O’Melveny Worldwide

Department of Transportation Requests Comment on Automated Vehicle Proposed Rulemakings

June 7, 2019

On May 28, 2019, the Department of Transportation (DOT) published two Advance Notices of Proposed Rulemaking (Proposed Rulemakings) requesting public comment that will inform future regulatory activity on automated vehicle safety standards and rules related to automated commercial vehicles. The notices invited companies and individuals to submit comments on or before July 29, 2019.

Both Proposed Rulemakings seek comment on regulations that should change to allow for the operation of fully automated vehicles on public roads while preserving public safety. Specifically, the Federal Motor Carrier Safety Administration (FMCSA) seeks comments on rules and regulations related to fully automated commercial vehicles, and the National Highway Traffic Safety Administration (NHTSA) seeks comments on changes to Federal Motor Vehicle Safety Standards (FMVSS) to allow for driverless vehicles.

FMCSA’s Proposed Rulemakings. The FMCSA is a DOT sub-agency responsible for regulating interstate commercial vehicles. On May 28, 2019, the FMCSA published a Proposed Rulemaking called “Safe Integration of Automated Driving Systems-Equipped Commercial Motor Vehicles,” which can be found online here. In this notice, the FMCSA responds to public comments received in a previous Request for Comment and public meetings, and offers the agency’s preliminary views on FMCSA regulations that need to be changed. These views are provided for the purpose of soliciting public feedback, but they also provide some indication of how the agency currently views issues related to commercial automation, including for automated trucking.

  • No assumption of human driver. FMCSA states that it will “interpret its regulations to no longer assume that the [commercial motor vehicle] driver is always a human or that a human is present onboard a commercial vehicle during its operation.” 84 Fed. Reg. 24,449, 24,453 (May 28, 2019).
  • Commercial licenses for all operators. FMCSA “believes that any individual who is expected to control [an automated commercial vehicle] at any time the vehicle is in operation on a public road must be fully qualified to do so.” Id. at 24,453. Similarly, the FMCSA expects any operators, including remote operators, to follow the FMCSA’s hours-of-service, medical qualifications, distracted driving, and drug-and-alcohol resting rules. See id. at 24,453–55. 
  • No use of Hand-held Devices. With respect to distracted driving, the agency’s current view is that human operators of automated commercial vehicles must comply with the agency’s rules against using hand-held wireless devices while the vehicle is driving, even when that human operator is not actively controlling the vehicle. Id. at 24,454.
  • Continued reliance on voluntary assessments and standards development. The FMCSA expects that AV technology companies will generally follow DOT’s voluntary guidance and conduct thorough safety assessments. Id. at 24,456. Consistent with DOT’s 2.0 and 3.0 automated vehicle guidance, the FMCSA expects developers of automated commercial vehicles to “self-certify” the capabilities of the automated technology through a safety assessment that informs motor carriers and regulators about the operational limitations of the technology. See id.

    Generally, the FMCSA intends to rely as much as possible on voluntary standards developed by the private-sector, recognizing the rapid pace of advances in automated vehicle technology. Id. at 24,457. The agency intends to adopt private standards in future rulemakings. Id. For example, the FMCSA “encourages industry to adopt practices that improve the cybersecurity posture of their vehicles” such as the National Institute of Standards and Technology’s (NIST) Cybersecurity Framework.

  • Discouraging states from restrictive rule-making. The FMCSA expressly “discourages States from adopting more stringent rules concerning [automated vehicle technology], which could interfere with interstate commerce.” Id. at 24,458. 

NHTSA’s Proposed Rulemakings. NHTSA is a DOT sub-agency responsible for creating safety standards for vehicles sold in the United States. On May 28, 2019, NHTSA published a Proposed Rulemaking called “Removing Regulatory Barriers for Vehicles with Automated Driving Systems,” which can be found online here. NHTSA seeks public comment on the “near- and long-term challenges” of testing and verifying compliance with existing FMVSS for Automated Driving Systems-Dedicated Vehicles (ADS-DVs) that “lack traditional manual controls necessary for a human driver to maneuver the vehicle” but that are “otherwise traditional vehicles with typical seating configurations.” 84 Fed. Reg. 24,433, 24,433 (May 28, 2019). Some specific examples are discussed below.

  • Barriers in crash-avoidance FMVSS. In this Proposed Rulemaking, NHTSA focuses on fully automated vehicles that lack internal controls, specifically the “100-series” FMVSS that relate to crash avoidance. The agency will address other FMVSS (for instance, those related to crashworthiness) in future rulemakings. See id. at 24,433.
  • May 2019 proposed rulemaking focuses on testing procedures. NHTSA identifies two types of barriers in existing FMVSS: (1) some FMVSS expressly require a manual control (e.g., requiring a foot pedal as a mechanism to control a vehicle’s brakes), and (2) some FMVSS contain compliance “testing procedures that cannot be executed absent manual controls” (e.g., requiring a test engineer to control a vehicle using a steering wheel). See id. at 24,438–39. Much of the May 2019 Proposed Rulemaking focuses on the second type of barrier (testing), and NHTSA provides several “alternative compliance verification test methods” and seeks comments on the advantages and disadvantages of those methods. Id. NHTSA indicates that it “has made no judgment at this time regarding which compliance verification test method would be best for addressing the particular regulatory barriers, if any, and expects that it may be possible that the feasibility, including meeting the requirements of the Safety Act, of a particular compliance strategy would depend on the context in which it is used.” Id. 

If you have questions or concerns about these Proposed Rulemakings or any other issues related to automated vehicle regulation, or would like to submit a comment to NHTSA or the FMCSA, O’Melveny attorneys are available to assist you.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Jason Orr, an O'Melveny associate licensed to practice law in California, and Melody Drummond Hansen, an O'Melveny partner licensed to practice law in California, the District of Columbia, and Illinois, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

© 2019 O’Melveny & Myers LLP. All Rights Reserved. Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York’s Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, T: +1 212 326 2000.