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Legal Update

DOT Releases AV 3.0

4 October 2018
Mayer Brown Legal Update

DOT Releases AV 3.0

Yesterday, the US Department of Transportation (“DOT”) released new guidance, Preparing for the Future of Transportation: Automated Vehicles 3.0 (“AV 3.0”), for the design, testing and deployment of automated vehicles (“AVs”). A key focus throughout AV 3.0 is the removal of unnecessary barriers to the innovation of AV technologies that have the potential to vastly enhance security and increase mobility. AV 3.0 “builds upon – but does not replace” the DOT’s last major policy statement on AVs, Automated Driving Systems 2.0: A Vision for Safety. AV 3.0 expands the applicability of its AV guidance to include not only passenger vehicles but also commercial vehicles, on-road transit and the roadways on which they operate. This update highlights issues of interest for light-duty vehicles.

The DOT announced six principles for shaping policy on autonomous vehicles. The DOT will:

  • Prioritize safety in order to strengthen public confidence in AV technology.
  • Remain technology neutral among AV technologies.
  • Modernize its regulations, including specifically recognizing that the “driver” and “operator” of a vehicle may include an automated system.
  • Promote consistency among federal, state and local requirements in order to advance the integration of AVs in the national transportation system.
  • Prepare proactively for automation through pilot programs, investments and other means, including preparing for communications between vehicles (“V2V”) and between a vehicle and the infrastructure (“V2I”) by working to preserve the 5.9 GHz spectrum for these technologies.
  • Implement these policies in a way that protects freedom of choice to preserve conventional human-operated vehicles while expanding access to transportation choices for the disabled and the older population.

The DOT announced plans to execute these principles through several means. AV 3.0 acknowledges that the current Federal Motor Vehicle Safety Standards (“FMVSS”) assume vehicle operation by a human driver, and, accordingly, the FMVSS focus on safe operation of a vehicle by a human. AV 3.0 recognizes that certain current FMVSS, which were drafted with a human driver in mind (e.g., requirements for a steering wheel, brakes, mirrors and the like), create an unintended barrier to the innovation of AV technologies. Furthermore, given the fast pace of development of these new and sophisticated technologies, safety standards need to be technology neutral and focus on performance outcomes rather than dictate the means for achieving those outcomes. Accordingly, the National Highway Traffic Safety Administration (“NHTSA”) will issue a proposed rule seeking comment on proposed changes to certain FMVSS to accommodate AV technology innovation.

NHTSA will not abandon the traditional self-certification scheme, in which manufacturers self-certify the compliance of their products with applicable standards, and will promote self-certification with international partners as the best approach to balance safety and innovation.

Furthermore, NHTSA will issue a proposed rule seeking comment on changes that would streamline and modernize its procedures for processing applications for exemptions from FMVSS. The changes include eliminating delays associated with seeking public comment to exemptions.

AV 3.0 describes DOT’s desire to encourage AV testing throughout the country. Accordingly, NHTSA will issue an advanced notice of proposed rulemaking seeking comment on a national pilot program to facilitate, monitor and learn from the testing and development of AV technology in lieu of the currently designated “Automated Vehicle Provider Grounds.” Notably, NHTSA intends to rely on its “Special Exemption” authority in 49 USC 30114 to provide exemptions for manufacturers seeking to engage in research, testing and demonstration projects.

AV 3.0 highlights the need for cybersecurity and privacy as AV technologies become increasingly integrated. Multiple connected systems for communication, execution of critical driving functions and data collection open up pathways for cyber attacks and raise concerns about the privacy and security of personal data. The DOT encourages a coordinated effort across the government and private sectors for cyber situational awareness and a unified approach to cyber incidents, including via the voluntary exchange of information regarding vulnerabilities and threats through Information Sharing and Analysis Centers (e.g., the Auto-ISAC) and DHS’s National Cybersecurity and Communications Integration Center.

Furthermore, the DOT is committed to provide best practices and policy considerations to support stakeholders and voluntary technical standards. The DOT identifies voluntary technical standards for vehicle automation by functional area.

The DOT will focus its own AV research resources on the following three areas: (i) developing strategies for the removal of barriers to innovation, (ii) evaluating the impacts of AV technology, especially regarding safety, and (iii) addressing market failures and other compelling needs, such as access to transportation for the disabled.

The DOT envisions managing the safety risk associated with AVs through a staged process. First, conduct early testing to understand the safety risks and implement mitigation strategies. Second, build confidence in the technology through expanded road testing. Finally, move toward limited full deployment (i.e., demonstrations) with wide public engagement and commercial operations, including opportunities for public feedback.

Authors

  • Erika Z. Jones
    T +1 202 263 3232
  • Linda L. Rhodes
    T +1 202 263 3382
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