The wheels continue to turn with the National Highway Traffic Safety Administration’s (“NHTSA”) efforts to modernize vehicle safety standards, including for connected and automated vehicles (“CAVs”).  Most recently, NHTSA issued a Notice of Proposed Rulemaking (“NPRM”), seeking public comment on its endeavors “to improve safety and update rules that no longer make sense” for certain CAVs, “such as requiring manual driving controls on autonomous vehicles.”  According to NHTSA, the NPRM is a “[h]istoric first step for the agency to remove unnecessary barriers to motor vehicles equipped with automated driving systems” (“ADS”).

Comments on the NPRM are due by May 29, 2020.

NHTSA’s Drive to Update Safety Standards

NHTSA’s mission is to save lives, prevent injuries, and reduce the economic costs of motor vehicle crashes on U.S. roads.  To that end, NHTSA has developed the Federal Motor Vehicle Safety Standards (“FMVSS”), which provide the minimum safety performance requirements for motor vehicles or items of motor vehicle equipment.  The FMVSS specify certain design, construction, and performance elements of motor vehicles to protect against unreasonable risk of serious injuries and fatalities resulting from crashes involving such vehicles.  One set of standards pertains to “crashworthiness,” which covers occupant protection to reduce death and injury resulting from crashes.  The “crashworthiness” standards are the subject of the NPRM.

The FMVSS were drafted to reflect the traditional driving paradigm with a driver who sits behind a steering wheel to control a vehicle, and a passenger beside the driver.  This drafting has resulted in significant barriers for CAV manufacturers (in NHTSA’s parlance, makers of ADS-equipped vehicles) trying to meet, and certify compliance with, FMVSS while developing and deploying their products.  ADS generally refers to hardware and software that are collectively capable of performing the entire dynamic task of driving on a sustained basis.  With respect to the SAE automation levels, ADS typically describes Levels 3, 4, and 5 of driving automation systems.

With high rates of motor vehicle injuries and fatalities persisting around the country, NHTSA has recognized that advanced vehicle technologies such as ADS may play a critical role in saving lives.  The recent NPRM therefore reflects NHTSA’s broader efforts to modify and update the FMVSS to explore the promises of ADS-equipped vehicles in working toward NHTSA’s mission.  For instance, the recent NPRM follows NHTSA’s grant of Nuro’s petition for a temporary exemption from certain FMVSS to deploy its driverless delivery vehicles.  (Note, however, that NHTSA has yet to issue a response to a petition submitted by General Motors for exemption from FMVSS requiring a steering wheel and pedals.)


The NPRM has two overarching aims:  to remove “unnecessary regulatory barriers to ADS-equipped vehicles” in the crashworthiness FMVSS, while seeking to maintain current levels of occupant protection under these standards.  The NPRM additionally proposes to clarify the application of the crashworthiness standards to ADS-equipped vehicles that lack manual controls, and facilitate the certification and compliance verifications of these vehicles for occupant protection, as required by NHTSA.

To these ends, the NPRM proposes various changes to the crashworthiness FMVSS.  First, the NPRM proposes to revise, modify, and relocate certain definitions in the crashworthiness standards to make them applicable for ADS-equipped vehicles.  For instance, although the NPRM proposes to maintain the definition of “driver” itself (and also not to add “ADS”), the NPRM seeks to modify definitions that reference the “driver” (e.g., “driver air bag,” “driver designated seating position,” and “passenger seating position”) to cover ADS-equipped vehicles in addition to traditional vehicles with human drivers.

The NPRM also proposes to revise standards based on assumptions that are not clearly applicable to ADS-equipped vehicles.  As an example, certain standards reference the designated seating positions of occupants.  But not all ADS-equipped vehicles have occupants (e.g., occupant-less trucks), creating barriers for ADS-equipped vehicles that seek certification and compliance with standards that reference “designated seating positions.”  As a result, NHTSA is proposing revised standards clarifying that they apply to “trucks with at least one designated seating position,” as opposed to trucks generally.  According to NHTSA, such a revision maintains current safety standards because a vehicle without occupants would not need to conduct specified occupant safety tests.

Similarly, the NPRM proposes changes where the absence of a steering control system may alleviate some traditional safety concerns.  It also seeks to clarify how airbag requirements apply when there is not a traditional driver’s seat, as well as how to protect children when they are in that traditional driver’s seat spot.

In making its proposal, NHTSA announces that it seeks to remain technology neutral, which is consistent with previous U.S. Department of Transportation (“DOT”) guidance.

The Longer Road

This NPRM, and NHTSA’s broader efforts with respect to CAVs more generally, are not issued in isolation.  DOT released AV 4.0 earlier this year, which describes in greater detail the various efforts of 38 federal departments and agencies to promote, support, and provide accountability for users and communities with respect to autonomous mobility.  Meanwhile, on Capitol Hill, lawmakers have been working on a bipartisan, bicameral basis to develop comprehensive CAV legislation.  Earlier this year, legislators sent out draft sections of AV legislation for stakeholder comment.  The draft sections cover arbitration, cybersecurity, and consumer education; they follow previous portions of the draft, released last fall, which pertain to exemptions, testing and evaluation, and the creation of an automated vehicles advisory council.

With the COVID-19 pandemic some CAV initiatives have slowed.  Nonetheless, CAVs have shown promise in the effort to stem the crisis, including autonomous shuttles that have transported COVID-19 tests in Florida.  CAV-related technologies have also provided critical assistance in combatting COVID-19, including autonomous robots in hospitals, as well a range of other solutions that we have detailed here.  This latest NPRM suggests that NHTSA may not take its foot off the gas in eliminating regulatory barriers to CAV progress.

This post is a part of Covington’s CAV blog series, which covers CAV developments across the world.  To access prior CAV blog posts and webinars and to learn more about our team and our work, please visit Covington’s CAV website.