Autonomous vehicles: The legal landscape of DSRC in the United States

1. Introduction

In January 2016, President Barack Obama unveiled an ambitious 10-year, US$4 billion investment to accelerate the development and adoption of fully autonomous vehicles across the country. Shortly thereafter, the National Highway Traffic Safety Administration (“NHTSA”), the agency within the U.S. Department of Transportation (“DOT”) tasked with reducing injuries and fatalities on the nation’s roadways, promised that “within six months NHTSA will propose best-practice guidance to industry on establishing principles of safe operation for fully autonomous vehicles.”

Later in 2016, the NHTSA took three significant steps toward curbing existing regulations that hamper the development of autonomous technology. First, in March 2016, John A. Volpe of the National Transportation Systems Center released a Review of Federal Motor Vehicle Safety Standards for Automated Vehicles (the “Review”) for the DOT. The Review details the existing safety standards that inhibit the sale of autonomous vehicles. Second, on September 20, 2016, the NHTSA released its first “Federal Automated Vehicles Policy” (the “Policy”). “This policy,” Secretary of Transportation Foxx said, “is an unprecedented step by the federal government to harness the benefits of transformative technology by providing a framework for how to do it safely.” Third, on December 13, 2016, the NHTSA released a proposed rule (“Standard 150”) that would make V2V communications mandatory on all new light-duty vehicles. “Advanced vehicle technologies may well prove to be the silver bullet in saving lives on our roadways,” said NHTSA Administrator Mark Rosekind. Thus far in 2017, the NHTSA has continued its momentum towards utilizing new technology to improve safety by announcing new V2I guidance in January 2017.

In last year’s edition of this white paper, we noted that a comprehensive regulatory framework for autonomous vehicles was “conspicuously absent.” This last year, however, saw the advent of new policies and rules that represent significant development in the regulatory environment. Particularly at the federal level, the Policy and Standard 150 may mark the  beginning of changes towards enabling the development of commercially-available autonomous vehicles. All parties seeking to participate in the autonomous vehicle industry must  understand the new rules and policies put in place and their impact on the market.

2. Volpe review

The Review identifies a significant number of federal motor safety standards that, as they currently exist, could stand as a barrier to the development of highly autonomous vehicles. The Review identifies all those rules that refer explicitly to a driver, for example.

The Review is particularly helpful for manufacturers in light of the NHTSA’s recent push for the use of interpretations of and exemptions from the Federal Motor Vehicle Safety Standards (“FMVSS”). By providing manufacturers a list of the FMVSS that may slow the development of autonomous vehicles, the DOT has handed manufacturers a laundry list of rules from which to ask for further interpretations of, and exemptions from, while the industry waits for the FMVSS to be changed.

The Review concludes that there are few regulatory barriers for autonomous vehicles to comply with current FMVSS as long as the vehicle does not significantly diverge from a conventional vehicle design. Vehicles that push the boundaries of conventional design, however, “would be constrained by the current FMVSS or may conflict with the policy objectives of the FMVSS,” as many standards are based on assumptions of a human driver, for example.

As many manufacturers are looking to create the next generation of autonomous vehicles – vehicles that by definition push the boundaries of conventional design – it would behoove manufacturers to be aware of this Review and the FMVSS it lists.

3. The NHTSA’s 2016 Federal automated vehicles policy

“New vehicle technologies developed in the 20th century – from seat belts to air bags to child seats – were once controversial. But after having saved hundreds of thousands of American lives, they are now considered indispensable.”

The Policy released in September 2016 is intended to foster the development of the autonomous vehicle industry. The Policy contains four sections. First, the Policy outlines best practices for the safe pre-development design, development, and testing of highly autonomous vehicles, or “HAVs.” While couched as “guidance,” this first section describes new reporting mechanisms for manufacturers, and states that such reporting may be a requirement in the future. Second, the Policy contains recommendations for the implementation of policies at a state level. Third, the Policy describes its current regulatory tools that manufacturers can utilize to change existing regulations to enable the development and testing of autonomous technology. Lastly, the Policy lists potential new regulatory tools and authorities that, if implemented, could drastically change the automotive regulatory environment.

a. Vehicle Performance Guidance for Automated Vehicles (the “Guidance”)

The Policy’s Vehicle Performance Guidance for Automated Vehicles broadly applies to all individuals and companies manufacturing, designing, testing, and/or planning to sell automated vehicle systems in the United States. Its reach extends not only to comprehensive car manufacturers, but also to all equipment designers and suppliers as well.

The section’s Guidance is comprehensive. It includes all of the areas shown in Figure 1, below. Its key addition, however, is the introduction of “Safety Assessment Letters.” Starting soon, the NHTSA “will request that manufacturers and other entities voluntarily provide reports [safety assessment letters] regarding how the Guidance has been followed.” The NHTSA advises that “this reporting process may be refined and made mandatory through a future rulemaking.” Accordingly, manufacturers should consider implementing internal processes to appropriately complete the reports described within the Guidance.

Figure 1. “Guidance overview.” Reproduced from the Policy at 14. ODD refers to “Operational Design Domain.”

Although such assessments should be clear and concise, it does not appear that these assessments will be simple – there are 15 areas of guidance to be analyzed, all of which are reflected in Figure 1. “It is expected,” the Policy states, “that this would require entities to submit a safety assessment to NHTSA’s Office of the Chief Counsel for each HAV system[.]” Manufacturers, therefore, may soon have to fill out a safety assessment for each HAV System for each guidance area: data recording and sharing, privacy, vehicle cybersecurity, crashworthiness, ethical considerations, validation methods, and others. Not only will a safety assessment need to be submitted for each HAV System for each guidance area, but the NHTSA will expect manufacturers to update the assessment when any significant update(s) are made to the vehicle or HAV System.

Autonomous vehicles  

The Policy indicates that in the coming months, the NHTSA will implement several steps aimed at facilitating the safety assessment process. These steps include publishing an objective method that manufacturers and other entities may use to classify their automated vehicle systems and publishing a safety assessment template. Manufacturers should be aware, however, the NHTSA is expressly considering both mandating safety assessments and requiring any entity planning to test or operate HAVs on public roadways to register with the NHTSA and to document and report to the NHTSA items related to the Guidance.

b. Model state policy

In this second Section, the Policy announces the DOT’s intention to regulate autonomous vehicles: “DOT strongly encourages States to allow DOT alone to regulate the performance of HAV technology and vehicles.” The DOT points out that as much as autonomous vehicle technology is a radical change in technology, it need not herald any change in the regulatory division of responsibility between the NHTSA and the States. “The division of regulatory responsibility for motor vehicle operation between Federal and State authorities is clear[,]” the Policy reminds its readers, “[t]hese general areas of responsibility should remain largely unchanged for HAVs.”

Those areas of responsibility are as follows. Generally, NHTSA’s responsibilities include:

  • Setting FMVSS for new motor vehicles and motor vehicle equipment
  • Enforcing compliance with the FMVSS
  • Investigating and managing the recall and remedy of noncompliance and safety-related motor vehicle defects and recalls on a nationwide basis
  • Communicating with and educating the public about motor vehicle safety issues
  • Issuing guidance for vehicle and equipment manufacturers to follow

The States’ responsibilities include other aspects of motor vehicle regulations, as follows:

  • Licensing (human) drivers and registering motor vehicles in their jurisdictions
  • Enacting and enforcing traffic laws and regulations
  • Conducting safety inspections, where States choose to do so
  • Regulating motor vehicle insurance and liability

In the Policy, however, the NHTSA makes clear its view that “the Vehicle Safety Act expressly preempts States from issuing any standard that regulates performance if that standard is not identical to an existing [Federal Motor Vehicle Safety Standards (“FMVSS”)] regulating the same aspect of performance.” In a sentence that the NHTSA’s lawyers would have reviewed carefully, the Policy states that not only can state safety regulations not deviate from federal safety regulations, states cannot implement any regulations that would, in any way, stand in the way of the federal safety regulations being followed to the fullest extent: “The Supreme Court has also found that State laws may be preempted if they stand as an  obstacle to the accomplishment and execution of a NHTSA safety standard.”

The Policy then purports to provide guidance to the states on best practices when fulfilling their own responsibilities for motor vehicle regulations when it comes to autonomous vehicles, including, for example, that:

  • Each State should identify a lead agency responsible for consideration of any testing of highly autonomous vehicles.
  • Each State should develop an internal process that includes an application for manufacturers to test highly autonomous vehicles.
  • Each manufacturer or other entity should submit an application to the designated lead agency in each jurisdiction in which they plan to test their highly autonomous vehicles.
  • The lead agency should issue a letter of authorization to the manufacturer or other entity to allow testing in the State.

c. NHTSA’s current regulatory tools

In the third section, the NHTSA reviews the current regulatory tools at the disposal of interested parties, and encourages the use of those tools to further autonomous vehicle technology. Specifically, the Policy details three key regulatory devices:

  • Interpretations and exemptions for existing standards
  • Rulemaking to amend existing standards or create new standards
  • Enforcement authority to address defects that pose an unreasonable risk to safety

We discussed interpretations, exemptions, and rulemaking proposals in our first edition of this white paper. Since that edition, the basic framework has remained in place, with minor tweaks aimed at streamlining the process. In particular, the NHTSA has stated its goal that it will respond to:

  • Simple HAV-related interpretation requests within 60 days
  • Complex HAV-related interpretation requests within 90 days
  • Simple HAV-related exemption requests within six months
  • Complex HAV-related exemption requests within 12 months

This third section lays out the methods available to manufacturers and parties eager to proceed with the development and testing of autonomous vehicle technology. Interested parties should thoughtfully consider their regulatory approach, and seek guidance regarding the tools at their disposal.

d. New tools and authorities

The fourth and final section of the Policy is aspirational. The NHTSA acknowledges that “[t]he speed with which HAVs are evolving warrants a review of NHTSA’s regulatory tools and authorities.” As a result, it lays out a series of potential new tools and authorities that may be utilized to speed regulatory change and regulate autonomous vehicles, specifically:

  • Safety assurances
  • Pre-Market Approval Authority
  • Cease-and-Desist Authority
  • Expanded Exemption Authority for HAVs
  • Post-Sale Authority to regulate software changes
  • Variable testing procedures
  • Functional and System Safety Reporting
  • Regular reviews
  • Additional recordkeeping/reporting
  • Enhanced data collection tools, and others

The second of these authorities, in particular, is worth analyzing. The imposition of pre-market approval authority would represent a drastic deviation from the current federal vehicle regulatory scheme. Currently, manufacturers selfcertify their vehicles as being in compliance with the FMVSS. Under a new, pre-approval framework, “rather than having HAV manufacturers certify that their vehicles meet applicable FMVSS, NHTSA would test vehicle prototypes to determine if the vehicle meets all such standards.” Such a regulatory tool would “prohibit the manufacture, introduction into commerce, offer for sale, and sale of HAVs unless, prior to such actions, NHTSA has assessed the safety of the vehicle’s performance and approved the vehicle.” For vehicle manufacturers placing many models of new vehicles every year, such approval process could be quite burdensome thus potentially slowing the process by which autonomous vehicles make it to market.

4. Standard 150: Mandating V2V communications

“We are carrying the ball as far as we can to realize the potential of transportation technology to save lives. This long promised V2V rule is the next step in that progression. Once deployed, V2V will provide 360-degree situational awareness on the road and will help us enhance vehicle safety.”

On December 13, 2016, the NHTSA released a FMVSS Standard 150 for public comment – a new safety standard that, if adopted, would mandate the inclusion of V2V Communications on all new light-duty vehicles. Light-duty vehicles in the context of this rulemaking, refers to passenger cars, multipurpose passenger vehicles, trucks, and buses with a gross vehicle weight rating of 10,000 pounds (4,536 kilograms) or less.

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