agency expects the Guidance to evolve to match the environment.

Vehicle Performance Guidance

The Guidance includes a 15-Point Safety Assessment that provides a roadmap to achieve robust product and system design. The Assessment will include:

• The operational design domain: Manufacturers should define the operational design domain including roadway types, geographic area, speed range, environmental conditions and other constraints.
• Object and event detection and response systems: Organizations should have a documented process for assessing, testing, and validating autonomous vehicle systems to work under normal and other conditions.
• Minimal risk conditions: Manufacturers should have a documented process for moving to a minimal risk condition when a problem is detected in the system including during the occurrence of malfunctioning, degraded states or other operational issues.
• Validation methods: Testing and validation methodology should be developed to ensure a high level of safety within an automated system.
• Registration and certification to NHTSA: The Agency requests that manufacturers submit identifying information on the items they use in autonomous systems to NHTSA as well as provide concise information to human drivers on the system capabilities.
• Data recording and sharing: Manufacturers should adopt a documented policy to test, validate and collect data on events, incidents, and crashes to report failures, malfunctions, and degradations that can be stored and available for retrieval by NHTSA.
• Post-crash performance and behavior: Manufacturers should assess, test and validate the autonomous system and prevent use in autonomous mode if safety controls or sensors are damaged.
• Privacy considerations: Manufacturers should establish privacy policies and practices to ensure transparency, choice, respect for context, minimization, de-identification, retention, data security, integrity and access, and accountability.
• System safety and engineering safety practices: All companies in the value stream should have a robust design and validation process that verifies the subsystem as an individual component and within the complete vehicle architecture.
• Cybersecurity: All companies in the value stream should follow a robust development process to minimize safety risks including systematic and ongoing risk assessments following the NIST guidelines.
• Human-machine interface: Manufacturers should consider the drivers’ ability to remain alert and engaged in their environment.
• Crashworthiness: All autonomous vehicles must continue to meet NHTSA crashworthiness standards.
• Consumer education and training: Manufacturers should develop consumer and employee, dealer and distributor education and training to address the difference in using an autonomous vehicle.
• Ethical dilemmas and considerations: All companies should assess situations to ensure ethical judgments and decisions are made to foster safety, mobility and legality.
• Compliance with federal, state and local laws: Manufacturers should develop plans to detail how they will comply with all applicable laws, including traffic laws within the region of vehicle operation.

Model State Policy

The guidance includes a model state policy that seeks to clarify the division between federal and state responsibilities with regards to compliance and liability. The creation of the model policy would promote a consistent, unified national framework for regulation of motor vehicles with all levels of automated technology. The model policy does not mandate identical laws and regulations within each state, but rather lays the foundation for consistent laws that would not impede innovation and distribution of safety-enhancing automated vehicle technologies. The model framework envisions the following roles for the states:

• Administrative: The administration of autonomous vehicles in testing and use on public roads by states, manufacturers or other entities. This includes the identification of a lead agency, creation of jurisdictional automated safety technology committees, continued collaboration with the state automated safety technology committees and manufacturers, establishment and use of statutory authority to implement a framework and regulations, and development of internal processes regarding applications from manufacturers to conduct testing and issuing vehicle permits.
• Jurisdictional Permission to Test: Vehicle-specific permits authorizing manufacturers to test automated vehicles on the roadways should be decided in conjunction with law enforcement agencies to determine the specific parameters and locations in which testing may occur and when/where the permits should be displayed during testing.
• Deployed Vehicles: Drivers: The assessment of gaps in current regulations including: law enforcement/emergency response, occupant safety, motor vehicle insurance, crash investigations/crash reporting, liability, motor vehicle safety inspections, education and training, vehicle modifications and maintenance, and environmental impacts.
• Law Enforcement Considerations: Law enforcement officials and first responders must become educated on how to interact with drivers/operators in the testing and deployment of these vehicles.
• Liability and Insurance: States will be responsible for allocating liability among automated vehicle owners, operators, passengers, manufacturers, and others when an accident occurs. Additionally, states will need to determine who must carry the motor vehicle insurance which may significantly impact both consumer acceptance of highly autonomous vehicles and its deployment.

Current NHTSA Regulations

USDOT highlighted the current regulatory scheme and the four primary tools NHTSA has used to address new technologies: (1) letters of interpretation, (2) exemptions from existing standards, (3) rulemaking to amend or create new standards, and (4) enforcement of regulations that address safety defects. The agency sought to increase the efficiency of these current tools by committing to respond to requests for interpretation letters within 60 days, and respond to requests for exemptions within six months.

Other Regulatory Tools and Authorities

USDOT has expressed the possibility of expanding its regulatory toolkit with new authority to embrace:

• Safety Assurance: providing methods and tools to perform pre-market testing
• Pre-Market Approval: governmental inspection and certification of systems, which is a departure from the self-certified regime
• Cease and Desist: allowing the government to force manufacturers to take immediate action to mitigate safety risks
• Expanded Exemptions: raising the cap on vehicles subject to exemption
• Post-Sale Regulation of Software Changes: expressly granting the agency the right to regulate software updates and changes

USDOT also seeks new tools to expand its regulatory authority to support the new autonomous climate. These new tools include:

• Variable Test Procedures: expanding testing methods and procedures to incorporate real-world environments
• Functional and System Safety: translating the 15-point Safety Assessment from Guidance to actual regulation
• Regular Reviews: timely and regularly scheduled reviews of standards and test protocols to stay current with technology
• Additional Recordkeeping and Reporting: requiring additional recordkeeping on autonomous vehicles
• Enhanced Data Collection: enhancing and generating greater reporting requirements on performance
• Expert Network: creating connections to expand NHTSA’s expertise and knowledge base
• Hiring Tools: establishing a direct Agency hiring authority with term appointments and compensation flexibility to hire the best applicants with skills required in this area

Key Takeaways:

1. The Guidance may expand USDOT / NHTSA authority.

The new USDOT policy can be seen as a departure from the traditional NHTSA self-certification regime. If the guidelines, policies, and tools move from mere Guidance to regulation, the new mobility economy may be subjected to pre-approval, clearance and certification that will assess both traditional FMVSS compliance and security and privacy implications.

Unlike previous observations, this Guidance identifies critical weaknesses perceived by the USDOT including the Agency’s technical capabilities and need to engage experts in both hardware and software fields.

2. The Guidance holds OEMs, suppliers, vendors, software developers, mobility companies and others as fully responsible parties in the autonomous ecosystem.

The Guidance made it extremely clear that there will be no argument whether a supplier or software vendor would be responsible to adhere to regulations or should follow the issued guidelines. The scope was widely cast, applying to all weight of vehicles and including fleet operators, driverless taxi companies, commercial sales outlets, testing companies and the entire supply chain.

3. The Guidance is tech-agnostic.

Rather than driving the industry towards one particular solution, the Guidance does not mandate any technology solution. The guidelines emphasize the creation of policies, plans and procedures rather than the adoption of specific emerging technology. Additionally, the Agency turned to the SAE International definitions for the levels of automation, adopting the SAE definition over the original NHTSA levels of autonomy.

4. Responding with public comments is critical to the future of the autonomous vehicle.

The NHTSA is issuing a Request for Comment (RFC) on this policy which can be found at www.nhtsa.gov/AV or in the docket (NHTSA-2016-0090). The RFC will be open for sixty days. We encourage you to contact your Butzel attorney with regards to formulating and submitting comments or a discussion on the implications of this Policy for your company.

[1] U.S. Department of Transportation, Federal Automated Vehicles Policy – Accelerating the Next Revolution in Roadway Safety, September 2016.  Available at https://www.transportation.gov/AV

If you have any questions about this new policy, please contact the authors of this alert.

Jennifer Dukarski
734.213.3427
dukarski@butzel.com 

Christina Nassar
313.983.6946
nassar@butzel.com 

Claudia Rast
734.213.3431
rast@butzel.com 

Steve Goodman
202.454.2851
goodman@butzel.com