05 November 2018

U.S. Department of Transportation Issues Third Round of Guidance on Automated Vehicles

Rapid advances in automation have the potential to disrupt a number of sectors, perhaps none more so than the automobile industry. The U.S. Department of Transportation (DOT) has accordingly announced its intention to take “active steps to prepare for the future by engaging with new technologies to ensure safety without hampering innovation.” Most recently, on October 4, 2018, DOT issued Preparing for the Future of Transportation: Automated Vehicles 3.0 (AV 3.0), its third round of guidance on the topic. Like its 2017 predecessor, “Automated Driving Systems 2.0: A Vision for Safety,” AV 3.0 emphasizes the development of voluntary, consensus-based technical standards and approaches while noting that there are cross-cutting policy issues where federal leadership may be necessary. AV 3.0 also builds on its predecessors by emphasizing that it reflects the view of all of DOT’s operating administrations; by providing much more detailed guidance on the development and testing of automated vehicle technologies; and by announcing some specific regulatory steps DOT plans to take in the near future.

Automation Principles

The guidance begins by noting that six principles, announced earlier this year, will inform DOT’s approach to automated vehicles. In particular, AV 3.0 emphasizes that DOT will

  • prioritize safety by addressing potential risks to advance the “life-saving potential of automation, which will strengthen public confidence in these emerging technologies”
  • remain technology neutral by adopting flexible policies that “promote competition and innovation as a means to achieve safety, mobility, and economic goals” while allowing the public “to choose the most effective transportation and mobility solutions”
  • modernize regulations by removing barriers that “unnecessarily impede the development of automated vehicles or that do not address crucial safety needs” and by supporting the “development of voluntary, consensus-based technical standards and approaches that are flexible and adaptable over time”
  • encourage a consistent regulatory and operational environment by building “consensus among State and local transportation agencies and industry stakeholders on technical standards and advance policies to support the integration of automated vehicles throughout the transportation system”
  • prepare proactively for automation by providing guidance, best practices and other assistance to help partners plan for a dynamic future while not assuming universal implementation of any one approach
  • protect and enhance the freedoms enjoyed by Americans, to include “the freedom to drive their own vehicles”

Roles and Responsibilities

 To implement the vision captured by these principles, AV 3.0 notes that the “traditional roles of the Federal Government; State and local governments; and private industry are well suited for addressing automation.” DOT then lays out specific guidance on how each of these actors can help encourage the development of automatic vehicles while ensuring the safety of the driving public.

Federal government. AV 3.0 notes that DOT’s role is to ensure “the safety and mobility of the traveling public while fostering economic growth.” To fulfill this role, the guidance lays out three broad categories for federal action:

First, AV 3.0 makes clear that DOT will integrate safety into surface transport administration. Consistent with this goal, AV 3.0 announces a number of number of planned regulatory actions, including upcoming rulemakings and opportunities for public comment, including that, among other things,

  • The National Highway Traffic Safety Administration (NHTSA) “plans to seek comment on proposed changes to particular safety standards to accommodate automated vehicle technologies and the possibilities of setting exceptions to certain standards — that are relevant only when human drivers are present — for [automated driving system (ADS)] equipped vehicles.”
  • NHTSA also “intends to seek public comment on a proposal to streamline and modernize procedures the Agency will follow when processing and deciding” petitions for exemptions from Federal Motor Vehicle Safety Standards.
  • The Federal Motor Carriers Safety Administration (FMCSA will, “subject to the development and deployment of safe ADS technologies,” adopt a policy whereby its regulations “no longer assume the [commercial motor vehicle] driver is always a human or that a human is necessarily present onboard a commercial vehicle during its operation.”
  • FMCSA also “intends to initiate an Advance Notice of Proposed Rulemaking to better understand areas of responsibility between the State and Federal governments in the context of ADS-equipped commercial motor vehicles and commercial carriers.”
  • The Federal Highway Administration will pursue an updated to the 2009 Manual on Uniform Traffic Control Devices that will take into consideration the rapid development of automated technologies and other needs.
  • Finally, DOT will undertake a “study of the workforce impacts of automated vehicles” in collaboration with the Departments of Labor, Commerce, and Health and Human Services.

Second, AV 3.0 makes clear that DOT has “a limited and specific role in conducting research related to the integration of automation into the Nation’s surface transportation system.” This role focuses on three key areas: removing barriers to innovation; evaluating the effects of technology, particularly with regard to safety; and addressing market failures and other compelling public needs, including “research that responds to safety, congestion, cybersecurity, or asymmetric information (e.g., public disclosures), or where a lack of private sector investment may create distributional issues that disadvantage particular groups (e.g., access for individuals with disabilities).”

Third, AV 3.0 makes clear that DOT has a role to play in key cross-cutting policy issues. Issues include these:

  • Cooperative automation and connectivity, with a particular emphasis on the role DOT is playing to work with the Federal Communications Commission to “preserve the ability for transportation safety applications to function in the 5.9 GHz spectrum while exploring methods for sharing the spectrum with other users that maintains priority use for vehicle safety communications.”
  • Pilot testing, with a shift toward allowing testing at any location so long as it meets certain neutral, objective criteria rather than recognizing the designation of 10 specific “automated vehicle proving grounds” (as had been done on January 19, 2017).
  • Cybersecurity and privacy, with the guidance emphasizing the reliance of automated vehicles on connectivity to communicate and exchange data and the attendant risks to both security and consumer privacy that result. The guidance says little about how DOT plans to address these issues other than through working closely with its federal partners — the Departments of Justice, Commerce, and Homeland Security and the Federal Trade and Communications commissions on cybersecurity, and the FTC on privacy. But given the gravity of the concern noted in the guidance, it seems certain that these issues will be a focus.

State, local, and tribal governments. AV 3.0 notes that state and local governments license drivers, register vehicles, enact and enforce traffic laws, conduct safety inspections, regulate insurance and liability, and build and maintain infrastructure. Many of these roles, the guidance suggests, “may not change significantly with the deployment of automated vehicles.” Nonetheless, the guidance notes there are “many ways” these governments can prepare for automation, including by reviewing their laws and regulations to ensure that they do not create barriers to innovation, adapting policies and procedures, assessing their infrastructure and providing guidance to the transportation workforce and the public. In particular, while we do not lay out here all of the detailed guidance DOT provides to its state and local counterparts, the guidance suggests, among many other things, that states and/or local governments

  • seek legislative technical assistance from DOT, as state “requirements could create unintended barriers for the testing, deployment, and operations of advanced vehicle safety technologies”
  • adopt a consistent terminology defined through voluntary technical standards
  • collaborate with various stakeholders — for example, automated vehicle developers, traffic engineers and law enforcement stakeholders — to review and revise the Uniform Vehicle Code, a model set of traffic laws for states to consult when considering legislation
  • ensure compatibility between interstate and intrastate commercial vehicle regulations, in part to maintain eligibility under the Motor Carrier Safety Assistance Program
  • consider test driver training and licensing procedures for test vehicles
  • recognize emerging workforce needs and requirements and conduct succession planning in the new, high-technology environment

The private sector. AV 3.0 notes that over the last decade, “private sector innovators have taken the lead in developing and commercializing automation technologies,” such that their leadership is “crucial to advancing the development, testing, and commercialization of automated vehicles.” As such, the guidance is clear that the private sector has a crucial role to play, working with the public sector, “to improve safety and meet the public interest without hampering innovation.”

Of particular note, AV 3.0 identifies two primary ways in which the private sector can promote consumer acceptance of automation technology: first, through transparency about vehicle safety performance; second, through public education campaigns. AV 3.0 explains that the exchange of information between the public and private sector is “critical for helping policymakers understand the capabilities and limitations of these new technologies, while ensuring that the private sector understands the priorities of policymakers and the issues they face.”

Beyond these two focus areas, the guidance further outlines “several critical areas where the private sector’s role will be significant,” including

  • Demonstrating safety through voluntary self-assessments.
  • Incorporating new safety approaches for automated commercial vehicles.
  • Developing safe and accessible transit buses.
  • Contributing to the development of voluntary, consensus-based and performance-oriented technical standards.
  • Working with all potential user groups to incorporate universal design principles while anticipating human factors and driver engagement issues.
  • Engaging with first responders and other public safety officials.
  • Adopting cybersecurity best practices, including through the consideration and incorporation of “voluntary guidance, best practices, and design principles published by [the National Institute of Science and Technology], NHTSA, SAE International, the Alliance of Automobile Manufacturers, the Association of Global Automakers, the Auto ISAC, and other relevant organization, as appropriate.” Stakeholders are also encouraged to report to the Auto ISAC “all discovered incidents, exploits, threats, and vulnerabilities from internal testing, consumer reporting, or external security research as soon as possible” as well as provide voluntary reports to the Department of Homeland Security.

Looking Forward: DOT’s Next Steps

The effect of automation on the transportation sector — and its implications for how people get around, and even how we construct our cities — will continue to prompt substantial regulatory interest. The regulatory choices made during this potentially revolutionary technology’s infancy are likely to have an outsize impact on the technology’s development.

It is therefore crucial that affected players pay close attention to — and engage in — DOT’s proposed, initial regulatory efforts. Contributing to the development of consensus-based technical standards and cybersecurity best practices are just two areas where industry-led efforts may have a particular impact on the future of regulation in this area. To that end, DOT is already taking comments on AV 3.0, which are due by December 3. Multiple DOT units are planning future rulemakings. As noted, AV 3.0 announced plans for NHTSA rulemakings on proposed changes to safety standards to accommodate automated vehicle technologies and on streamlining procedures for exemption petitions. AV 3.0 also announced an FMCSA Advance Notice of Proposed Rulemaking on the division of responsibility between state and federal governments relating to the regulation of automated commercial vehicles and commercial motor carriers. Stakeholders should monitor these regulatory actions and participate where appropriate, for the regulatory decisions made over the next few years will shape the transportation landscape for decades to come.

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