US DOT Regulatory Moves Foreshadow Big Changes in 2020
By: Keith Naughton
Tags: Administrative Law, Technology News, Self Driving Cars, Regulation, Transportation

The Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Traffic Safety Administration (NHTSA) posted important regulatory documents with comment deadlines this summer. Both documents are Advance Notices of Proposed Rulemaking (ANPRM). The ANPRMs not only signal the start of a more active regulatory phase for US DOT, they will now require US DOT to respond directly to comments and thus the ANPRMs will build a formal record that has the force of administrative law behind it.

The Basics

· The comment deadline for the NHTSA notice is July 29th.

· The comment deadline for the FMCSA notice was extended to August 26th.

· The NHTSA notice is the starting the process to update Federal Motor Vehicle Safety Standards for Level 4 and Level 5 AVs, in particular for unconventional design (i.e. AVs without manual controls).

· The FMCSA notice begins the process for updating its regulations for operation, testing and inspection. FMCSA will only apply new regulations to Level 4 and Level 5. As Levels 1–3 require the presence of a human operation, FMCSA states explicitly it is not intending to change regulations for Level 1–3 CMVs.

· NHTSA indicates that changes to FMVSS Series 100 and 200 that accommodate AVs will be formalized. The process starts with the current ANPRM.

Why Is an Advance Notice Important?

An Advance Notice is the first concrete step in promulgating new regulations. Federal agencies must respond to germane comments on the record. Until now, US DOT has only published Requests for Comment and policy documents (i.e. Automated Vehicles 3.0), which is an information-gathering exercise. Important, to be sure, but RFCs do not have any legal force and federal agencies are not required to respond to comments. ANPRMs are followed by a formal Notice of Proposed Rulemaking (NPRM), which is the actual proposed regulation and will include on-the-record responses to comments submitted for the ANPRM.

The current ANPRMs are the most important regulatory documents released to date for the regulation of automated vehicles.

What Is and Is Not Covered?

The ANPRMs only cover Level 4 and Level 5 vehicles. No regulatory changes are proposed for Levels 1–3. FMCSA is broadly considering issues related to operation (including CDL endorsements and Hours of Service), testing and inspection. Roadside inspections and cybersecurity issues are part of the ANPRM.

The NHTSA ANPRM is the starting document for updating FMVSS Series 100 and 200. NHTSA wants to eliminate requirements that are not applicable to AVs. As importantly, NHTSA seeks assistance in developing new safety testing methods. Six different options are presented for comment: A) Normal ADS-DV Operation; B) TMPE (Test-Mode with Pre-programmed Execution); C) TMEC (Test-mode with External Control); D) Simulation; E) Technical Documentation; and F) Surrogate Vehicle with Human Controls.

Where Does US DOT Go from Here?

Both ANPRMs are the starting points for updating current regulations that will accommodate the unique characteristics of AV. Both FMCSA and NHTSA will need to review all comments and craft formal responses that are consistent with the regulations it intends to adopt. Neither agency faces a legal deadline to respond and release the follow-up NPRM, however, US DOT does want to get new rules in place to provide certainty for the industry. In the end, US DOT wants to promote and grow AV.

Critically, the NHTSA ANPRM indicates that a team at Virginia Tech is drafting new FMVSS technical language and such language for 30 FMVSSs is due by the end of the calendar year. Reading between the lines, it appears that these 30 FMVSSs will be part of a Notice of Proposed Rulemaking that NHTSA will want to release in early 2020.