US Department of Transportation proposes significant regulatory changes to facilitate deployment of self-driving vehicles

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Transportation Alert

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In a potentially historic action designed to facilitate the safe deployment of self-driving vehicles, the US Transportation Department’s National Highway Traffic Safety Administration has proposed numerous changes to standards that regulate motor vehicle safety in the United States. The proposed changes to Federal Motor Vehicle Safety Standards (FMVSS) are designed to eliminate key regulatory barriers to deployment of autonomous (self-driving) vehicles while maintaining the same level of vehicle occupant protection provided by existing standards. Entitled “Occupant Protection for Automated Driving Systems,” the NHTSA proposal would revise certain standards that were designed to apply to conventional vehicles but pose unforeseen legal obstacles to autonomous vehicles (AVs) that do not have conventional manual controls (such as steering wheels) and seating positions.

Autonomous vehicles have great potential to reduce auto crashes, save many lives, and generate other major social benefits. Requirements that such vehicles “comply” with standards and specifications that do not logically apply (such as steering-wheel related requirements for vehicles that do not have steering wheels) currently stand as roadblocks to the introduction of such vehicles on American roads. The proposed rule changes would substitute alternative safety requirements for logically inapplicable requirements. Assuming that they adequately protect occupant safety, such better-fitting standards could help to facilitate the safe commercial deployment of autonomous vehicles in the United States. Comments on this proposal are due within 60 days of its upcoming publication in the Federal Register.

NHTSA Acting Administrator James Owens summarized the agency’s goal in issuing the new proposed rule: “With more than 90 percent of serious crashes caused by driver error, it’s vital that we remove unnecessary barriers to technology that could help save lives. We do not want regulations enacted long before the development of automated technologies to present an unintended and unnecessary barrier against innovation and improved highway safety.”

Unlike general federal AV policies that have enunciated broad policy principles and guidelines and identified government roles and resources, NHTSA’s new rulemaking proposes specific substantive changes to specific federal safety regulations. The changes would directly affect the requirements of numerous standards as applied to certain autonomous vehicles, including, for example, standards governing airbags and other occupant protections, steering control systems, and occupant protection provisions for self-driving trucks. This initial round of proposed regulatory revisions is largely confined to occupant protection or “crashworthiness” standards. NHTSA anticipates that in the future it will issue additional proposals to update and clarify other standards applicable to AVs, including crash avoidance standards, “telltale” standards, and other vehicle standards.

The revisions NHTSA proposes are significant and warrant review by anyone interested in the future of ground transportation and related developments generally, or more specifically in autonomous vehicles and vehicle safety regulation. Those potentially affected by the proposal may wish to consider submitting comments to NHTSA regarding the proposal. As with any regulatory proposal, there may be different or better solutions to the identified regulatory challenges than those proposed in the rulemaking. The proposed revisions are not necessarily “one-size-fits-all,” and some may not be workable for certain AV designs, applications, equipment, or functions. And, there may be other relevant regulatory standards or issues that parties believe NHTSA should address in this rulemaking. The period for comment on the proposed rules will run for 60 days following the publication of the proposal in the Federal Register.

The following summary highlights some of the significant regulatory changes NHTSA has proposed.

I. Scope and Limits of the Proposed Regulatory Changes

The proposal explains that its general purposes are to remove unnecessary barriers to autonomous vehicles contained in the crashworthiness FMVSS while maintaining the same level of crashworthiness protection; to clarify the application of crashworthiness FMVSS to AVs without conventional manual controls; to facilitate certification of AVs to occupant protection standards and provide greater regulatory certainty to AV manufacturers; and to reduce the number of standards from which those manufacturers may need to seek a temporary exemption. NHTSA further states that its proposed changes are intended to maintain current regulatory requirements for conventional (non-autonomous) vehicles and to maintain technological neutrality in its standards.

The proposal is an important first step in revising the FMVSS to address autonomous vehicles but it is not comprehensive. The proposed revisions apply only to certain crashworthiness standards (FMVSS 200 series standards, primarily designed to protect vehicle occupants in the event of a crash), thus excluding crash avoidance and other standards. The proposal also is limited to vehicles with a conventional forward-facing seating configuration. While NHTSA proposes to supplement the definition of the term “driver” in certain instances, it expressly declines to propose a new definition to address the lack of a human driver in AVs. Because so many FMVSS are framed in reference to the “driver,” and the elimination of the human driver is arguably the defining function of a fully autonomous vehicle, the proposal highlights a significant open issue.

Finally, the proposed rule changes are intended to apply primarily to vehicles with SAE Autonomy Level 4 or 5 (essentially vehicles that can fully drive themselves in a designated domain, without human driver intervention). Thus, vehicles with lower levels of automation, including various Advanced Driver Assistance Systems, are not addressed by the proposed changes. The rule proposes an additional significant requirement for vehicles that are capable of fully autonomous operation, but also have operable manual controls.


II. Non-Technical Summary of Some Significant Proposed Changes


The first changes NHTSA proposes are revisions to definitions and terms used in the FMVSS. Because of the centrality of the term “driver” to relevant FMVSS requirements, the proposal focuses on how to apply that term. Because redefining the term for all FMVSS would be a complex and difficult task, the proposal instead suggests several supplemental definitions and modifications to be used in specific AV-related provisions. NHTSA also proposes to add definitions of “manually operated driving controls” (referring to steering wheel, brake and accelerator pedals); “steering control system”; and new seating positions (the last to account for elimination of driver seating position). Most of these proposed changes are in service of revised occupant protection requirements for vehicles having no steering wheel or human driver.

NHTSA proposes the greatest number of modifications for FMVSS 208, the “Occupant Crash Protection” standards. These proposals address two main concerns: (i) the application of crash protection requirements (including a number of different airbag-related standards and tests) to vehicles that have no steering wheel but may have an occupant seated in the left front seat; and (ii) the application of those occupant protection standards to  trucks that are  designed not to have human occupants.

For AVs that will carry occupants but lack manual controls (most significantly here, a steering wheel), NHTSA proposes to apply to all “front outboard” seats (including the left front seat) the same occupant protection requirements that presently apply to the right front seat. This would essentially require occupant protections for the left front seat to replicate those currently required for the right front seat, including airbag requirements. NHTSA also requests comments on whether “advanced air bag” requirements (designed to reduce or eliminate the impact of airbag deployment on child passengers) and unique air bag suppression telltales should be applied to the left front seat. Other proposed FMVSS 208 changes include changes to seatbelt requirements for autonomous buses, and changes to light vehicle test dummy placement and regulatory terms and descriptions to reflect the application of the right front seat standards to the left front seat.

With respect to autonomous trucks that do not have seating for human occupants, the proposal would amend FMVSS 208 to provide that its occupant protection requirements apply only to trucks that provide a seating position for human occupants. “Occupant-less” trucks would not be required to comply with FMVSS 208. Because the requirements of FMVSS 208 are extensive, this would represent a significant regulatory reduction for such autonomous trucks, and potentially for other vehicles that are not designed to carry passengers. Applying similar reasoning, the proposal also would exempt occupant-less trucks from other existing occupant protection standards, including interior and side impact standards.

The proposed rule would further modify ten other FMVSS standards and accompanying test procedures, largely to account for the absence of a steering wheel, changes resulting from elimination of the conventional driver’s seat position, and occupant-less trucks. Other standards addressed in the proposed rules include FMVSS numbers 201 (occupant protection in interior impacts); 203 (impact protection for drivers); 204 (steering wheel rearward displacement; 205 (glazing); 206 (door locks and door retention components); 207 (seating systems); 214 (side impact protection); 216a (roof crush resistance); 225 (child restraint anchorage system); and 226 (ejection mitigation). Like the FMVSS 208 changes, the changes proposed for these standards may affect different AV designs and configurations differently. Potentially affected parties should review the specifics of proposed changes to determine possible effects on their interests.

Conclusion

NHTSA has proposed significant changes to its safety standards in an effort to reduce regulatory impediments to certification and deployment of autonomous vehicles while maintaining occupant safety. On initial review, the proposed changes appear likely to provide a clearer regulatory path to the deployment of AVs that do not have manual controls. This would be an important step, particularly if NHTSA can act with dispatch to revise and refine its proposal and promulgate reasonable final rules.

Significant regulatory challenges remain to be addressed in order to facilitate the safe, widespread deployment of autonomous vehicles and supervision of their safety once deployed. But this proposal seems a commonsense start that suggests what may be reasonable alternatives to inapplicable standards and test procedures. That does not mean the proposals are the only or best solutions to the targeted regulatory challenges posed by AVs, or that they cannot be improved. Interested parties can participate in the process by submitting comments and suggestions to improve the proposal, potentially including different or additional modifications.

The period for public comment will commence when NHTSA’s Notice of Proposed Rulemaking is published in the Federal Register, and will close 60 days thereafter. If you would like more information or assistance in evaluating the proposed rule changes or preparing comments, please contact former NHTSA Chief Counsel Paul Hemmersbaugh at (202) 799-4590 or paul.hemmersbaugh@dlapiper.com, or your usual DLA Piper contact.