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NHTSA Seeks Public Comment On Wide Range of Automated Driving Safety Topics, in Significant Departure From Previous Rulemaking Efforts

November 20, 2020

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The National Highway Traffic Safety Administration (NHTSA) is planning a significant departure from previous rulemaking efforts to guide the development of automated vehicles. On November 19, 2020, NHTSA released an Advanced Notice of Proposed Rulemaking (“ANPRM”) that seeks comments on an array of topics that would assist the agency in creating a “Framework for Automated Driving System Safety.” Comments will be due 60 days after the ANPRM is published in the Federal Register.

This ANPRM is a next step on a long path toward establishing federal safety standards for AVs. It follows a May 2019 ANPRM (“Removing Regulatory Barriers for Vehicles with Automated Driving Systems”) that focused on amending current federal motor vehicle safety standards (FMVSS) to allow vehicle configurations that are not designed for human drivers. This new ANPRM indicates a shift in the agency’s focus from regulatory barriers to the development of a safety framework for AVs.

NHTSA acknowledges that the development of such a framework will require significant engineering research and establishing an appropriate standard for measuring AV safety. This ANPRM solicits comments from the public to inform this work. The agency envisions a safety framework that would use performance-oriented approaches and metrics that afford design flexibility to AV developers while establishing clear and objective standards for the functions that NHTSA views as most critical for safe operation. Such a framework could serve as the basis for a new generation of FMVSS that govern AVs.

This ANPRM specifically seeks comments related to what NHTSA considers the four core functions of an automated driving system:

  • sensing — the ability of the AV to receive information from its environment;
  • perception — the ability of the AV to interpret the information received through sensors;
  • planning — the ability of the AV to establish and navigate a route to its destination; and
  • control — the ability of the AV to execute the driving functions necessary to carry out the driving plan.

NHTSA seeks comments from the public on a range of topics, including (1) whether these are the core functions of AV driving systems; (2) how the agency can reliably evaluate these functions; and (3) which administrative mechanisms (e.g., sharing best practices, voluntary reporting, promulgating new FMVSS) would allow NHTSA to practically improve ADS safety in accordance with its duties. At the end of the ANPRM, NHTSA poses 25 questions to guide commenters’ responses, many inviting broader commentary on topics such as the best approach to develop a framework for regulating AV safety, near-term and longer-term solutions, and NHTSA’s statutory authority to act. This ANPRM invites views on a wide range of topics that may be of interest to many across the AV industry.

If you have questions about this ANPRM or any other issues related to automated vehicle regulation, or would like to submit a comment to NHTSA in response to this ANPRM, 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. Melody Drummond Hansen, an O’Melveny partner licensed to practice law in California, the District of Columbia, and Illinois, Jason A. Orr, an O’Melveny counsel licensed to practice law in California, and Jonathan C. Bridges, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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