NHTSA Announces a Host of Actions on Autonomous Vehicles

On July 30, on the last day of the SAE International Automated Transportation Symposium, the National Highway Traffic Safety Administration (NHTSA) released several rulemakings and announcements focused on automated driving systems (ADS).  These announcements further NHTSA’s efforts to, in the agency’s words, “accelerate American automated vehicle (AV) innovation.”  In remarks at the conference, NHTSA’s Administrator Jonathan Morrison indicated the agency’s approach “is one of balance, combining policy choices that enable innovation with an unapologetic exercise of our oversight and enforcement authorities.”

First Commercial Exemption for a Robotaxi Service

NHTSA granted Zoox the first-ever exemption from certain Federal Motor Vehicle Safety Standards for a commercial robotaxi under 49 C.F.R. § 555.  In doing so, the agency concluded that Zoox’s purpose-built vehicle “would provide an equivalent level of safety” as a compliant vehicle, thereby satisfying the standard for a Section 555 exemption.  Zoox had previously received a narrower exemption under 49 U.S.C. § 30114, which permitted operation of the vehicles for noncommercial demonstration purposes.  The new exemption authorizes deployment of up to 2,500 vehicles annually—the maximum number permitted under current law—and, for the first time, allows Zoox to provide commercial ride-hailing services using those vehicles.  The decision marks only the second time that NHTSA has granted a Section 555 exemption for an autonomous vehicle, and the first such exemption for a passenger-carrying vehicle.

Interim Final Rule Adjusting Exemption Regulation

NHTSA published an “interim final rule” adjusting the aforementioned exemption regulation, 49 C.F.R. § 555.  The amended rule establishes that a Section 555 exemption can be granted to a vehicle manufactured before the effective date of the exemption.  As previously written, Section 555 had on its face only allowed exemptions to be granted to vehicles manufactured after issuance of an exemption under the regulation.  This change will allow vehicles to go into production before an exemption is granted.  It will also allow the same vehicles that had previously received other types of exemptions, such as demonstration exemptions under 49 U.S.C. § 30114, to be covered by a newly granted Section 555 exemption.

Updating the Exemption Application Process

NHTSA stated that it is aiming to speed up the process for granting exemptions, though in practice, Section 555 exemptions still take some time.

A recently updated section of the agency’s website provides extensive information on Section 555 exemptions, including specific guidance on what applicants should be prepared to submit when seeking an exemption.  The expected submissions include information on the vehicle’s operational design domain; “a description of how the vehicle and ADS will be monitored and controlled”; “a description of the extent (e.g., vehicle miles traveled, number of vehicles, locations, use cases, trips, driverless and supervised operations) to which this ADS or a substantially similar ADS (e.g., prior/newer generation) has been previously tested”; “documentation that outlines policies and technical approaches for ensuring the safety of the vehicle and ADS over the complete product lifecycle,” including “the applicant’s safety case and overall safety management system” and referencing applicable international engineering standards; “the maximum control authority for the system when engaged, including commanded speed, acceleration, braking, steering angle, permissible gear selection states while engaged, and limits on specialized maneuvers”; extensive information on the vehicle’s perception capabilities, software, and hardware; “the ADS’ current and planned competency in emergency scenarios”; “ADS and vehicle interactions with first responders”; and “a description of any system fallback strategies or designs (e.g., minimal risk conditions).”

New Non-Binding AV Guidance

NHTSA has not published new guidance on ADS safety since 2017.  NHTSA announced that it is “updating its technical guidance for AVs” and will establish “a new Federal Docket for public feedback on NHTSA’s updated safe AV development and deployment guidance.”  This guidance would not set mandatory safety standards, but would potentially be an important tool for AV companies, would indicate the agency’s views on best practices, and could be an effective indicator of what the agency considers to be unreasonable risks to safety, which could in turn inform the agency’s investigation and enforcement decisions.  According to the agency, the new guidance will focus on areas that include “emergency responder interactions, safety management systems, remote assistance, and post-crash behavior.”

New Partnership With SAE

NHTSA announced a new $5 million partnership with the SAE Industry Technologies Consortia (SAE ITC) “to gather data and accelerate creation of the first-ever AV performance standards.”  The goal, according to the agency, will be to “inform a single national standard for AV safety to eliminate the patchwork regulatory landscape that has stifled innovation for years.”

Takeaways

• The description of information that NHTSA expects to receive from applicants for Section 555 exemptions for ADS-equipped vehicles provides useful transparency about the process. At the same time, the very extensive submissions required of applicants only underscores that the process is extensive and resource-intensive.
• Although many of NHTSA’s recent high-profile actions have concerned exemptions from the Federal Motor Vehicle Safety Standards (FMVSS), it bears emphasizing that only a subset of ADS-equipped vehicles require exemptions. Many such vehicles, including most robotaxis and ADS-equipped heavy trucks currently on the road in the United States, are fully FMVSS compliant and do not need regulatory exemptions to operate lawfully.
• Over the longer term, exemptions are likely to become less critical to the deployment of autonomous vehicles, including those with innovative designs. In recent years—and particularly over the past year—NHTSA has devoted significant rulemaking resources to modernizing the FMVSS to better accommodate vehicles that do not rely on human drivers.  Zoox, for example, received exemptions from portions of eight different FMVSS.  According to NHTSA’s published regulatory agenda, the agency is currently revising each of those standards, with seven of the eight being addressed through rulemakings specifically focused on vehicles equipped with automated driving systems.
• In remarks at the Automated Transportation Symposium and other public statements, NHTSA has also indicated it is exploring setting substantive safety standards for AV operation. This is a different, and arguably even more difficult, undertaking than updating existing standards to allow for driverless vehicles.  What those standards might look like, and when they might be proposed, is still an open question.  NHTSA’s announced partnership with SAE ITC may accelerate those efforts.
• While encouraging AV development through rulemaking and exemptions, NHTSA’s leadership continues to wield its enforcement authority—and increasingly its bully pulpit—to ensure safety. In a widely publicized open letter to ADS developers on July 8, Administrator Morrison noted what he described as “a recent, disturbing trend”: namely “a clear pattern of driverless AVs interfering with law enforcement and other first responders.”  The letter issued “a call to action for AV developers and operators to immediately focus their resources on fixing this issue,” and warned that “the inability to detect and appropriately respond to such situations represents a functional insufficiency.”

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