On November 19, 2020, the U.S. Department of
Transportation’s National Highway Traffic Safety Administration
(“NHTSA”) announced that it is seeking public comment on
the potential development of a framework of principles to govern
the safe behavior of automated driving systems (“ADS”)
for use in connected and autonomous vehicles (“CAVs”).1 On the
same day, NHTSA issued an advance notice of proposed rulemaking
(“NPRM”) on a possible ADS framework (the “ADS
NPRM”).2 The ADS NPRM sends a strong signal
that vehicles with ADS may in future be subject to a new generation
of performance and safety (as well as design) standards.


Last year, NHTSA announced that it was seeking public feedback
about the possibility of removing “regulatory barriers”
relating to the introduction of automated vehicles in the United
States.3 Subsequently, NHTSA sought
stakeholder comments on proposed regulations intended to address
the challenges involved in determining which requirements of the
existing Federal Motor Vehicle Safety Standards
(“FMVSS”)4 are relevant to the safety needs
of ADS-equipped vehicles without traditional manual controls, as
well as on “adapting or developing the requirements and the
associated test procedures so that the requirements can effectively
be applied to the novel vehicle designs that may accompany such
vehicles without adversely affecting safety.”5

NHTSA started seeking such public comments as a result of
increasing confusion in the industry on how NHTSA plans to address
ADS technologies. Although wide-scale deployment still may be years
away, many companies are actively developing and testing ADS
technology throughout the United States. The lack of specific
regulatory guidance for ADS has created obstacles for OEMs trying
to meet, and certify compliance with, FMVSS while developing and
deploying their products in a way that establishes safety
equivalence between traditionally operated vehicles and ADS-DVs.
Several CAV manufacturers have applied for exemptions from
compliance with existing FMVSS.6 In February 2020, NHTSA announced
its first approved exemption-from three federal motor vehicle
standards-to Nuro, a California-based company that plans to deliver
packages with a robotic vehicle smaller than a typical car.7 The
exemption allows the company to deploy and produce no more than
5,000 of its “low-speed, occupant-less electric delivery
vehicles” in a two-year period, which would be operated for
local delivery services for restaurants and grocery stores.8

In addition to these actions, on March 17, 2020 (the “March
NPRM”), NHTSA issued an earlier NPRM “to improve safety
and update rules that no longer make sense such as requiring manual
driving controls on autonomous vehicles.”9 The March NPRM aimed
to “help streamline manufacturers’ certification
processes, reduce certification costs and minimize the need for
future NHTSA interpretation or exemption requests.”
Specifically, the March NPRM proposed removing “unnecessary
regulatory barriers to ADS-equipped vehicles” in the
crashworthiness FMVSS, while seeking to maintain current levels of
occupant protection under these standards and also remaining
“technology neutral.” For example, the proposed
regulation would apply front passenger seat protection standards to
the traditional driver’s seat of a CAV, rather than safety
requirements that are specific to the driver’s seat. The March
NPRM did not propose any changes to existing occupant protection
requirements for traditional vehicles with manual controls. NHTSA
described the March NPRM as a “[h]istoric first step for the
agency to remove unnecessary barriers to motor vehicles equipped
with automated driving systems.”

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Now, as noted above, NHTSA has issued a new ADS NPRM. According
to the ADS NPRM, the contemplated ADS framework would
“objectively define, assess, and manage the safety of ADS
performance while ensuring the needed flexibility to enable further
innovation,” drawing upon “existing Federal and
non-Federal foundational efforts and tools in structuring the
framework as ADS continue to develop.”

NHTSA is seeking public comments on how to select and design the
structure and key elements of a framework and the appropriate
administrative mechanisms to achieve the goals of improving safety,
mitigating risk, and enabling the development and introduction of
new safety innovations, as well as on what aspects of ADS
performance are suitable for potential safety standard setting.
“This rulemaking will help address legitimate public concerns
about safety, security and privacy without hampering innovation in
the development of automated driving systems,” said U.S.
Secretary of Transportation Elaine Chao.10

While NHTSA takes the view that the establishment of FMVSS for
ADS would be premature at this stage, it seeks feedback on a
proposed governmental safety framework specifically tailored to ADS
and the role NHTSA would play with respect to guidance and
potential regulation. The proposed framework spans a broad range of
potential regulatory approaches-from a “hands-off”
approach that would include the issuance of guidance documents
addressing best industry practices, providing information to
consumers, and describing different approaches to research and
summarizing the results of research, to more formal regulation such
as rules requiring reporting and disclosure of information or the
adoption of ADS-specific FMVSS.11

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The primary ADS components that would be the focus of
NHTSA’s attention are (1) sensors (how the ADS receives
information about its environment); (2) “perception”
functions (how the ADS detects and categorizes other road users
(vehicles, motorcyclists, pedestrians, etc.), infrastructure
(traffic signs, signals, etc.), and conditions (weather events,
road construction, etc.)); (3) “planning” components (how
the ADS analyzes the situation, plans the route it will take on the
way to its intended destination, and makes decisions on how to
respond appropriately to the road users, infrastructure, and
conditions detected and categorized); and (4) “control”
functions (how the ADS executes the driving functions necessary to
carry out that plan (“control”) through interaction with
other parts of the vehicle).12 NHTSA also seeks feedback on
what kind of engineering measures should be included in the
framework, and whether ADS-specific regulations should be issued
prior to testing and validation or commercial deployment of the

Written comments from stakeholders will be due within 60 days
from the date of publication of the ADS NPRM in the Federal
Register, likely to be November 24 or 25. After considering such
comments, we anticipate that regulatory changes to testing
procedures (including pre-programmed execution, simulation, use of
external controls, use of a surrogate vehicle with human controls,
and technical documentation) and modifications to current FMVSSs
(such as crashworthiness, crash avoidance, and indicator standards)
will be finalized by NHTSA in 2021. We encourage our clients to
contact us if they would like further information or assistance in
developing and submitting comments.

Given the fast pace of developments and tangle of applicable
rules, it is essential that companies operating in this space stay
abreast of legal developments in states as well as cities in which
they are developing or testing AVs, while understanding that any
new federal regulations may ultimately preempt states’
authorities to determine, for example, safety policies or how they
handle their passengers’ data. For more information on legal
and policy developments related to CAVs, please contact the authors
or see Gibson Dunn’s previous legal updates on legislative
developments and NHTSA’s broader policy efforts, including the
re-introduction of the SELF-DRIVE Act (here) and NHTSA’s Autonomous Vehicle
(“AV”) 4.0 Guidelines (here).

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Press Release, U.S. Department of Transportation Seeks Public
Comment on Automated Driving System Safety Principles
19, 2020), available at https://www.nhtsa.gov/press-releases/public-comment-automated-driving-system-safety-principles.

Framework for Automated Driving System Safety, 49 Fed.
Reg. 571 (Nov. 19, 2020), available here.

Removing Regulatory Barriers for Vehicles With Automated
Driving Systems
, 84 Fed. Reg. 24,433 (May 28, 2019) (to be
codified at 49 Fed. Reg. 571); see also Removing
Regulatory Barriers for Vehicles with Automated Driving Systems, 83
Fed. Reg. 2607, 2607 (proposed March 5, 2018) (to be codified at 49
Fed. Reg. 571).

provide the minimum safety performance requirements for motor
vehicles or items of motor vehicle equipment, but were drafted with
traditionally operated vehicles in mind. ADS, as defined by NHTSA,
is the “hardware and software that are, collectively, capable
of performing the entire dynamic task of driving on a sustained
basis.” (Within the SAE automation taxonomy, ADS describes
automation Levels 3, 4, and 5).

Supra, n.3 at 6.

See, e.g., the petition filed by General Motors requesting
temporary exemption from FMVSSs which require manual controls or
have requirements that are specific to a human driver. General
Motors, LLC – Receipt of Petition for Temporary Exemption from
Various Requirements of the Safety Standards for an All Electric
Vehicle with an Automated Driving System
, 84 Fed. Reg.

Congressional Research Service, Issues in Autonomous Vehicle
Testing and Deployment
(Feb. 11, 2020), available at
https://fas.org/sgp/crs/misc/R45985.pdf; U.S. Dep’s of Transp.,
NHTSA Grants Nuro Exemption Petition for Low-Speed Driverless
Vehicle, available at

8. For
more information, see our Artificial Intelligence and Automated
Systems Legal Update (1Q20)
, available at https://www.gibsondunn.com/artificial-intelligence-and-automated-systems-legal-update-1q20/.

9. U.S.
Dep’t of Transp., NHTSA Issues First-Ever Proposal to
Modernize Occupant Protection Safety Standards for Vehicles Without
Manual Controls
, available at https://www.nhtsa.gov/press-releases/adapt-safety-requirements-ads-vehicles-without-manual-controls;
see further Gibson Dunn’s Artificial Intelligence and
Automated Systems Legal Update (1Q20), available at https://www.gibsondunn.com/artificial-intelligence-and-automated-systems-legal-update-1q20/.

NHTSA, Press Release (Nov. 19, 2020), supra,

NHTSA, Framework for Automated Driving System Safety,
supra, n.4 at 8.


Id. at 11.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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