Products Liability Law Daily NHTSA proposes regulatory framework for Automated Driving System safety
Friday, November 20, 2020

NHTSA proposes regulatory framework for Automated Driving System safety

By Susan Lasser, J.D.

The agency’s ANPRM seeks public comment on elements of its proposed framework and how to most appropriately form a framework that provides for motor vehicle safety while also providing flexibility to develop more effective safety innovations.

The National Highway Traffic Safety Administration (NHTSA) has submitted an advance notice of proposed rulemaking (ANPRM) to the Federal Register on a proposed framework for Automated Driving System (ADS) safety that would objectively define, assess, and manage the safety of ADS performance while ensuring the flexibility necessary to enable further innovation. According to the ANPRM, NHTSA intends to draw upon existing federal and non-federal "foundational efforts and tools" in order to structure the framework while ADS technology continues to develop. The agency seeks specific feedback on key components that can meet the need for motor vehicle safety while enabling innovative designs, in a manner consistent with agency authorities. NHTSA also requests public comment on the potential development of a framework of principles to govern the safety of ADS in the future (NHTSA Advance notice of proposed rulemaking, submitted for publication in the Federal Register on November 19, 2020).

According to an agency press release, although there is no ADS-equipped vehicle currently available for sale to the public and wide scale deployment of ADS-equipped vehicles is estimated to be years away, NHTSA and others have identified elements of a framework for objectively defining and assessing ADS competence. "ADS technologies are different from more conventional automotive equipment, and it is necessary and appropriate to consider how ADS standards can and should be articulated," NHTSA Deputy Administrator James Owens said. U.S. Secretary of Transportation Elaine L. Chao added that the ANPRM "will help address legitimate public concerns about safety, security and privacy without hampering innovation in the development of automated driving systems."

An ADS is the hardware and software which are collectively capable of performing the entire dynamic driving task on a sustained basis, regardless of whether it is limited to a specific operational design domain (ODD). The ADS maintains the control and driving functions within situations that the system is designed to operate. In general, the ADS-related publications issued by NHTSA thus far have addressed the challenges involved in determining which requirements of the existing Federal Motor Vehicle Safety Standards (FMVSS) are relevant to the safety needs of ADS-equipped vehicles without traditional manual controls, and then adapting or developing the requirements and the associated test procedures so that the requirements can effectively be applied to the novel vehicle designs of ADS-equipped vehicles without adversely affecting safety, according to the ANPRM. As such, those notices have focused on the design of the vehicles that may be equipped with an ADS rather than on the performance of the ADS itself.

In addition, NHTSA has published recommendations to ADS developers, including automakers and technology companies; and has proposed in a notice-and-comment rulemaking to remove unintended and unnecessary regulatory barriers or other impediments to the development or deployment of vehicles with ADS. The agency notes that this approach has been paving the way for the safe development and eventual deployment of ADS technology. Furthermore, as small-scale ADS deployments begin to appear in coming years, NHTSA says it will address unreasonable safety risks that may arise using its defect investigation and remediation authority.

While wide-scale deployment still may be several years away, many companies are actively developing and testing ADS technology throughout the United States and the agency states that it may be premature for it to develop and promulgate a specialized set of FMVSS or other performance standards for ADS competency. The agency believes that the existing FMVSS set minimum performance requirements for vehicles and equipment and "they follow an approach that is performance-based, objective, practicable, and established with precise and repeatable test procedures."

Safety framework. While establishing an FMVSS for ADS may be premature, NHTSA maintains that it is appropriate to begin to consider how the agency may use its regulatory authority to encourage a focus on safety as ADS technology continues to develop. As such, the current ANPRM is a departure from the agency’s previous regulatory notices relating to ADS because NHTSA is looking beyond the existing FMVSS and their application to novel vehicle designs and is considering the creation of a governmental safety framework specifically tailored to ADS. As opposed to prescribing by rule specific design characteristics or other technical requirements for ADS, NHTSA says that it envisions a framework approach to safety for ADS developers that would use performance-oriented approaches and metrics to accommodate the design flexibility necessary for manufacturers to pursue safety innovations and novel designs in the new technologies. NHTSA states that the framework could involve a range of actions by the agency, including guidance documents addressing best industry practices, providing information to consumers, and describing different approaches to research and summarizing the results of research, as well as more formal regulation. Moreover, the different approaches likely would build upon prior ADS guidance documents: Automated Driving Systems 2.0: A Vision for Safety [see Products Liability Law Daily’s September 13, 2017 analysis]; Preparing for the Future of Transportation: Automated Vehicles 3.0 [see Products Liability Law Daily’s October 5, 2018 analysis]; and Ensuring American Leadership in Automated Vehicle Technologies: Automated Vehicles 4.0 (AV 4.0) [see Products Liability Law Daily’s January 9, 2020, analysis]. Consequently, the agency is requesting comments on the appropriate role for NHTSA in facilitating ADS risk management through guidance and/or regulation. The ANPRM focuses on ways NHTSA may approach the performance evaluation of ADS through a safety framework, containing a variety of approaches and mechanisms that together would allow NHTSA to identify and manage safety risks relating to ADS appropriately.

According to NHTSA, there are four primary functions of the ADS that should be the focus of the agency’s attention: (1) how the ADS receives information about its environment through sensors; (2) how the ADS detects and categorizes other road users (vehicles, motorcyclists, pedestrians, etc.), infrastructure (traffic signs, signals, etc.), and conditions (weather events, road construction, etc.); (3) how the ADS analyzes the situation, plans the route it will take on the way to its intended destination, and makes decisions on how to respond appropriately to the road users, infrastructure, and conditions detected and categorized; and (4) how the ADS executes the driving functions necessary to carry out that plan through interaction with other parts of the vehicle. These are the four primary functions that NHTSA is considering in its ANPRM. The agency seeks comment on the manner in which the framework can and should be administered as well, in order to support agency oversight of ADS-related aspects.

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