NHTSA Proposes Sweeping Voluntary Program for Vehicles With Automated Driving Systems

On December 19, 2024, the Chief Counsel of the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA or the Agency) signed a notice of proposed rulemaking (NPRM) in which the Agency proposed a sweeping voluntary program relating to the evaluation and oversight of motor vehicles equipped with automated driving systems (ADS). NHTSA defines ADS-equipped vehicles, which can also be called autonomous vehicles (AVs), as vehicles designed to fully perform the driving task without any expectation of an attentive human driver.

The proposed program — the ADS-Equipped Vehicle Safety, Transparency, and Evaluation Program (AV STEP) — is intended to usher in greater transparency and safety developments relating to the rapidly evolving world of ADS. NHTSA has authority pursuant to the National Traffic and Motor Vehicle Safety Act (Safety Act) to prescribe motor vehicle safety standards and conduct the necessary safety research and development for such standards. Under NHTSA regulations, motor vehicles equipped with ADS are legal on public roads provided that the motor vehicles comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS), although the current FMVSS do not prescribe performance standards specifically for ADS. NHTSA grants exemptions for certain motor vehicles that are equipped with ADS and do not comply with all FMVSS, but those exemptions typically are sought for and granted by NHTSA when a motor vehicle is specifically designed for ADS operations (e.g., NHTSA may grant an exemption from a FMVSS that relates to crash protection requirements for the driver’s seating position if the manufacturer has designed and developed a driverless motor vehicle that relies on ADS instead of a human driver). In the NPRM, NHTSA emphasizes that AV STEP would provide important information and data for both the further development of ADS technologies and the development of ADS-specific FMVSS. AV STEP would also provide approved program participants with streamlined methods to obtain FMVSS exemptions for participating vehicles.

AV STEP is characterized as a voluntary program, and participation would be open to motor vehicle manufacturers, ADS developers, fleet operators, and system integrators that exercise operational control over eligible ADS-equipped motor vehicles. Interested entities would apply to participate in AV STEP. As written in the NPRM, AV STEP has two motor vehicle eligibility requirements: (1) Motor vehicles are equipped with ADS being used or developed for operation “without the expectation of an attentive human driver,” and (2) the ADS equipped on these motor vehicles must perform the entirety of the “dynamic driving task,” which NHTSA defines as “all of the real-time operational and tactical functions required to operate a vehicle in on-road traffic,” with certain exclusions.

If adopted, AV STEP would have two participation categories or “steps”: (1) a category that applies to vehicles that rely on “fallback personnel,” and (2) a category that applies to vehicles that do not rely on “fallback personnel.” NHTSA defines “fallback personnel” in the NPRM as “an individual specially trained and skilled in supervising the performance of prototype ADS-operated vehicles in on-road traffic, who continuously supervises the performance of an ADS-operated vehicle in real time and intervenes whenever necessary to prevent a hazardous event by exercising any means of vehicle control.” In other words, vehicles that rely on “fallback personnel” mean those vehicles in which a human is expected to intervene to compensate for a deficiency in ADS. This means that, in practice, eligibility under NHTSA’s proposed AV STEP would be limited to motor vehicles operating at SAE International Levels 3, 4, or 5.¹ Participants could apply to either step depending on the specific ADS installed on the motor vehicle.

Participation in AV STEP would require that entities report a variety of vehicle operational information to NHTSA primarily focusing on the following: (1) general reporting on a quarterly basis, (2) event-triggered reporting of certain incidents and other events during operations, and (3) reporting on operational updates. Such reporting ranges from information about the exact location where the eligible motor vehicle is operated to incidents of traffic safety law violations. NHTSA’s proposal also includes public reporting requirements, to be completed by the Agency, about each AV STEP application and participation.

To encourage participation in AV STEP, the NPRM emphasizes that participation in voluntary programs has made significant contributions to advancing automotive safety (including participation in preexisting ADS-related voluntary programs, such as NHTSA’s Voluntary Safety Self-Assessment). NHTSA also notes that “[p]ublic trust is often difficult to establish for ADS operations” and that the Agency believes participation in AV STEP may assist participating entities with establishing public trust and other competitive advantages for their motor vehicles.

NHTSA’s proposed AV STEP builds on earlier Agency actions, such as the Voluntary Safety Self-Assessment, aimed at regulating AVs and vehicles equipped with advanced driver-assistance systems (ADAS). Simple compliance with NHTSA’s FMVSS — or the Agency’s issuance of a FMVSS exemption — does not preclude NHTSA from opening a defect investigation under the Safety Act. In June 2021, NHTSA issued a General Standing Order — later amended in April 2023 — requiring manufacturers of vehicles, manufacturers of motor vehicle equipment, and operators of ADS-equipped motor vehicles to report to NHTSA on a monthly basis any instances of crashes involving vehicles equipped with SAE International Level 2 ADAS or higher vehicle automation technology. Under the General Standing Order, crash reporting is required even when the vehicle automation technology is not engaged at the time of the crash. The NHTSA Office of Defect Investigations (ODI) has since used the data reported pursuant to the General Standing Order to open investigations into various ADS and ADAS-equipped vehicles, including the recent and highly publicized investigation into the General Motors Cruise unit’s “robotaxis,” which the company recalled in August 2024. However, these types of defect investigations, along with the entirety of ODI’s operations, have been criticized for moving too slowly, being too ad hoc, and failing to define clear safety standards.

In addition to the June 2021 General Standing Order, the Agency has also recently published final rules amending regulations to account for ADS-equipped vehicles as the industry continues to evolve. For example, in March 2022, NHTSA published a final rule removing such terminology as “driver’s seat” and “steering wheel” from certain FMVSS because, although ADS-equipped vehicles must still provide the same levels of occupant protection that traditional passenger vehicles provide, such terms are not meaningful for vehicles that are not equipped with driver’s seats or steering wheels and do not rely on human drivers.

NHTSA’s latest action, the NPRM, has not yet been published in the Federal Register, but the prepublication version is available on NHTSA’s website. Once it is published in the Federal Register, interested parties will have 60 days to comment.

It remains to be seen how the incoming administration will handle the NPRM. Unlike other federal agencies, where changes in administrations can lead to reflexive rescission of prior administration policies, NHTSA and vehicle safety have historically been more bipartisan. However, media have reported that Elon Musk and other influential individuals have criticized some of NHTSA’s actions regarding ADS- and ADAS-equipped vehicles as “excessive” and have advocated for different approaches to setting safety standards for ADS-equipped vehicles that would unleash innovation in vehicle automation.

¹The SAE International Levels of Driving Automation categorize different functionalities of vehicle autonomy into six different levels. SAE International Levels 0 – 2 refer to driving automation technology where a human is performing the driving task and driver support features are engaged, but those features require constant human supervision. SAE International Levels 3 – 5 refer to driving automation technology where a human is not performing the driving task when driving features are engaged (although, in the case of Level 3, human intervention may still be required).

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.