On Thursday November 19, the National Highway Traffic Safety Administration (NHTSA) issued an advanced notice of proposed rulemaking requesting comments on a new generation of safety standards for autonomous vehicles. This new advanced notice comes after several research reports, guidance documents, advance notices of proposed rulemakings, and notices of proposed rulemakings relating to the development of vehicles equipped with Automated Driving Systems (ADS). According to the NHTSA, “The framework would objectively define, assess, and manage the safety of ADS performance while ensuring the needed flexibility to enable further innovation.”
While the Agency notes that it may be premature for NHTSA to develop and promulgate a specialized set of FMVSS or other performance standards for ADS competency it is clear the Agency would like to prepare for such an eventuality. As such, the notice, “marks a significant departure” from the Agency’s previous regulatory position 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”. The document floats the idea of “an “if-equipped” performance requirement regime where NHTSA would specify performance requirements specifically for those vehicles equipped with ADS. Any new framework is likely to borrow significantly from reports in recent years by DOT (i.e., ADS 2.0, Preparing for the Future of Transportation: Automated Vehicles 3.0 (AV 3.0), and Ensuring American Leadership in Automated Vehicle Technologies: Automated Vehicles 4.0 (AV 4.0)).
While the balance of this initial document between developing a consistent regulatory regime and maintaining industry flexibility is encouraging, the deadline for public comments is January 19, 2021 meaning any further movement on developing a federal regulatory structure will be left to the Biden Administration. The direction of the Department of Transportation may change significantly depending on the perspectives of newly-appointed leadership.