[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Proposed Rules]
[Pages 78058-78075]
[FR Doc No: 2020-25930]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2020-0106]
RIN 2127-AM15

Framework for Automated Driving System Safety

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: NHTSA is requesting comment on the development of a framework
for Automated Driving System (ADS) safety. The framework would
objectively define, assess, and manage the safety of ADS performance
while ensuring the needed flexibility to enable further innovation. The
Agency is seeking to draw upon existing Federal and non-Federal
foundational efforts and tools in structuring the framework as ADS
continue to develop. NHTSA seeks specific feedback on key components
that can meet the need for motor vehicle safety while enabling
innovative designs, in a manner consistent with agency authorities.

DATES: Written comments are due no later than February 1, 2021.

ADDRESSES: Comments must refer to the docket number above and be
submitted by one of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery or Courier: U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. Eastern
time, Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call<PHONE_NUMBER> before coming.
     Fax:<PHONE_NUMBER>.
    Regardless of how you submit your comments, you must include the
docket number identified in the heading of this document.
    Note that all comments received, including any personal information
provided, will be posted without change to http://www.regulations.gov.
Please see the ``Privacy Act'' heading below.
    You may call the Docket Management Facility at<PHONE_NUMBER>. For
access to the docket to read background documents or comments received,
go to http://www.regulations.gov or the street address listed above. To
be sure someone is there to help you, please call<PHONE_NUMBER> before
coming. We will continue to file relevant information in the Docket as
it becomes available.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to inform its decision-making process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to http://www.regulations.gov, as described in
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed
at https://www.transportation.gov/privacy. Anyone can search the
electronic form of all comments received into any of our dockets by the
name of the individual submitting the comment (or signing the comment,
if submitted on behalf of an association, business, labor union, etc.).

FOR FURTHER INFORMATION CONTACT:
    For legal issues, Sara R. Bennett, Attorney-Advisor, Vehicle
Rulemaking and Harmonization, Office of Chief Counsel,<PHONE_NUMBER>,
email<EMAIL_ADDRESS>    For research issues, Lori Summers, Director, Office of Vehicle
Crash Avoidance and Electronic Controls Research, telephone: 202-366-
4917, email<EMAIL_ADDRESS>    For rulemaking issues, Tim J. Johnson, Acting Director, Office of
Crash Avoidance Standards, telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Introduction
    A. Development of ADS
    B. Potential Benefits of ADS
    C. NHTSA Regulatory Activity To Remove Unintentional and
Unnecessary Barriers to the Development and Deployment of ADS
Vehicles
    D. Need for a Safety Framework, Including Implementation and
Oversight Mechanisms, for Federal Efforts To Address ADS Performance
III. Safety Framework--Core Elements, Potential Approaches, and
Current Activities
    A. Engineering Measures--Core Elements of ADS Safety Performance
    1. Core ADS Safety Functions
    2. Other Safety Functions
    3. Federal Engineering Measure Development Efforts
    4. Other Notable Efforts Under Consideration as Engineering
Measures
    B. Process Measures--Safety Risk Minimization in the Design,
Development, and Refinement of ADS
    1. Functional Safety
    2. Safety of the Intended Functionality
    3. UL 4600
IV. Safety Framework--Administrative Mechanisms for Implementation
and Oversight
    A. Voluntary Mechanisms
    1. Safety Self-Assessment and Other Disclosure/Reporting
    2. New Car Assessment Program (NCAP)
    3. Operational Guidance
    B. Regulatory Mechanisms
    1. Mandatory Reporting and/or Disclosure
    2. NHTSA's FMVSS Setting Authority
    3. Applying the Established FMVSS Framework to ADS Safety
Principles
    4. Reforming How NHTSA Drafts New FMVSS To Keep Pace With
Rapidly Evolving Technology
    5. Examples of Regulatory Approaches
    D. Timing and Phasing of FMVSS Development and Implementation
    E. Critical Factors Considered in Designing, Assessing, and
Selecting Administrative Mechanisms
V. Questions and Requests
VI. Preparation and Submission of Written Comments
VII. Regulatory Notices

I. Executive Summary

    Over the past several years, NHTSA has published numerous research
reports, guidance documents, advance notices of proposed rulemakings,
and, on March 30, 2020 (85 FR 17624), a notice of proposed rulemaking
relating to the development of vehicles equipped with Automated Driving
Systems (ADS).\1\ An ADS is the

hardware and software that are, collectively, capable of performing the
entire dynamic driving task on a sustained basis, regardless of whether
it is limited to a specific operational design domain (ODD).\2\ In less
technical terms, an ADS maintains the control and driving functions
within the situations that the system is designed to operate in.
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    \1\ ADS, as defined by SAE International and as used in this
document, refers to driving automation Levels 3-5. SAE International
J3016_201806 Taxonomy and Definitions for Terms Related to Driving
Automation Systems for On Road Motor Vehicles. Previous notices
issued by NHTSA focused on driving automation Levels 4 and 5, due to
the unique vehicle designs expected for vehicles intended to operate
without necessary human intervention, and thus, potentially designed
without traditional manual controls.
    This document does not focus on any particular vehicle type, but
rather, on the ADS itself. NHTSA recognizes that the vehicle type
for which the ADS is developed to operate may impact the resulting
ADS performance, but the Agency is not delving into this level of
specificity at this time.
    Finally, the major notices that NHTSA has published in the past
several years are: Removing Regulatory Barriers for Vehicles With
Automated Driving Systems Request for Comment, 83 FR 2607 (Jan. 18,
2018); Removing Regulatory Barriers for Vehicles With Automated
Driving Systems Advance Notice of Proposed Rulemaking, 84 FR 24433
(May 28, 2019); Occupant Protection for Automated Driving Systems
Notice of Proposed Rulemaking, 85 FR 17624 (Mar. 20, 2020).
    \2\ SAE International J3016_201806 Taxonomy and Definitions for
Terms Related to Driving Automation Systems for On-Road Motor
Vehicles.
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    In general, the Agency's ADS-related publications issued so far
address the challenges involved in determining which requirements of
the existing Federal Motor Vehicle Safety Standards (FMVSS) are
relevant to the safety needs of ADS-equipped vehicles without
traditional manual controls, and then 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.
Thus, those notices, particularly the Agency's regulatory notices, have
focused more on the design of the vehicles that may be equipped with an
ADS--not necessarily on the performance of the ADS itself. NHTSA has
also published recommendations to ADS developers, including automakers
and technology companies, most prominently in Automated Driving Systems
2.0: A Vision for Safety. The Agency has also proposed in a notice-and-
comment rulemaking to remove unintended and unnecessary regulatory
barriers (e.g., proposing to remove the requirement for installation of
advanced air bag systems in delivery trucks with no occupant
compartment) or other impediments to the development or deployment of
vehicles with ADS. This approach has been appropriate as a means to
pave the way for the safe development and eventual deployment of ADS
technology, particularly because the Agency understands that ADS-
equipped vehicles are likely to remain in the pre-deployment testing
and development stage for at least the next several years. Further, as
small-scale deployments start to appear in the coming years, NHTSA will
address unreasonable safety risks that may arise using its defect
investigation and remediation authority.
    Though wide-scale deployment still may be several years away, many
companies are actively developing and testing ADS technology throughout
the United States. This development process for ADS is complex and
iterative. Accordingly, it may be premature for NHTSA to develop and
promulgate a specialized set of FMVSS or other performance standards
for ADS competency. NHTSA's existing FMVSS set minimum performance
requirements for vehicles and equipment, and they follow an approach
that is performance-based, objective, practicable, and established with
precise and repeatable test procedures.\3\
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    \3\ See 49 U.S.C. 30111(a); Chrysler Corp. v. Dep't of Transp.,
472 F.2d 659 (6th Cir. 1972); Nat'l Tire Dealers & Retreaders Ass'n,
Inc. v. Brinegar, 491 F.2d 31 (D.C. Cir. 1974); Paccar, Inc. v.
Nat'l Highway Traffic Safety Admin., 573 F.2d 632 (9th Cir. 1978).
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    The development of an FMVSS typically requires significant
engineering research, the development of an objective metric (i.e.,
knowing what aspect or aspects of performance to measure), and the
establishment of an appropriate standard based upon that metric (i.e.,
specifying the minimum required level of performance). Premature
establishment of an FMVSS without the appropriate knowledge base could
result in unintended consequences. For example, a premature standard
might focus on the wrong metric, potentially placing constraints on the
wrong performance factors, while missing other critical safety factors.
Such a standard could inadvertently provide an unreliable sense of
security, potentially lead to negative safety results, or potentially
hinder the development of new ADS technology.

Safety Framework

    Although the establishment of an FMVSS for ADS may be premature, it
is appropriate to begin to consider how NHTSA may properly use its
regulatory authority to encourage a focus on safety as ADS technology
continues to develop. This document, thus, marks a significant
departure from the regulatory notices NHTSA has previously issued on
ADS because NHTSA is looking beyond the existing FMVSS and their
application to novel vehicle designs and is considering the creation of
a governmental safety framework specifically tailored to ADS.
    Rather than elaborating and prescribing by rule specific design
characteristics or other technical requirements for ADS, NHTSA
envisions that a framework approach to safety for ADS developers would
use performance-oriented approaches and metrics that would accommodate
the design flexibility needed to ensure that manufacturers can pursue
safety innovations and novel designs in these new technologies. This
framework could involve a range of actions by NHTSA, including guidance
documents addressing best industry practices, providing information to
consumers, and describing different approaches to research and
summarizing the results of research, as well as more formal regulation,
from rules requiring reporting and disclosure of information to the
adoption of ADS-specific FMVSS. These different approaches would likely
build off the three primary ADS guidance documents issued in recent
years by DOT (i.e., ADS 2.0, Preparing for the Future of
Transportation: Automated Vehicles 3.0 (AV 3.0), and Ensuring American
Leadership in Automated Vehicle Technologies: Automated Vehicles 4.0
(AV 4.0)). As described in this document, NHTSA seeks comment on the
appropriate role of the Agency in facilitating ADS risk management
through guidance and/or regulation.
    This document focuses on ways the Agency could approach the
performance evaluation of ADS through a safety framework, containing a
variety of approaches and mechanisms that, together, would allow NHTSA
to identify and manage safety risks related to ADS in an appropriate
manner. NHTSA anticipates focusing this framework on the functions of
an ADS that are most critical for safe operation.
    At this stage, NHTSA believes there are four primary functions of
the ADS that should be the focus of the Agency's attention. First, how
the ADS receives information about its environment through sensors
(``sensing''). Second, 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.) (``perception''). Third, 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 (``planning''). Fourth, how the ADS executes
the driving functions necessary to carry out that plan (``control'')
through interaction with other parts of the vehicle. While other
elements of ADS safety are discussed throughout this document, these
four primary functions serve as the core elements NHTSA is considering.
    The Agency anticipates that the safety framework would include both
process and engineering measures to manage risks. The process measures
(e.g., general practices for analyzing, classifying by severity level
and frequency, and reducing potential sources of risks during the
vehicle design process) would likely include robust safety assurance
and functional safety programs. The engineering measures (e.g.,
performance metrics, thresholds, and test procedures) would seek to
provide ways of demonstrating that ADS perform their sensing,
perception, planning, and control (i.e., execution) of intended
functions with a high level of proficiency.

Administration of a Framework

    NHTSA is seeking comment on the manner in which the framework can
and should be administered (e.g., guidance, consumer information, or
regulation) to support agency oversight of ADS-related aspects. Since
some of the mechanisms described in this document (e.g., guidance)
could be implemented more quickly than others (e.g., FMVSS), the
mechanisms could be adopted, when and as needed, in a phased manner,
and implementation of some types of mechanisms might end up not being
necessary. This document will go into greater detail on the various
types of administrative mechanisms upon which the Agency is seeking
comment in later sections.

Future of ADS Regulation

    Eventually, non-regulatory aspects of the framework, combined with
information learned from research and the continued development of ADS,
could serve as the basis for development of FMVSS governing the
competence of ADS. The sub-elements of the sensing, perception,
planning, and control functions could evolve into new FMVSS focused
entirely on ADS competence. A new generation of FMVSS should give the
manufacturers of vehicles, sensors, software, and other technologies
needed for ADS sufficient flexibility to change and improve without the
need for frequent modifications to the regulations. If new FMVSS were
developed and adopted, they could be applied on an ``if-equipped''
basis to existing traditional classes of vehicles (e.g., passenger
cars, multipurpose passenger vehicles, buses, and trucks). By an ``if-
equipped'' FMVSS, NHTSA means an FMVSS that would not mandate the
installation of ADS in motor vehicles, but would instead specify
performance requirements for those vehicles equipped with ADS.
Similarly, a new FMVSS could be applied to the entire vehicle of new
classes of vehicles, i.e., subclasses of vehicles equipped with ADS. In
making this choice, the administrative feasibility of creating,
updating, and implementing requirements for multiple subclasses would
need to be carefully considered.

Comments Requested

    NHTSA seeks 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. To aid interested persons in forming their views and
preparing their comments, this document surveys ongoing efforts in the
private and public sectors to create a safety framework.
    In their written submissions, commenters should discuss, for
example, what engineering and process measures should be included, and
what aspects of ADS performance are suitable for potential safety
performance standard setting (i.e., what aspects of ADS performance
should manufacturers be required to certify that their system possess?
Of the many aspects of sensing, perception, planning, and control that
manufacturers will need to prove for their own purposes, the Agency
wishes to know which aspects would be so important that they should be
subject to separate Federal regulations. The Agency also wishes to hear
from the public on whether ADS-specific regulations are appropriate or
necessary prior to the broad commercial deployment of the technology,
and, if so, how regulations could be developed consistent with the
Agency's legal obligations without being based upon the existence of
commercially available ADS technology from which to measure required
performance. The Agency also seeks comment on how the need for and
benefits of issuing regulations can be assessed before ADS become
available to allow testing and validation of the assumptions supporting
those needs and benefits. In addition, the Agency seeks comment on
which type or types of administrative mechanisms would be most
appropriate for constructing the framework, either in general or for
its component parts, and ensuring its effective and efficient
implementation.

II. Introduction

A. Development of ADS

    The development of ADS \4\ continues and is well under way.
Developers are testing components and systems through simulation and
modeling, controlled track testing, and limited on-road testing with
test vehicle operators and monitors, and, in some cases, limited on-
road deployments. The Agency believes these activities will continue to
increase.\5\
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    \4\ The term ``ADS'' specifically refers to SAE Level 3, 4, or 5
driving automation systems as described in SAE International
J3016_201806 Taxonomy and Definitions for Terms Related to Driving
Automation Systems for On Road Motor Vehicles.
    \5\ Some examples of companies planning on the ride-sharing or
delivery business models include Cruise, Waymo, Argo AI, Uber, Lyft,
Nuro.
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    In July 2020, NHTSA identified on-road testing and development
activities in 40 States and the District of Columbia.\6\ At the same
time, 66 companies in California, one of the main hubs of testing
activity in the world, had valid State permits to test ADS-equipped
vehicles with safety drivers on public roadways.\7\ Two of those
companies also received permits allowing for driverless testing in
California.\8\ One of those companies received permission from
California in July 2019 to carry passengers in its ADS-equipped
vehicles while a safety driver is present.\9\ In the Phoenix area, one
company is even providing limited rideshare services to participants in
its testing program without an in-vehicle safety driver. This same
company recently announced that it is expanding these rideshare
services.\10\ One manufacturer of small, low-speed, occupant-less
delivery vehicles, received a temporary exemption from NHTSA to deploy
up to 2,500 vehicles per year for two years.\11\ That same company has
also received a permit

from California to perform driverless testing.\12\
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    \6\ NHTSA notes that the State count includes active (ongoing),
planned, and inactive (completed) projects.
    \7\ https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/permit.
    \8\ https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/driverlesstestingpermits.
    \9\ Other companies have received permission to carry passengers
in their ADS-equipped vehicles while a safety driver is present, and
they are listed here: https://www.cpuc.ca.gov/avcissued/.
    \10\ https://blog.waymo.com/2020/10/waymo-is-opening-its-fully-driverless.html.
    \11\ 85 FR 7826 (Feb. 11, 2020).
    \12\ https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/driverlesstestingpermits.
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    As described in AV 3.0, ADS development does not start with public,
on-road testing. Rather, much of the very early testing of prototype
ADS by developers is conducted in simulation and/or closed-course
(i.e., track) testing environments.\13\ Public road testing of a
prototype ADS typically begins after significant engineering and safety
analysis are performed by developers to understand safety risks and
mitigation strategies are put in place to address those risks. It is
important to note that the development process is generally both
iterative and cyclical. A developer does not ``graduate'' from
simulation to track test, and then to on-road testing, and then
deployment. Instead, developers will generally continue simulation
testing throughout the development process to gain additional
experience with various scenarios that may be encountered rarely in the
real world. Similarly, track testing designed to resemble scenarios
that may be encountered rarely or that would be dangerous to attempt on
public roads until later stages of readiness will occur throughout the
process, even as on-road testing is occurring. Further, experiences
gained from on-road testing will often lead to simulation and/or test
track replication of situations encountered on public roads to improve
the ADS. In other words, the fact that a vehicle is being tested on
public roads does not mean that the vehicle or ADS is nearing
deployment readiness and, conversely, the fact that a vehicle is still
undergoing simulation or track testing does not mean is it not safe to
be tested on public roads.
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    \13\ https://www.transportation.gov/av/3.
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    NHTSA's understanding is that there are generally different stages
of safety risk management during the on-road testing of prototype
ADS.\14\ First is the development and early stage road testing, which
is often comprised of the characteristics such as safety drivers
serving key safety risk mitigation roles, rapid updating of ADS
software to incorporate lessons learned, and focus on validating the
performance of the ADS from the simulation and close-course testing
environments. Second, once development progresses, companies may expand
ADS road testing and focus on building confidence in the ADS within the
locations and situations in which the system is designed to function
(i.e., operational design domain).\15\ The primary purpose of this
stage of testing is to build statistical confidence in matured software
and hardware within the intended operational environment and observe
system failures, safety driver subjective feedback, and execution of
fail-safe/fail-operational system behaviors. Third, and finally, ADS
developers may progress to deployment of ADS, in either limited or full
capacity.
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    \14\ https://www.transportation.gov/sites/dot.gov/files/docs/policy-initiatives/automated-vehicles/320711/preparing-future-transportation-automated-vehicle-30.pdf.
    \15\ Operational design domain (ODD) is the operating conditions
under which a given driving automation system or feature thereof is
specifically designed to function, including, but not limited to,
environmental, geographical, and time-of-day restrictions, and/or
the requisite presence or absence of certain traffic or roadway
characteristics. SAE International J3016_201806 Taxonomy and
Definitions for Terms Related to Driving Automation Systems for On
Road Motor Vehicles.
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    As stated in AV 3.0, NHTSA believes that on-road testing is
essential for the development of ADS-equipped vehicles that will be
able to operate safely on public roads. Most of the ADS testing
activity in the United States is in the early stages of on-road
testing. Safety drivers oversee the ADS during testing for most
companies, though some companies have progressed to the later stages of
on-road testing. Despite this development and all the progress the
industry has made over the past several years, no vehicle equipped with
an ADS is available for purchase in the United States or deployed
across the United States.\16\
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    \16\ While Nuro was granted an exemption allowing for deployment
of their low-speed, occupantless delivery vehicle, the terms of the
exemption provide that Nuro must maintain ownership and operational
control over the R2Xs that are built pursuant to the exemption for
the life of the vehicles. See Nuro, Inc.; Grant of Temporary
Exemption for a Low-Speed Vehicle With an Automated Driving System,
85 FR 7826 (Feb. 11, 2020), available at https://www.federalregister.gov/documents/2020/02/11/2020-02668/nuro-inc-grant-of-temporary-exemption-for-a-low-speed-vehicle-with-an-automated-driving-system.
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    NHTSA recognizes the critical role that State and local governments
play in traffic safety, including our shared oversight of on-road
testing of vehicles with ADS. Their roles in the active on-road testing
and development throughout the country is part of why NHTSA recently
launched its Automated Vehicles Transparency and Engagement for Safe
Testing (AV TEST) Initiative to facilitate further dialogue and
transparency of the state of ADS development. This initiative features
a series of meetings and workshops where State and local governments
discuss their activities, lessons learned, and best practices for
oversight of on-road testing, and NHTSA discusses its research and
rulemaking activities. The initiative also involves automakers and ADS
developers, and provides a forum to promote public engagement and
knowledge-sharing about safety in the development and testing of ADS-
equipped vehicles. The AV TEST Initiative will also provide an online,
public-facing platform for sharing ADS road testing activities and
other relevant information at the local, State, and national levels. It
will feature an online mapping tool that will show road testing
locations, as well as testing activity data such as dates, frequency,
vehicle counts, and routes.

B. Potential Benefits of ADS

    NHTSA's mission is to save lives, prevent injuries, and reduce
economic costs due to road traffic crashes, through education,
research, guidance, safety standards, and enforcement activity. If
developed and deployed safely, ADS can aid in achieving that mission,
given their potential to prevent, reduce, or mitigate crashes involving
human error or poor choices. This potential stems from the substantial
role that human factors (distraction, impairment, fatigue, errors in
judgment, and decisions not to obey traffic laws) play in contributing
to crashes.\17\ In addition, they have the potential to enhance
accessibility (e.g., through allowing personal transportation to people
with disabilities or people incapable of driving), and improve
productivity (e.g., by allowing people to work while being transported
and allowing platooning or entirely automated operation of commercial
trucks). Accordingly, NHTSA is placing a priority on the safe
development and testing of ADS that factors safety into every step
toward eventual deployment.
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    \17\ See Critical Reasons for Crashes Investigated in the
National Motor Vehicle Crash Causation Survey (Feb. 2015), available
at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812115.
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C. NHTSA Regulatory Activity To Remove Unintentional and Unnecessary
Barriers to the Development and Deployment of ADS Vehicles

    To date, NHTSA's regulatory notices have focused on ADS-equipped
vehicles without traditional manual controls by assessing the
modifications to existing FMVSS that may be necessary to address the
designs and any unique safety needs of those vehicles.\18\ For example,
while vehicles that cannot be driven by human drivers and vehicles that
can be driven by human drivers both need brakes that stop them
effectively, each set of vehicles may have different safety needs.
Traditional

vehicles rely on human drivers, while the ADS-equipped vehicles rely on
an ADS to acquire information about the location and movement of other
roadway users, weather conditions, and vehicle operating status--all
while making driving decisions. These differing safety needs may mean
that the installation of some features currently required by the FMVSS
(e.g., mirrors, dashboard controls, some displays) into vehicles
without traditional manual driving controls may no longer meet a need
for safety. Further, while steering machines and other equipment can be
made to simulate human drivers in conducting the track testing of
vehicles with manual controls, having NHTSA instruct the ADS of a
vehicle that lacks manual controls how to perform the same testing may
be more challenging.
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    \18\ See 84 FR 24433 (May 28, 2019) and 85 FR 17624 (Mar. 30,
2020).
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D. Need for a Safety Framework, Including Implementation and Oversight
Mechanisms, for Federal Efforts To Address ADS Performance

    The National Traffic and Motor Vehicle Safety Act of 1966, as
amended (``Safety Act'') tasks NHTSA with reducing traffic accidents,
deaths, and injuries resulting from traffic accidents through issuing
motor vehicle safety standards for motor vehicles and motor vehicle
equipment and carrying out needed safety research and development.\19\
The FMVSS established by NHTSA must: Meet the need for motor vehicle
safety; be practicable, both technologically and economically; and be
stated in objective terms. The final requirement means that they are
capable of producing identical results when test conditions are exactly
duplicated and determinations of compliance must be based on scientific
measurements, not subjective opinion.\20\ In addition, in issuing an
FMVSS, the Agency must consider whether the standard is reasonable,
practicable, and appropriate for the types of motor vehicles or motor
vehicle equipment for which it is prescribed.\21\
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    \19\ 49 U.S.C. 30101.
    \20\ 49 U.S.C. 30111(a), Chrysler Corp. v. Dep't of Transp., 472
F.2d 659 (6th Cir. 1972).
    \21\ 49 U.S.C. 30111(b)(3).
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    NHTSA typically begins the process of promulgating a FMVSS by
identifying the aspect of performance that may need regulation (i.e.,
the safety need \22\). NHTSA analyzes real-world crash data and other
available information in order to identify safety issues and quantify
the size of the safety problems, researches potential solutions or
countermeasures to the safety issues that have been identified, and
then develops practicable performance or related requirements intended
to either resolve or mitigate the crash risk identified. Manufacturers
are then required to self-certify, by whatever reasonable means they
choose, that their vehicles or equipment meet the performance
requirements. Finally, NHTSA assesses vehicle or equipment compliance
with those established requirements through the validated test
procedures that it has developed.
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    \22\ ``The Safety Act's mandate is not, however, categorical.
Not all risks of accident or injury are to be eliminated, but only
those that are ``unreasonable.'' Ctr. for Auto Safety v. Peck, 751
F.2d 1336, 1343 (D.C. Cir. 1985).
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    Based on the current state of ADS development, it is probably too
soon to make any decisions about the extent to which new FMVSS might be
needed to address particular aspects of the safety performance of these
systems. ADS are, generally, in the development stages, and market-
ready, mature ADS do not yet exist. Accordingly, there do not exist
meaningful data about the on-road experience of these systems that can
be analyzed to determine the safety need that potentially should be
addressed, e.g., which aspects of performance are in need of
regulation, what would be reasonable, practicable, or appropriate for
regulation, or the minimum thresholds for performance, much less how to
regulate such performance. Likewise, there are no vehicles equipped
with mature ADS that can be purchased by the Agency and tested to
validate the effectiveness of a contemplated standard in addressing the
safety needs of those vehicles.
    NHTSA has no desire to issue regulations that would needlessly
prevent the deployment of any ADS-equipped vehicle, as this could
inhibit the development of a promising technology that has the
potential to result in an unprecedented increase in safety. Any
regulatory approach must have well-founded supporting data indicating
safety needs. An ill-conceived standard may fail to meet the need for
motor vehicle safety and needlessly stifle innovation. Worse yet,
issuing premature regulations could even increase safety risk with
unintended consequences. Pursuing a ``precautionary'' FMVSS may, in
fact, be prohibited by the Safety Act itself, as sufficient information
does not yet exist to establish a standard that is practicable, meets
the need for motor vehicle safety, and can be stated in objective
terms.
    It is not too soon, however, for the Agency, with input from
stakeholders, to begin identifying and developing the elements of a
framework that meets the need for motor vehicle safety and assesses the
degree of success in manufacturers' efforts to ensure safety, while
also providing sufficient flexibility for new and more effective safety
innovations. In addition, NHTSA seeks to explore the adoption of
alternative or complementary mechanisms for implementing potential
engineering and process measures, as described below, to manage risks
and facilitate agency safety oversight.
    NHTSA seeks to develop a safety framework of standards and/or
guidance that manufacturers of ADS would (or, in the case of guidance,
could) follow to evaluate and demonstrate the safety of their new
systems, as produced and, at least in some cases, throughout the
lifetime of those systems. The framework would rest on the elements
described below in section III of this document.
    In addition, the Agency seeks to identify the best administrative
mechanisms for establishing and implementing engineering and process
measures and facilitating agency safety oversight. Potential mechanisms
are described in section IV of this document.

III. Safety Framework--Core Elements, Potential Approaches, and Current
Activities

    Safety assurance generally refers to the broad array of proactive
approaches a company can take proactively to identify and manage
potential safety risks associated with a system, such as the ADS of a
vehicle. Safety assurance, as contemplated in many of the documents
discussed in this section, is typically a process controlled and
conducted by the manufacturer that is designing a vehicle and
certifying that vehicle's compliance. Many of these process and
engineering measures are used by manufacturers in the development of
their products, and NHTSA intends to explore how the Agency might
harness these same processes in the development of a new regulatory or
sub-regulatory approach to evaluate the safety of ADS.
    The Department's guidance documents on vehicles equipped with ADS,
ADS 2.0 \23\ and Preparing for the Future of Transportation: Automated
Vehicles 3.0,\24\ generally describe these aspects of safety assurance
and how the Department envisions its role in safety risk management and
oversight during the development and deployment of ADS.
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    \23\ Pages 5-16. Available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf.
    \24\ See table on page 50. Available at https://www.transportation.gov/av/3.

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    This section elaborates on the core elements of ADS safety
performance and the documents behind the various elements of the safety
framework for ADS that NHTSA is currently considering. This section
also describes some of the many private and public activities related
to evaluating ADS safety performance.

A. Engineering Measures--Core Elements of ADS Safety Performance

    Engineering measures are those aspects that can be readily
determined through the testing of a finished motor vehicle or system
and establish the level of safety performance. Engineering measures
could be used to assess safety performance of the ADS, such as
successful crash avoidance (i.e., whether the ADS-equipped vehicle is
capable of completing certain maneuvers without loss of control), but
how exactly to design these measures is highly complicated. While a
mature ADS may avoid many of the human driver errors and poor choices
that lead to the majority of crashes today, an ADS may still find
itself in crash-imminent scenarios that may warrant emergency
maneuvers. Successful crash avoidance would depend on a vehicle's
mechanical abilities (e.g., abilities to stop quickly and to maintain
or regain directional stability and control). ADS-equipped vehicles,
though, are unique in that the vehicle's system must also be able to
perform appropriately the following safety relevant functions that are
inherent to the adequate functionality of an ADS-equipped vehicle:
     Sensing;
     Perception;
     Planning; and
     Control.
1. Core ADS Safety Functions
    ``Sensing'' refers to the ability of the ADS to receive adequate
information from the vehicle's internal and external environment
through connected sensors. Sensors on an ADS-equipped vehicle might
include cameras, radar, LiDAR, Global Positioning Satellite (GPS),
vehicle-to-vehicle (V2V) and/or vehicle-to-everything (V2X) devices,
among other technologies. Sensing also involves scanning the driving
environment with emphasis on the direction of travel in which the ADS
intends to head. The sensing functionality serves as the ``eyes'' of
the ADS.
    ``Perception'' refers to the ability of an ADS to interpret
information about its environment obtained through its sensors. This
involves an ADS determining the location of the vehicle in relation to
the driving environment and its ODD, including whether it is operating
within any geolocational limitations in the ODD. Perception includes
detection and identification of relevant static features and objects
(e.g., road edges, lane markings, and traffic signs) and dynamic
objects (e.g., vehicles, cyclists, and pedestrians) detected by sensors
within proximity of the vehicle. Through perception, the ADS is
provided with information necessary to predict the future behavior
(e.g., speed and path) of relevant static and dynamic objects (i.e.,
those whose speed and path may create the risk of a collision with the
vehicle). Thus, while sensing serves as the ``eyes'' of the ADS,
perception performs the associated cognitive recognition of information
detected through the sensor's ``eyes.'' Perception provides necessary
interpreted information to the system so that it can conduct other key
functions for successful completion of the driving task.
    ``Planning'' refers to the ability of an ADS to establish and
navigate the route it will take on the way to its intended destination.
The planning function of an ADS builds from the sensing and perception
functions by using the information collected through sensing and
interpreted through perception, and predicts the future state of static
and dynamic objects to create a path that mitigates crash risks,
follows rules of the road,\25\ and safely reaches its intended
destination. If the perception function is akin to the part of the
brain of an ADS responsible for cognitive interpretation, the planning
function is equivalent to that part of the brain of the ADS responsible
for decision-making.
---------------------------------------------------------------------------

    \25\ NHTSA notes that, while compliance with many rules of the
road can be readily and objectively determined, compliance with
others cannot. The rule to obey posted speed limits is an example of
the former. If a vehicle has mapped or can read posted speed limit
signs, it can readily compare its speed with the posted speed and
modulate its speed accordingly to avoid exceeding the limit.
However, achieving compliance with situational or judgmental rules,
such as those prohibiting driving too fast for conditions or driving
recklessly, is much less readily determinable by a vehicle. See.,
e.g., Formalising and Monitoring Traffic Rules for Autonomous
Vehicles in Isabelle/HOL, Albert Rizaldi, Jonas Keinholz, Monika
Huber, Jochen Feldle, Fabian Immler, Matthias Althoff, Eric
Hilgendorf, and Tobias Nipkow. https://www21.in.tum.de/~nipkow/pubs/
ifm17.pdf. Substantial compliance by a vehicle with the rule against
driving recklessly might be indirectly achievable through
programming the vehicle to drive defensively. One aspect of that
programming would be to ensure that the vehicle always maintains a
safe driving distance between itself and the vehicle immediately
ahead, including any vehicle that cuts into the vehicle's lane. This
notion of a safe space could also be made to vary according to
whether the vehicle detects conditions such as darkness, rain, or
loss of traction. See., e.g., On a Formal Model of Safe and Scalable
Self-driving Cars, Shai Shalev-Shwartz, Shaked Shammah, Amnon
Shashua, Mobileye, 2017. https://arxiv.org/pdf/1708.06374.pdf. The
amount of space needed by the vehicle would vary according to the
vehicle's speed.
---------------------------------------------------------------------------

    Finally, the ``control'' function of an ADS refers to the ability
of the system to execute the driving functions necessary to carry out
the continuously updated driving plan. Control includes implementing
the driving plan by delivering appropriate control inputs--such as
steering, propulsion, and braking--to follow the planned path while
adjusting the plan when and as necessary based on the continuous
acquisition and processing of new data concerning the state of the
vehicle and surrounding environment. The control function, carried out
through actuators and their associated control systems that facilitate
execution of the driving plan, are analogous to the ``arms'' and
``legs'' of the ADS in driving the vehicle.
    NHTSA requests comment on these four core functions, including
whether commenters agree that these are the core functions, views on
NHTSA's description of these functions, and whether and how NHTSA
should prioritize its research as it develops a safety framework.
2. Other Safety Functions
    While the four functions described above are necessary for an ADS,
they are not necessarily sufficient to ensure ADS safety, which will
also depend on a wide array of other functions and capabilities of the
system and how that system interacts with the humans both inside and
surrounding the ADS-equipped vehicle.
    For example, one safety-related aspect not encompassed within the
four functions would be the vehicle's ability to communicate with
vehicle occupants \26\ and other vehicles and people in the driving
environment, especially vulnerable road users.\27\ The human-machine
interaction is expected to have an impact not only on the operational
safety of an ADS-equipped vehicle, but also on the public acceptance of
such systems. ADS capability to detect the malfunction of its own
system or other systems in the

vehicle accurately and reliably, while also ensuring safe transitions
between operational modes developed to respond to any detected issues
or malfunctions (e.g., fail safe or limp home modes), is another
important consideration that could impact expected performance by an
ADS.
---------------------------------------------------------------------------

    \26\ For instance, if a vehicle stops, passengers have in
interest in knowing the vehicle's status. Did it stop because it
reached its destination, to avoid an obstacle, or because of a
malfunction? Should passengers remain in the vehicle or is it safe
to exit?
    \27\ A driver's eye contact, hand gestures, and even his/her
mere presence means something to others outside the vehicle. An
empty vehicle, especially an electric ADS-equipped vehicle without
traditional manual driving controls, may appear to be parked and in
the off position when in fact it is ready to move. Someone
approaching the vehicle (passenger, law enforcement, rescuers, tow
truck operators, etc.) has an interest in knowing whether it is
about to move and how to safely interact with the vehicle.
---------------------------------------------------------------------------

    Other aspects that could impact the ability of an ADS to carry out
its intended plans in a safe and reliable manner include: (1)
Identifying reduced system performance and/or ODD in the presence of
failure; (2) operating in a degraded mode within reduced system
constraints; \28\ (3) performing the essential task of transporting
occupants or goods from starting point to the chosen destination; (4)
recognizing and reacting appropriately to communications from first
responders, including fire, EMS, and law enforcement; \29\ (5)
receiving, loading, and following over-the-air software updates; \30\
(6) performing system maintenance and calibration; (7) addressing
safety-related cybersecurity risks; and (8) system redundancies. NHTSA
notes that its authorities under the Safety Act are limited to motor
vehicle safety and, thus, do not authorize the Agency to regulate areas
such as general privacy and cybersecurity unrelated to safety.\31\ That
said, NHTSA will analyze relevant aspects of these issues during the
rulemaking process to the extent required under the Safety Act and when
otherwise required by applicable laws, such as the E-Government Act of
2002.
---------------------------------------------------------------------------

    \28\ See Matthew Wood et al., Safety First for Automated Driving
(2019), pp. 37-46, available at https://www.aptiv.com/docs/default-source/white-papers/safety-first-for-automated-driving-aptiv-white-paper.pdf. The above listing omits ``ensure controllability for the
vehicle operator'' since a vehicle without traditional manual
driving controls would not have a human operator.
    \29\ In an emergency or unusual situation, a vehicle should be
able to respond/react to orders or requests from outside its own ADS
perceive/plan/execute process. This could be law enforcement,
pedestrians, other drivers, or passengers.
    \30\ Prior to transmitting any software update, care should be
taken to evaluate the safety of the updates and the functions they
enable or control not only in isolation, but also in combination
with existing software and hardware and the functions they enable or
control.
    \31\ The Federal Trade Commission is the Federal agency that
primarily oversees privacy policy and enforcement, including
privacy-related cybersecurity matter. See https://www.ftc.gov/news-events/media-resources/protecting-consumer-privacy-security.
---------------------------------------------------------------------------

    NHTSA requests comment on which of these aspects the Agency should
prioritize as it continues the research necessary to develop a safety
framework. NHTSA also seeks comment on whether it has an appropriate
role to play with any or all of these elements outside of research. If
so, which element(s)? For each such element, should NHTSA's role be
regulatory or sub-regulatory, and in what manner?
3. Federal Engineering Measure Development Efforts
    NHTSA, as part of the Department's broader efforts, has begun the
research to explore potential ways the Agency can assess the safety of
ADS. As described in AV 4.0, NHTSA maintains a comprehensive ADS
research program evaluating and researching a wide array of aspects
related to ADS performance.\32\ One of NHTSA's key research tracks
focuses on ADS safety performance, and seeks to identify the methods,
metrics, and tools to assess how well the ADS-equipped vehicle performs
both normal driving tasks as well crash avoidance capabilities. Such
assessments include system performance and behavior relative to the
system's stated ODD and object and event detection and response (OEDR)
capabilities, as well as fail-safe capabilities if/when it is
confronted with conditions outside its ODD. A second high-level
research focus is on functional safety and ADS subsystem performance. A
third research area relevant to this document relates to the
cybersecurity of vehicles and systems, including ADS. Finally, NHTSA is
also researching human factors issues that may accompany vehicles
equipped with ADS.
---------------------------------------------------------------------------

    \32\ https://www.transportation.gov/av/4.
---------------------------------------------------------------------------

    One key example of NHTSA's efforts to develop safety performance
models and metrics is the Instantaneous Safety Metric (ISM)--a research
document published in 2017.\33\ The ISM calculates physically possible
trajectories that a subject vehicle and other roadway users in the
surrounding traffic could take given a set of possible actions (e.g.,
steering wheel angles, brake/throttle) within a preset, finite period
of time in the future and calculates which trajectory combinations
could result in a potential multi-actor crash. A metric determined by
the number and/or proportion of trajectories (and severity/probability
of the action that leads to that trajectory) that may lead to a crash
could serve as a proxy for the estimated safety risk associated with
the given snapshot of the driving state.
---------------------------------------------------------------------------

    \33\ ``A Novel Method to Evaluate the Safety of Highly Automated
Vehicles'' Joshua L. Every, Frank Barickman, John Martin Sughosh,
Rao Scott Schnelle, Bowen Weng, Paper Number 17-0076; 25th
International Technical Conference on the Enhanced Safety of
Vehicles (ESV), available at http://indexsmart.mirasmart.com/25esv/PDFfiles/25ESV000076.pdf.
---------------------------------------------------------------------------

    An updated approach, referred to as the Model Predictive
Instantaneous Safety Metric (MPrISM), builds upon the ISM concept and
modifies its assessment method.\34\ MPrISM considers the subject
vehicle's range of fully controllable actions and calculates crash
implications under the scenario of best response choices by the subject
vehicle and worst choices by other actors in the scene.
---------------------------------------------------------------------------

    \34\ ``Model Predictive Instantaneous Safety Metric for
Evaluation of Automated Driving Systems''. Bowen Weng, Sughosh J.
Rao, Eeshan Deosthale, Scott Schnelle, Frank Barickman, available
at: https://arxiv.org/pdf/2005.09999v1.
---------------------------------------------------------------------------

    One of the benefits of ISM and MPrISM is their relatable logical
reasoning and straight-forward analytical construction. However, ISM is
not without its challenges in administering in real-world applications.
One of those challenges is the significant computational complexity
required for effective utilization. MPrISM attempts to address this
computational complexity and can be run using real time data at
reasonable processing rates. Through new metric development efforts
such as MPrISM, NHTSA will continue researching ways to reduce
complexity while also evaluating private sector approaches with a goal
of facilitating the advancement of candidate safety performance models
and metrics.
4. Other Notable Efforts Under Consideration as Engineering Measures
    Various companies and organizations have begun efforts to develop a
framework or at least portions of one. For example, in 2018, RAND
Corporation issued a report proposing a partial framework for measuring
safety in ADS-equipped vehicles.\35\ In developing that framework, RAND
considered how to define ADS safety, how to measure ADS safety, and how
to communicate what is learned or understood about ADS. The RAND report
purports to present a framework to discuss how safety can be measured
in a technology- and company-neutral way.
---------------------------------------------------------------------------

    \35\ Laura Fraade-Blanar, Marjory S. Blumenthal, James M.
Anderson, Nidhi Kalra, Measuring Automated Vehicle Safety--Forging a
Framework, Rand, 2018, available at https://www.rand.org/content/dam/rand/pubs/research_reports/RR2600/RR2662/RAND_RR2662.pdf.
---------------------------------------------------------------------------

    Another effort is led by NVIDIA, which published a document
proposing a framework called the Safety Force Field \36\ that is
articulated as a

computational method to assess through simulation whether an ADS is
monitoring its surrounding environment successfully and not taking
unacceptable actions. The stated goal behind the Safety Force Field is
avoiding crashes, and it seeks to accomplish this through setting a
driving policy that analyzes the surrounding environment and predicts
actions by other road users. Based upon this analysis, the system would
then seek to determine potential actions that avoid creating or
contributing to unsafe conditions that could lead to a crash.
---------------------------------------------------------------------------

    \36\ David Nist[eacute]r, Hon-Leung Lee, Julia Ng, and Yizhou
Wang, An Introduction to the Safety Force Field, Nvidia. Available
at https://www.nvidia.com/content/dam/en-zz/Solutions/self-driving-cars/safety-force-field/an-introduction-to-the-safety-force-field-updated.pdf. See also David Nist[eacute]r, Hon-Leung Lee, Julia Ng,
and Yizhou Wang, Safety Force Field, Nvidia. Available at https://www.nvidia.com/content/dam/en-zz/Solutions/self-driving-cars/safety-force-field/the-safety-force-field.pdf.
---------------------------------------------------------------------------

    In early July 2019, 11 companies,\37\ collectively referred to as
``Safety First for Automated Driving,'' released a paper describing
safety by design, and verification and validation (V&V) methods for
ADS.\38\ This paper states that it aims to address L3 and higher levels
of automation, and can serve as a useful starting point for examining
V&V methods appropriate for ADS. To guide safety efforts, the paper
identifies principles (12 in all) towards addressing safe operation;
safety layer; ODD; behavior in traffic; user responsibility; vehicle-
initiated handover; driver-initiated handover; effects of automation;
safety assessment; data recording; security; and passive safety. These
principles are expressed to be relevant to ADS, and most of them,
except those relating to handover to a human operator, are indicated to
be relevant to L4 and above.
---------------------------------------------------------------------------

    \37\ The 11 companies that comprise Safety First for Automated
Driving are: Audi, BMW, Aptiv, Baidu, Continental, Daimler, Fiat
Chrysler Automobiles, Here, Infineon, Intel and Volkswagen.
    \38\ ``Safety First for Automated Driving,'' available at
https://newsroom.intel.com/wp-content/uploads/sites/11/2019/07/Intel-Safety-First-for-Automated-Driving.pdf.
---------------------------------------------------------------------------

    Finally, several other companies and organizations have published
or are developing either documents to guide the safe testing and
deployment of ADS or technical approaches to programming ADS in order
to reduce the likelihood of facing crash-imminent situations. For
example, Intel's Mobileye published a document proposing a framework
called Responsibility Sensitive Safety \39\ (RSS), intended to address
issues with multi-agent safety (defined by them as safe operation and
interaction with multiple independent road users in a given
environment). RSS is a mathematical model for multi-agent safety that
incorporates common-sense rules of driving while interacting with other
road users in a way that minimizes the chance of causing a crash, all
while operating within normal behavioral expectations. The method is
constructed with respect to ``right-of-way'' rules, occluded objects
avoidance, and safe distance maintenance, both longitudinally and
laterally. Mobileye also claims that special traffic conditions are
covered in the discussion including intersection with traffic lights,
unstructured roads, and collisions involving pedestrians (or other road
users).\40\
---------------------------------------------------------------------------

    \39\ Shai Shalev-Shwartz, Shaked Shammah, and Amnon Shashua, On
a Formal Model of Safe and Scalable Self-driving Cars, Mobileye,
2017. Summary available at https://newsroom.intel.com/newsroom/wp-content/uploads/sites/11/2017/10/autonomous-vehicle-safety-strategy.pdf and https://newsroom.intel.com/editorials/paving-way-toward-safer-roads-all/#gs.8qhmve. Full paper available at https://arxiv.org/pdf/1708.06374.pdf.
    \40\ Mobileye, Implementing the RSS Model on NHTSA Pre-Crash
Scenarios, p. 3. Available at https://www.mobileye.com/responsibility-sensitive-safety/rss_on_nhtsa.pdf.
---------------------------------------------------------------------------

    NHTSA is paying close attention to the efforts of other
organizations to develop documents related to ADS safety that might be
useful from a Federal regulatory perspective. While this document
describes some of those efforts, it does not include all. NHTSA is also
considering how it might harness process measures as part of a safety
framework.

B. Process Measures--Safety Risk Minimization in the Design,
Development, and Refinement of ADS

    Vehicle process measures help an organization manage and minimize
safety risk by identifying and mitigating sources of risk during the
design, development, and refinement of new motor vehicles and motor
vehicle equipment. Unlike engineering measures, process measures
address safety issues that cannot be efficiently or thoroughly
addressed through the FMVSS approach to testing, since process
standards help to ensure reliability and robustness of designs over the
life of the vehicle, and in ``edge'' cases--both of which are difficult
or impossible to verify through one-time testing a finished vehicle.
Careful adherence to process standards can enhance the safety of
finished motor vehicles substantially.\41\ While some of the standards
described below are not specific to ADS, the principles underlying such
standards can prove useful in ADS development.
---------------------------------------------------------------------------

    \41\ Transportation Research Board Special Report 308, The
Safety Promise and Challenge of Automotive Electronics: Insights
from Unintended Acceleration, 2012. The Board is part of the
National Research Council, which is, in turn, part of the National
Academies of Sciences, Engineering, and Medicine. At pages 87-88,
this report describes the role that process measures could play in
meeting the challenges presented by electronic systems and their
``hardware components'' and ``software components.'' The report is
available on a number of online sites, including http://onlinepubs.trb.org/onlinepubs/sr/sr308.pdf and https://www.nap.edu/catalog/13342/trb-special-report-308-the-safety-challenge-and-promise-of-automotive-electronics and http://www.omg.org/hot-topics/documents/Safety-Promise-and-Challenge-of-Automotive-Electronics-TRB-2012.pdf.
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1. Functional Safety
    ISO 26262 describes a documentation of a process for the evaluation
of functional safety \42\ to assist in the development of safety-
related electrical and/or electronic (E/E) systems.\43\ This framework
is intended to be used by manufacturers to integrate functional safety
concepts into a company-specific development framework. Some
requirements have a clear technical focus to implement functional
safety into a product; others address the development process itself
and can therefore be seen as process requirements in order to
demonstrate an organization's capability with respect to functional
safety.
---------------------------------------------------------------------------

    \42\ Functional safety is the absence of risk caused by a system
malfunction typically involving an electronic control system.
    \43\ See https://www.iso.org/standard/68383.html.
---------------------------------------------------------------------------

    ISO 26262 addresses identified, unreasonable safety risks arising
from electrical and electronic failures. The framework is intended to
be applied to safety-related systems that include one or more E/E
systems that are installed in production road vehicles, excluding
mopeds. ISO 26262 seeks to avoid failures associated with electronics
systems--including those related to software programming, intermittent
electronic hardware faults, and electromagnetic disturbances--and
mitigate the impact of potential equipment faults during operation.\44\
In addition to addressing fault conditions, it contains hazard analysis
and risk assessment provisions, design, verification and validation
(V&V) requirements, and safety management guidance.
---------------------------------------------------------------------------

    \44\ Van Eikema Hommes, Q.D. (2016, June). Assessment of safety
standards for automotive electronic control systems. (Report No. DOT
HS 812 285). Washington, DC: National Highway Traffic Safety
Administration, available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/812285_electronicsreliabilityreport.pdf.
---------------------------------------------------------------------------

    ISO 26262 seeks to ensure systems have the capability to mitigate
failure risk sufficiently for identified hazards. The needed amount of
mitigation depends upon the severity of a potential loss event,
operational exposure to hazards, and human driver controllability of
the system when failure occurs. These factors combine into an
Automotive Safety Integrity Level (ASIL) per a predetermined risk

table. The assigned ASIL for a function determines which technical and
process mitigations should be applied, including specified design and
analysis tasks that must be performed.\45\
---------------------------------------------------------------------------

    \45\ Id.
---------------------------------------------------------------------------

2. Safety of the Intended Functionality
    The safety of ADS is also linked to other factors such as
conceivable human misuse of the function, performance limitations of
sensors or systems, and unanticipated changes in the vehicle's
environment.\46\
---------------------------------------------------------------------------

    \46\ Peters Els, Rethinking Autonomous Vehicle Functional Safety
Standards: An Analysis of SOTIF and ISO 26262, March 25, 2019,
available at https://www.automotive-iq.com/autonomous-drive/articles/rethinking-autonomous-vehicle-functional-safety-standards-an-analysis-of-sotif-and-iso-26262.
---------------------------------------------------------------------------

    Safety of the Intended Functionality (SOTIF) attempts to prevent
insufficiencies of the intended functionality or reasonably foreseeable
misuse by persons. ISO 21448 is a safety standard for driver assistance
functions that could fail to operate properly even if no equipment
fault is present. SOTIF does not apply to faults covered by the ISO
26262 series or to hazards directly caused by the system technology
(e.g., eye damage from a laser sensor). Rather, SOTIF works in tandem
with ISO 26262 to help a manufacturer assess and mitigate a variety of
risks during the development process, with ISO 26262 focusing on
mitigating failure risk and ISO 21448 mitigating foreseeable system
misuse.
    ISO 21448 is intended to be applied to intended functionality where
proper situational awareness is critical to safety, and where that
situational awareness is derived from complex sensors and processing
algorithms; especially emergency intervention systems (e.g., active
safety braking systems) and Advanced Driver Assistance Systems (ADAS)
with SAE driving automation Levels 1 and 2 on the SAE standard J3016
automation scales. Per SAE International, the standard can be
considered for higher levels of automation, though additional measures
might be necessary.\47\
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    \47\ See https://www.iso.org/standard/70939.html.
---------------------------------------------------------------------------

    ISO 21448 primarily considers mitigating risks due to unexpected
operating conditions (the intended function might not always work in
such conditions due to limitations of sensors and algorithms) and gaps
in requirements (lack of complete description about the actual intended
function). Highlights of this standard include covering:
     Insufficient situational awareness;
     Foreseeable misuse and human-machine interaction issues;
     Issues arising from operational environment (weather,
infrastructure, etc.);
     Identifying and filling requirement gaps (removing
``unknowns''); and
     Enumerating operational scenarios.\48\
---------------------------------------------------------------------------

    \48\ Philip Koopman, et al, A Safety Standard Approach for Fully
Autonomous Vehicles.
---------------------------------------------------------------------------

3. UL 4600
    UL has developed ``UL 4600: Standard for Safety for the Evaluation
of Autonomous Products,'' a draft voluntary industry standard that
states to take a safety case approach to ensuring the safety of
ADS.\49\ The published safety case approach includes three primary
elements: Goals, argumentation, and evidence; each of which is stated
to support the previous element to build an overarching safety case.
The expressed goals are stated to be the same as ADS-related safety
goals that an organization would be trying to achieve. The
argumentation is claimed to describe the organization's analysis for
why it thinks the system has met that goal. Finally, evidence is what
the organization would consider to be sufficient to show that its
arguments are reasonable and support the organization's assertion that
it has met its safety goal.\50\ Preliminary versions of the document
were released in 2019, and UL released its most recent version of UL
4600 on April 1, 2020.\51\ Like ISO 26262 and 21448, UL 4600 is a
process-focused standard that is intended for use by the manufacturers
in developing ADS. However, unlike those ISO standards, UL 4600 was
developed primarily for ADS.\52\
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    \49\ See https://edge-case-research.com/ul4600/.
    \50\ Philip Koopman, An Overview of Draft UL 4600: ``Standard
for Safety for the Evaluation of Autonomous Products,'' June 20,
2019, available at https://medium.com/@pr_97195/an-overview-of-draft-ul-4600-standard-for-safety-for-the-evaluation-of-autonomous-products-a50083762591.
    \51\ See https://www.shopulstandards.com/ProductDetail.aspx?productid=UL4600.
    \52\ See https://www.eetimes.com/safe-autonomy-ul-4600-and-how-it-grew/#.
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    With the descriptions of Functional Safety, SOTIF, and UL 4600 as
background, NHTSA is considering how it might make use of these process
standards in the context of developing a new framework concerning ADS,
based either in regulation or providing guidance. Traditional FMVSS may
not be suitable for addressing certain critical safety issues relating
to aspects of the core safety functions of perception, planning, and
control. NHTSA requests comment on the specific ways in which
Functional Safety, SOTIF, and/or UL 4600 could be adopted, either
modified or as-is, into a mechanism that NHTSA could use to consider
the minimum performance of an ADS or a minimum risk threshold an ADS
must meet within the context of Vehicle Safety Act requirements.

IV. Safety Framework--Administrative Mechanisms for Implementation and
Oversight

    This section describes a variety of mechanisms that could be used,
singularly or in combination, to implement the elements of a safety
framework.\53\ The possibility that multiple mechanisms might
ultimately be used does not mean that they could or would need to be
implemented in the same timeframe. While some mechanisms could be
implemented in the near term, others would need to be developed through
additional research and then validated before they could be
implemented. Thus, the mechanisms could be adopted and implemented, if
and when needed, in a prioritized and phased manner.\54\ Implementation
of some types of mechanisms might rarely be necessary, while others may
be temporary until different mechanisms would take their place.
---------------------------------------------------------------------------

    \53\ The Agency notes that while some of the mechanisms
described in this document could be implemented through rulemaking
pursuant to the Vehicle Safety Act, others are more suited to take
the form of guidance.
    \54\ A phased approach is how the Agency is also modernizing the
FMVSS for ADS-equipped vehicles without traditional manual controls,
and may be the more expedient way to make progress while continuing
necessary research and other work in the background.
---------------------------------------------------------------------------

    The array of available mechanisms roughly falls into either of two
categories: (1) Voluntary mechanisms for monitoring, influencing and/or
encouraging greater care; and (2) regulatory mechanisms. The former
group includes voluntary disclosure, the New Car Assessment Program,
and guidance. The latter group includes FMVSS and any other compulsory
requirements.

A. Voluntary Mechanisms

    NHTSA can establish various mechanisms to gather or generate
information about:
     How developers are analyzing the safety of their ADS;
     how developers are identifying potential safety risks of
those systems; and
     what methods developers are choosing to mitigate those
risks.
    This information could: (1) Enable the Agency to take proactive
actions to encourage the development of innovative technologies in a
manner that allows them to reach their full safety potential; (2) help
the Agency

avoid taking action that hampers safety innovation or otherwise
adversely affect safety; and (3) support the Agency's existing programs
by helping the Agency become more responsive to new technologies. To
the extent ADS developers make such information available to the Agency
and the public, competing developers may be encouraged to place greater
emphasis on safety and improve transparency on their efforts in that
regard.
1. Safety Self-Assessment and Other Disclosure/Reporting
    Demonstrating the safety of ADS is critical for facilitating public
confidence and acceptance, which may lead to increased adoption of the
technology. Entities involved in the development and deployment of
automation technology have an important role in their responsibilities
for safety assurance of ADS-equipped vehicles and in providing
transparency about their systems are achieving safety.
    ADS 2.0 provided guidance to stakeholders regarding the safe
design, testing, and deployment of ADS. This document identified 12
safety elements that ADS developers should consider when developing and
testing their technologies.\55\ ADS 2.0 also introduced the concept of
a Voluntary Safety Self-Assessment (VSSA), which is intended to
encourage developers to demonstrate to the public that they are:
Considering the safety aspects of an ADS; communicating and
collaborating with the U.S. DOT; encouraging the self-establishment of
industry safety norms; and building public trust, acceptance, and
confidence through transparent testing and deployment of ADS.\56\
Entities were encouraged to demonstrate how they address the safety
elements contained in A Vision for Safety by publishing a VSSA on their
websites. NHTSA believes that VSSAs are an important tool for companies
to showcase their approach to safety without needing to reveal
proprietary intellectual property. The Agency hopes that VSSAs show the
public that how these companies are addressing safety and how safety
considerations are built into the design and manufacture of ADS-
equipped vehicles that are tested on public roadways. As of June 2020,
23 developers and automakers have published VSSAs, which represents a
significant portion of the industry.
---------------------------------------------------------------------------

    \55\ Id., pp. 5-15.
    \56\ Id., p. 16
---------------------------------------------------------------------------

    Another voluntary reporting mechanism aimed at transparency is
NHTSA's AV TEST Initiative, which involves both a series of events
throughout the country where NHTSA, State and local governments,
automakers, and ADS developers share information about activities. AV
TEST is also expected to result in a website for companies to share
information with the public about their vehicles, including details of
on-road testing.
    One type of administrative mechanism under consideration is to use
guidance to encourage the development of a safety case by
manufacturers. As used in this document, a safety case is ``a
structured argument, supported by a body of evidence that provides a
compelling, comprehensible, and valid case that a system is safe for a
given application in a given operating environment.'' \57\ For NHTSA's
purposes, ``valid'' as used in this context means ``verifiable.'' Such
an administrative mechanism might be implementable more quickly than
other mechanisms and could allow vehicle and equipment manufacturers
flexibility in documenting the competence of their ADS in performing
sensing, perception, planning, and control of its intended functions.
It may be possible, within the limits of administrative feasibility, to
tailor some aspects of these demonstrations to a vehicle's design
purpose and intended scope of operation. Another, more extensive, means
of increasing transparency of how a company developed its ADS would be
for the developer to disclose (e.g., to NHTSA and/or the public) some
or all its safety case. This disclosure would provide the results of
applying the company's own stated performance metrics, metric
thresholds, and test procedures, and how those results justify its
belief that its vehicle is functionally and operationally capable of
performing each of the core elements of ADS safety performance.\58\
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    \57\ As used in this document, the term ``safety case'' has the
same meaning as that term is used by Philip Koopman, Aaron Kane, and
Jen Black in their paper, Credible Autonomy Safety Argumentation,
2019. The article is available at https://users.ece.cmu.edu/
~koopman/pubs/Koopman19_SSS_CredibleSafetyArgumentation .pdf. See
also Philip Koopman, ``How to keep self-driving cars safe when no
one is watching for dashboard warning lights,'' The Hill, June 30,
2018, available at https://thehill.com/opinion/technology/394945-how-to-keep-self-driving-cars-safe-when-no-one-is-watching-for-dashboard.
    \58\ See, e.g., Koopman, Philip, ``How to keep self-driving cars
safe when no one is watching for dashboard warning lights,'' June
30, 2018. Available at https://thehill.com/opinion/technology/394945-how-to-keep-self-driving-cars-safe-when-no-one-is-watching-for-dashboard. See also Bryant Walker Smith, Regulation and the Risk
of Inaction in Autonomous Driving: Technical Legal and Social
Aspects, at 571-587, (Markus Maurer, J. Christian Gerdes, Barbara
Lenz, and Hermann Winner, editors, 2016), available at https://link.springer.com/content/pdf/10.1007%2F978-3-662-48847-8.pdf.
---------------------------------------------------------------------------

2. New Car Assessment Program (NCAP)
    Short of setting a safety standard, an ADS competency evaluation
could be added in NCAP. While an FMVSS obstacle-course performance
test, standing alone, would likely be inadequate to evaluate ADS
competence, such a test might form a useful foundation for consumer
information under the NCAP program. This evaluation could be developed
and used to measure the relative performance of an ADS in navigating a
variable environment (within established operational ranges) and
complex set of interactions with stimulus road users (e.g., dummy
vehicles, pedestrians, and cyclists) on a course, with note made of
variances in the manner in which the course was completed. All ADS-
equipped vehicles could be expected to avoid collisions (including
avoiding causing collisions), while adhering to a driving model that
minimizes the risks of getting into crash-imminent situations and
observing operational limitations, such as limits on rates of
acceleration and deceleration and limits on absolute speed.
Additionally, operational data relating to crash avoidance performance,
as well as ``nominal'' driving behaviors (e.g., lane-keeping ability),
could be collected during ``on-road driving'' and could be used to
contribute to an overall safety performance assessment method.
Relatedly, an NCAP program could provide comparative data on the
occupant protection afforded by ADS vehicles.
    The information NCAP provides empowers consumers to compare the
relative safety of new vehicles and to make informed vehicle-purchasing
decisions. This information has encouraged automakers to compete based
upon improving safety--encouraging safety advancements and swift
adoption of performance improvements that improve the safety of motor
vehicles. For example, with the inclusion of static and dynamic
rollover prevention tests into the NCAP program in 2001 and 2003, NHTSA
encouraged the advancement and further deployment of safety improving
technologies--notably electronic stability control--to prevent rollover
crashes. This deployment took place more than 10 years before a FMVSS
for electronic stability control went into effect.\59\ In part because
of the market demand triggered by that encouragement, 29 percent of MY
2006 vehicles already had ESC voluntarily

installed. NCAP's power to provide safety-relevant information to
consumers, thus driving consumer demand for safety improvements in the
market, could similarly be harnessed and applied to ADS performance.
---------------------------------------------------------------------------

    \59\ While the NPRM for the creation of FMVSS No. 126 was issued
in 2006, the new standard did not apply until MY 2012.
---------------------------------------------------------------------------

3. Operational Guidance
    At the current stage in the development of the technologies needed
for wide-scale deployment of ADS, the specific areas for which
regulatory intervention might be most needed remain uncertain and the
appropriate regulatory performance metrics and safety thresholds remain
unknown. The Department has therefore sought to enhance safety through
voluntary guidance, instead of mandatory requirements. The Agency is
requesting comment on whether developing further guidance on
engineering and process measures remains the most appropriate
approach.\60\
---------------------------------------------------------------------------

    \60\ This approach has been recognized by WP 29. See https://www.unece.org/fileadmin/DAM/trans/doc/2019/wp29/ECE-TRANS-WP29-2019-34-rev.1e.pdf. With respect to engineering measures, the development
of guidance is often based upon much of the same work that would
lead to the development of industry standards, i.e., the development
and validation of performance metrics, performance thresholds, and
test procedures.
---------------------------------------------------------------------------

    To ensure due process and appropriate consideration of views of
stakeholders and the general public in the development of guidance,
certain guidance documents are subject to public comment--in accordance
with Department of Transportation Regulations on Guidance Documents
\61\ and Executive Order 13891.\62\ That said, guidance documents, as
they simply recommend rather than require actions by regulated
entities, are more appropriate at this early stage in the development
of ADS and ADS-equipped vehicles, reserving mandatory requirements for
when the technology is sufficiently mature and actual safety needs have
been more clearly identified. Guidance documents also provide the
agency greater flexibility in making recommendations, as they do not
need to meet the strict requirements that FMVSS must meet and are
generally easier to adopt and modify than mandatory requirements issued
in a FMVSS. The Agency, therefore, would likely be able to develop and
update these guidance documents more quickly, and design them to be
more reflective of consensus industry standards and practices as they
continue to develop.
---------------------------------------------------------------------------

    \61\ 49 CFR 5.25, et seq.
    \62\ Executive Order 13891, ``Promoting the Rule of Law Through
Improved Agency Guidance Documents'' Oct. 9, 2019.
---------------------------------------------------------------------------

    Issuing guidance, working with States and developers to deepen
communications, identifying for manufacturers critical safety aspects
generally applicable to ADS, and exercising safety oversight using
NHTSA's existing broad enforcement authorities \63\ have, for the most
part, been NHTSA's approaches to the development of ADS thus far. NHTSA
expects that these will continue to be the Agency's approaches to ADS
for the foreseeable future while it conducts the research necessary to
develop meaningful performance tests and metrics and while it closely
monitors changes occurring in the private development of ADS and
business models that surround the technology.
---------------------------------------------------------------------------

    \63\ NHTSA has broad investigatory and enforcement authority
relating to motor vehicle safety. While NHTSA can order a recall for
FMVSS non-compliance, it can also order a recall when it learns of a
defect in the design, construction, or performance of a vehicle or
item of equipment that poses an unreasonable risk to motor vehicle
safety that increases the likelihood of a crash occurring or
increases the likelihood of injury or death should a crash occur. In
fact, the vast majority of recalls are issued for safety related
defects that having nothing to do with FMVSS.
---------------------------------------------------------------------------

B. Regulatory Mechanisms

    That said, the Agency believes that, at some point, regulation of
the ADS will likely be necessary and is exploring ways it could
appropriately regulate ADS, being mindful of the need to avoid creating
unnecessary barriers to innovation or unintended safety risks. As
discussed above, many stakeholders are already exploring a variety of
approaches to assessing ADS performance and measuring ADS safety. The
following explores what regulatory mechanisms the Agency is currently
using and how future approaches might be incorporated into the FMVSS,
either separately or together and in conjunction with non-regulatory
mechanisms.
1. Mandatory Reporting and/or Disclosure
    In addition to the voluntary reporting/disclosure activities
discussed in the previous section, NHTSA has also taken steps to
require the disclosure and reporting of certain information in the
context of exemptions. NHTSA recently conditioned the Agency's grant of
a petition for temporary exemption on a set of terms that include
mandatory reporting of information on the operation of the vehicles
equipped with ADS.\64\ The petition for exemption was from Nuro, Inc.
for a low-speed (25 mph maximum), electric-powered occupantless
delivery vehicle that will be operated by an ADS.\65\ In NHTSA's notice
granting the petition for exemption, the Agency stated: ``NHTSA has
determined that it is in the public interest to establish a number of
reporting and other terms of deployment of the vehicles that will apply
throughout the useful life of these vehicles--violation of which can
result in the termination of this exemption.'' \66\ The terms include
post-crash reporting, periodic reporting, cybersecurity, and other
general requirements.\67\
---------------------------------------------------------------------------

    \64\ 85 FR 7826 (Feb. 11, 2020), available at https://www.federalregister.gov/documents/2020/02/11/2020-02668/nuro-inc-grant-of-temporary-exemption-for-a-low-speed-vehicle-with-an-automated-driving-system.
    \65\ Id.
    \66\ Id., p. 7827.
    \67\ Id., p., 7840.
---------------------------------------------------------------------------

    NHTSA also maintains a process for the temporary importation of
noncompliant vehicles into the Unites States for research,
demonstration, testing, and other purposes.\68\ For entities other than
manufacturers of certified motor vehicles, approval of a temporary
exemption comes in the form of written permission from NHTSA that the
importer may import the noncompliant vehicle.\69\ When NHTSA began
receiving requests for exemptions to import ADS-equipped vehicles for
research and demonstration purposes, NHTSA determined that additional
requirements were necessary to exercise oversight and monitor the
safety of the exempt vehicles' operations. NHTSA may condition approval
for importation of a noncompliant vehicle on specific terms and
conditions.\70\ Similar to the terms that accompany a grant of a
petition for exemption, the terms that importers are required to meet
depend upon the information included in the petition, and are generally
established to mitigate risks. Many of the terms required of Nuro have
also been required for importers who have received permission to import
a non-compliant ADS-equipped vehicle. Some examples of additional terms
and conditions added to permission letters for vehicles equipped with
ADS include: requiring that the noncompliant vehicle be used only in
the ways described in the application; annual reporting on the status
of all vehicles granted temporary exemptions; disengagement reporting;
and reporting incidents of near misses, situations in which the trained
operator acted to avoid an imminent crash, deviations

from the prescribed route, and unexpected lane departures.
---------------------------------------------------------------------------

    \68\ 49 U.S.C. 30114; 49 CFR part 591.
    \69\ 49 U.S.C. 30114; 49 CFR part 591.
    \70\ 49 CFR 591.6(f)(2).
---------------------------------------------------------------------------

2. NHTSA's FMVSS Setting Authority
    NHTSA has broad jurisdiction over motor vehicle safety pursuant to
the Safety Act (49 U.S.C. Chapter 301), the purpose of which is ``to
reduce traffic accidents and deaths and injuries resulting from traffic
accidents.'' The Safety Act defines ``motor vehicle safety'' as
inclusive of both operational and nonoperational safety. Specifically,
```motor vehicle safety' means the performance of a motor vehicle or
motor vehicle equipment in a way that protects the public against
unreasonable risk of accidents occurring because of the design,
construction, or performance of a motor vehicle, and against
unreasonable risk of death or injury in an accident, and includes
nonoperational safety of a motor vehicle.'' \71\
---------------------------------------------------------------------------

    \71\ 49 U.S.C. 30102(a)(9).
---------------------------------------------------------------------------

    The Safety Act authorizes the issuance of FMVSS for motor vehicles
and motor vehicle equipment and the recall and remedy of motor vehicles
and equipment failing to comply with a FMVSS or containing a defect
that poses an unreasonable risk to safety. The FMVSS are intended to be
uniform national standards so that compliant vehicles can be sold
throughout the United States.\72\
---------------------------------------------------------------------------

    \72\ Truck Safety Equipment Institute vs. Kane, 466 F. Supp.
1242, 1250 (M.D.Pa.1979).
---------------------------------------------------------------------------

    Among the products that fall within the scope of this authority are
all vehicle systems and their parts and components. Modern computer-
controlled electronic systems, like object detection and identification
systems needed to protect vulnerable road users, automatic emergency
braking systems, and air bag systems, are composed of hardware and
software components, both of which are necessary to the functioning of
those systems. Without their software components, computer-controlled
electronic systems are merely non-functional assemblages of hardware
components, incapable of protecting anyone. NHTSA has used its
authority to specify how and when the hardware components of complex
electronic systems, such as advanced air bags and anti-lock braking
systems, must activate and perform. This performance-oriented approach
gives manufacturers freedom to develop the software components needed
to control the performance of each system's hardware components. NHTSA
has also repeatedly exercised its authority over software when the
software components of the computerized electronic systems of motor
vehicles have been determined to contain a safety defect and thus
become the subject of a recall campaign.\73\
---------------------------------------------------------------------------

    \73\ See Addendum B for a list of examples of software-related
recalls.
---------------------------------------------------------------------------

    The Safety Act defines ``motor vehicle safety standard'' as ``a
minimum standard for motor vehicle or motor vehicle equipment
performance.'' \74\ This definition contemplates that each FMVSS (1)
regulates one or more identified aspects of vehicle or equipment
performance, and (2) specifies a minimum threshold for each of those
aspects of performance (i.e., a required level of that aspect of
performance that regulated products must at least equal to protect
against unreasonable risk of crashes or unreasonable risk of death or
injury in a crash). Such a threshold serves as a clear separation of
compliant from noncompliant products. In the event of noncompliance,
the threshold also aids NHTSA in determining the nature and extent of
the needed remedy and in determining the seriousness of the
noncompliance, which, in turn, is relevant in determining the
appropriate amount of any civil penalty. Specifying minimum levels of
safety performance in a standard also enables the Agency to estimate
the benefits and the costs of complying with a standard and determine
what level of stringency maximizes net benefits, as contemplated by
Executive Order 12866 \75\ and Department of Transportation
regulations.\76\
---------------------------------------------------------------------------

    \74\ 49 U.S.C. 30102(a)(9) (emphasis added).
    \75\ Available at https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf.
    \76\ 49 CFR 5.5. This regulation requires the following when
developing or issuing regulations, including regulations to
establish FMVSS:
    (a) There should be no more regulations than necessary. In
considering whether to propose a new regulation, policy makers
should consider whether the specific problem to be addressed
requires agency action, whether existing rules (including standards
incorporated by reference) have created or contributed to the
problem and should be revised or eliminated, and whether any other
reasonable alternatives exist that obviate the need for a new
regulation.
    (b) All regulations must be supported by statutory authority and
consistent with the Constitution.
    (c) Where they rest on scientific, technical, economic, or other
specialized factual information, regulations should be supported by
the best available evidence and data.
    (d) Regulations should be written in plain English, should be
straightforward, and should be clear.
    (e) Regulations should be technologically neutral, and, to the
extent feasible, they should specify performance objectives, rather
than prescribing specific conduct that regulated entities must
adopt.
    (f) Regulations should be designed to minimize burdens and
reduce barriers to market entry whenever possible, consistent with
the effective promotion of safety. Where they impose burdens,
regulations should be narrowly tailored to address identified market
failures or specific statutory mandates.
    (g) Unless required by law or compelling safety need,
regulations should not be issued unless their benefits are expected
to exceed their costs. For each new significant regulation issued,
agencies must identify at least two existing regulatory burdens to
be revoked.
    (h) Once issued, regulations and other agency actions should be
reviewed periodically and revised to ensure that they continue to
meet the needs they were designed to address and remain cost-
effective and cost-justified.
    (i) Full public participation should be encouraged in rulemaking
actions, primarily through written comment and engagement in public
meetings. Public participation in the rulemaking process should be
conducted and documented, as appropriate, to ensure that the public
is given adequate knowledge of substantive information relied upon
in the rulemaking process.
    (j) The process for issuing a rule should be sensitive to the
economic impact of the rule; thus, the promulgation of rules that
are expected to impose greater economic costs should be accompanied
by additional procedural protections and avenues for public
participation.
---------------------------------------------------------------------------

    In addition, each FMVSS must be objective and practicable.\77\ The
Sixth Circuit has held that the FMVSS objectivity requirement means
that compliance with an FMVSS standard must be susceptible to objective
measurements, which are capable of repetition.\78\ Each FMVSS must also
be reasonable, practicable, and appropriate for each type of vehicle to
which it applies.\79\ In the interest of transparency, and as a matter
of due process, each FMVSS must also give reasonable notice of what
performance is required and how compliance will be determined.\80\
---------------------------------------------------------------------------

    \77\ 49 U.S.C. 30111(a).
    \78\ See Chrysler Corp. v. Dep't of Transp., 472 F.2d 659, 675-
76 (6th Cir. 1972) (citing House Report 1776, 89th Cong. 2d
Sess.1966, p. 16).
    \79\ 49 U.S.C. 30111(b)(3).
    \80\ See United States v. Chrysler Corp. 158 F.3d 1350, 1354
(D.C. Cir. 1972).
---------------------------------------------------------------------------

    NHTSA has broad authority to issue FMVSS. ``[T]he Agency is
empowered to issue safety standards which require improvements in
existing technology or which require the development of new technology,
and it is not limited to issuing standards based solely on devices
already fully developed.'' \81\ However, NHTSA has learned from
previous experiences that establishing FMVSS prior to technology
readiness can lead to adverse safety consequences. Motor vehicles are
extraordinarily complicated machines that are massive and move at very
high speeds. When setting a performance standard not appropriately
grounded in the capabilities of technologies employed to meet the
standard, unexpected consequences can result. For instance, one of the
foundational court decisions regarding FMVSS involved the Agency's

establishment of braking standards for air brake-equipped trucks,
tractor-trailers, and buses--mandating stopping distances far shorter
than achieved in large trucks that were built at the time.\82\ The
stopping distance requirements required the entire industry to design
completely new braking systems. The Agency was aware that the shorter
stopping distances would increase the likelihood of wheel lock-up, so
the standard also required that the stops be made without wheel lock-
up--which effectively (although not explicitly) required manufacturers
to develop and install antilock computers on each axle. These antilock
devices proved unreliable,\83\ and, combined with the more-powerful
newly designed braking systems, resulted in increased risk of loss of
control resulting from wheel lock-up. Further, the susceptibility of
early sensors to outside interferences resulted in circumstances where
some trucks lost the use of brakes entirely. In invalidating
requirements under the standard, the Court of Appeals for the Ninth
Circuit found that ``because of unforeseen problems in the development
of the new braking systems, the Standard was neither reasonable nor
practicable at the time it was put into effect.'' \84\ The Court also
explained that NHTSA must ``ascertain, with all reasonable probability,
that its safety regulations do not produce a more dangerous highway
environment than that which existed prior to governmental
intervention.'' \85\
---------------------------------------------------------------------------

    \81\ Chrysler Corp. v. Dep't of Transp., 472 F.2d 659, 673 (6th
Cir. 1972).
    \82\ Paccar, Inc. v. Nat'l Highway Traffic Safety Admin., 573
F.2d 632 (9th Cir. 1978)
    \83\ Failure rates well over 50% were reported. Id. at 642
    \84\ Id. at 640.
    \85\ Id. at 643.
---------------------------------------------------------------------------

    Given the rapidly evolving state of ADS technology, NHTSA is taking
care that its actions do not result in unforeseen problems in the
development or deployment of ADS. Establishing FMVSS prior to
technology readiness hampers safety-improving innovation by diverting
developmental resources toward meeting a specific standard. Such a
regulatory approach could unnecessarily result in the Agency
establishing metrics and standards without a complete understanding of
the technology or safety implications and result in unintended
consequences, including loss of potential benefits that could have been
attained absent government intervention, a false sense of security, or
even inadvertently creating additional risk by mandating an approach
whose effects had not been known because regulation halted the
technology at too early a stage in its development.
    NHTSA has typically used its FMVSS authority either to mandate the
installation of a proven technology by way of performance standards to
address a safety need and subject the technology to minimum performance
requirements, or to regulate voluntarily installed technology by
subjecting the technology to minimum performance safety requirements.
In most instances, when NHTSA has mandated the installation of a
technology by way of performance standards, it has not done so until
the technology is fully developed and mature, so that all buyers of new
vehicles have the protection of that technology. An example of this
practice is Electronic Stability Control (ESC). ESC development for
passenger cars began in the late 1980s, and three manufacturers
voluntarily installed the systems on some of their vehicles by
1995.\86\ After NHTSA evaluated real word data and realized the
beneficial effect of ESC in preventing crashes, NHTSA undertook a
rulemaking to establish FMVSS No. 126, ``Electronic stability control
systems for light vehicles.'' By the time a proposal was issued for
FMVSS No. 126, 29 percent of MY 2006 vehicles sold in the U.S. were
already voluntarily equipped with ESC.\87\ Given the profound benefits
of ESC, NHTSA's rulemaking impelled the expedited installation of ESC
in the vehicle fleet. While this has been a common practice, of
establishing performance standards and mandating that certain vehicles
be equipped with a system that meets those performance requirements, it
is too soon to tell if this will be the best path forward for ADS.
---------------------------------------------------------------------------

    \86\ http://knowhow.napaonline.com/electronic-stability-control-a-short-history/.
    \87\ Id.
---------------------------------------------------------------------------

    Furthermore, there are notable instances in which NHTSA has
regulated voluntarily installed technologies by simply establishing
minimum safety performance requirements, as opposed to mandating the
installation of a technology, include when the Agency anticipated the
introduction of electric and compressed natural gas vehicles and fuel
systems, and issued standards to guard against risks of electric shock
and explosion.
    Also, existing classes of vehicles (e.g., passenger cars, trucks,
buses, motorcycles, and low speed vehicles) subject to the existing
FMVSS are based largely on observable physical features (e.g., number
of designated seating positions) or objectively measurable
specifications (e.g., gross vehicle weight rating) or performance
(e.g., top speed).\88\ As a result, determining which class a vehicle
falls into involves a relatively simple, quick, and objective process.
    Developers of ADS are taking a variety of approaches to the
vehicles that utilize their systems. Some are testing their systems in
fully FMVSS-compliant vehicles, others are exploring alternative
vehicle designs that would not comply with some or even all of the
current FMVSS, and even others are simply developing the ADS without a
particular vehicle type in mind--something that could be retrofit into
an existing vehicle, or a system that could be sold to automakers.
NHTSA expects that existing vehicle classes will remain relevant for
many purposes. Yet, new classes of vehicles may emerge as companies
begin to consider all the possible uses and business models available
for their systems. The need to define any new class in the context of
the FMVSS has not been determined.
3. Applying the Established FMVSS Framework to ADS Safety Principles
    NHTSA believes that the critical relationship between the safety of
an ADS's design and the vehicle's decision-making system makes it
necessary to evaluate the safety of ADS performance considering
appropriate and well-defined ODD (for any system below Level 5). For
example, if an ADS is capable of only operating at speeds below 30
miles per hour (mph), it is reasonable and necessary to assess the
system at speeds below 30 mph. NHTSA might also consider whether it
would be appropriate to require that the vehicle be designed so that it
cannot operate automatically at speeds of 30 mph or more unless and
until it acquires the capability (e.g., through software updates) of
safely operating automatically above that speed. Similarly, if a
vehicle would become incapable of operating safely if one or more of
its sensors became non-functional, NHTSA might consider whether it
would be appropriate to require that the vehicle be designed so that it
can detect those problems and either cease to operate automatically in
a safe manner in those circumstances (in the case of a vehicle designed
to operate either manually or automatically) or operate automatically
in a reduced or ``limp home'' manner only.
    State and local authorities also play critical roles in roadway
safety. Through establishing and enforcing their rules of the road,
these authorities have traditionally controlled such operational
matters as the speed at which vehicles may be driven and the condition
of certain types of safety equipment, such

as headlamps and taillamps. In the future, it is reasonable to expect
that such authorities may establish new rules of the road to address
ADS-equipped vehicles specifically. NHTSA could require that ADS be
designed such that they must follow all applicable traffic laws in the
areas of operation, thereby supporting State and local efforts to
ensure their traffic laws are observed. That said, NHTSA expects that
the States and localities would enforce those rules if broken, just as
they would today.
4. Reforming How NHTSA Drafts New FMVSS To Keep Pace With Rapidly
Evolving Technology
    As the functions and capabilities of modern motor vehicles are
increasingly defined and controlled by software, vehicles will likely
continue to change and improve through software updates that occur
during the lifetime of the vehicle. Likewise, the more quickly vehicle
systems can change, the greater the risk that the current regulatory
requirements may unnecessarily interfere with innovation, and that the
slow pace of the regulatory process to address unnecessary barriers may
delay the introduction of new safety improvements.
    The nature and requirements of the rulemaking process may challenge
the Agency's efforts to amend existing FMVSS and develop, validate, and
establish new FMVSS quickly enough to enable the Agency to keep pace
with the expected rapid rate of technological change. Some aspects of
the process are inherent and, thus, unavoidable, such as the often
lengthy period needed for preparatory research to develop and validate
performance metrics and test procedures and for the rulemaking process
to propose, take and consider comment, and eventually adopt the metrics
and procedures.
    There are, however, other aspects of the process that are not only
amenable to reform, but that are also likely needed to change for
expedient application to future technologies. Some portions of the
existing FMVSS might be seen as overly specific, and insufficiently
technologically neutral. If a new generation of safety standards and
other safety regulations is determined to be needed for ADS, they might
be written, to the extent allowed by the law, so that they do not have
the effect of inadvertently locking future ADS into today's hardware
and software technologies. A new generation of performance requirements
and test procedures for ADS could be drafted with a greater eye to
enabling continuing technological innovation to ensure that the new
requirements do not become unintended obstacles to the use of new
technologies. In other words, the Agency should take care not to assume
that the specific technologies used in today's vehicles will be used in
future vehicle designs. Future standards--particularly those that
mandate vehicles be equipped with a certain technology--may be better
approached by focusing on objective vehicular functionality as opposed
to the performance of a specific discrete system. A new generation of
FMVSS should give the manufacturers of vehicles, sensors, software, and
other technologies needed for ADS sufficient flexibility to change and
improve without the need for frequent modifications to the regulations.
Such an approach may also benefit the safety of future vehicles through
more flexible standards that focus more on the safety outcome, rather
the performance of any specific technology.\89\
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    \89\ NHTSA has always sought to draft the FMVSS requirements
broadly enough to permit use of both current technologies and
possible future systems, but the rapid pace of development of ADS
and other advanced technologies makes this objective more critical
than ever.
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    What may be needed, then, is a new approach to structuring and
drafting standards that places greater reliance on more general, but
still objective, specifications of the types and required levels of
performance.\90\
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    \90\ This effort to initiate reform in the vehicle safety
program is at least comparable in scope to the effort launched by
the Agency in 2003 when it issued an ANPRM to reform the Automobile
Fuel Economy Standards Program, 68 FR 74908 (Dec. 29, 2003).
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5. Examples of Regulatory Approaches
    Below NHTSA provides some examples of potential regulatory
approaches that the Agency could consider including in a safety
framework. These examples are not intended to propose any particular
approach. Instead, they highlight some of the future approaches on
which NHTSA would like feedback.
a. FMVSS Requiring Obstacle Course-Based Validation in Variable
Scenarios and Conditions
    A performance-oriented, outcome-based FMVSS could be developed
along one or more of the lines stated in ``AV 3.0'':

    Performance-based safety standards could require manufacturers
to use test methods, such as sophisticated obstacle-course-based
test regimes, sufficient to validate that their ADS-equipped
vehicles can reliably handle the normal range of everyday driving
scenarios as well as unusual and unpredictable scenarios. Standards
could be designed to account for factors such as variations in
weather, traffic, and roadway conditions within a given system's
ODD, as well as sudden and unpredictable actions by other road
users. Test procedures could also be developed to ensure that an ADS
does not operate outside of the ODD established by the manufacturer.
Standards could provide for a range of potential behaviors--e.g.,
speed, distance, angles, and size--for surrogate vehicles,
pedestrians, and other obstacles that ADS-equipped vehicles would
need to detect and avoid.91 92
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    \91\ Page 7. Available at https://www.transportation.gov/sites/dot.gov/files/docs/policy-initiatives/automated-vehicles/320711/preparing-future-transportation-automated-vehicle-30.pdf.
    \92\ For an example of requirements that might be expressed as
mathematical functions, see the discussion of Mobileye's RSS in
section IV.C of this document.

    However, physical testing of ADS functions through an obstacle
course with a wide range of potential scenarios and conditions would
not be without its own limitations. While physical obstacle course
testing may be appropriate and even necessary as part of a future FMVSS
regulating ADS competency, such a test is likely not sufficient to meet
the need for safety in and of itself. Testing an ADS is expected to be
different from the physical testing considered sufficient for today's
vehicles. No physical obstacle course would come close to replicating
the infinite number of driving scenarios an ADS would be expected to
navigate safely, nor the complexity of the driving situations that ADS
might encounter on the roads.
    The level of ADS competency required to handle such diversity and
complexity is partly why ADSs are developed using a variety of
verification and validation tools when exposing the ADS to different
scenarios during development. ADS developers generally use an iterative
process that includes simulations, closed-course testing, and on-road
testing during development and demonstration to expose the ADS to as
many variables as reasonably possible, while also transferring
information from each of those methods of testing back to the others to
help ensure each method includes as many variables as possible.
Situations that occur during on-road testing are important information
for developers to include in the simulations used on ADS, and vice
versa, with scenarios from the simulations being important to validate
in the physical world through on-road testing. Though this iterative
testing is normal for the development process, it may also indicate how
challenging it might be for an obstacle-course test administered by a
third party to include an adequate number and type of scenarios to test
ADS competency, while also ensuring

that such a course would be objective and practicable. While a standard
obstacle course test may provide a baseline of performance, analogous
to current FMVSS that perform a subset of specific crash tests, it
cannot expose a vehicle to the entire spectrum of field crash
scenarios.
b. FMVSS Requiring Vehicles To Be Programmed To Drive Defensively in a
Risk-Minimizing Manner in Any Scenario Within Their ODD
    An FMVSS might also require that the planning and control functions
of an ADS be programmed to adhere to a defensive driving model so as to
minimize the likelihood of getting into a crash-imminent situation
under any scenario within its ODD--similar to the driving policies and
metrics described in Mobileye's RSS, NVIDIA's Safety Force Field, and
NHTSA's MPrISM described previously. This could be accompanied by an
additional requirement that the vehicle be capable of automated
operation within its ODD only. The FMVSS could be complemented by a
requirement that each vehicle manufacturer state in the owner's manual
for each of its vehicles equipped with ADS that it would be unsafe for
the vehicle to operate in automated mode outside its ODD and that the
vehicle has therefore been designed so that it cannot do so. Such a
statement could also include a description of what behavior the vehicle
owner could expect in the circumstance that an ADS exceeds the limits
of its ODD, such as the vehicle will pull over in a safe location.\93\
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    \93\ Importantly, even without standards in place to regulate
these aspects, NHTSA may consider the ability of an ODD-constrained
vehicle to operate outside of its ODD as strong evidence of a
safety-related defect.
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    While programming an ADS to adhere to defensive driving models may
help lower the risk of crash, there are additional ADS performance
aspects that NHTSA would need to consider. Adherence to a defensive
driving model would be one potential requirement that could mitigate
some, but not all, safety risks. Much would also depend on the
implementation of that defensive driving model, and the efficacy of
that implementation.
c. FMVSS Drafted in a Highly Performance-Oriented Manner
    The traditional approach to standard drafting is one where NHTSA
specifies the desired performance in great detail, and may also include
requirements to lessen the likelihood and mitigate the consequences of
failure. For instance, FMVSS No. 135 ``Light vehicle brake systems,''
establishes performance requirements for braking systems functioning
normally, and separate requirements for when brake power assist units
are inoperative or depleted of reserve capability. Applying this
approach to the myriad unique combinations of technologies that may be
developed to perform the four critical functions of an ADS could prove
quite challenging. For instance, the sensing function of an ADS may be
performed by one or a combination of technologies such as LiDAR, radar,
cameras, GPS, and V2X radios/antennae units. If the available
technologies that might be used for sensing fail in distinctly
different ways, the approach the Agency took in regulating light duty
braking might mean that any sensing standard must include different
requirements for different technologies.\94\ The degree of specificity
required for such an approach would necessitate successive rulemaking
proceedings to amend or remove regulatory provisions as they are
obsoleted by technological change.
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    \94\ It should be noted that if an FMVSS were to include such
requirements, the amount of time needed to develop and adopt the
standard would likely be greater. Likewise, the need for periodic
rulemakings to keep the standard up-to-date and avoid potentially
adverse effects on the ability to introduce new hardware and
software would also likely be greater.
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    To avoid this problem, any FMVSS that might be developed for ADS
could be drafted in a manner that minimizes the chances of creating new
barriers to innovation. As the Department stated in ``AV 3.0'':

    Future motor vehicle safety standards will need to be more
flexible and responsive, technology-neutral, and performance-
oriented to accommodate rapid technological innovation. They may
incorporate simpler and more general requirements designed to
validate that an ADS can safely navigate the real-world roadway
environment, including unpredictable hazards, obstacles, and
interactions with other vehicles and pedestrians who may not always
adhere to the traffic laws or follow expected patterns of behavior.
Existing standards assume that a vehicle may be driven anywhere, but
future standards will need to take into account that the operational
design domain (ODD) for a particular ADS within a vehicle is likely
to be limited in some ways that may be unique to that system.\95\
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    \95\ Page 7. Available at https://www.transportation.gov/sites/dot.gov/files/docs/policy-initiatives/automated-vehicles/320711/preparing-future-transportation-automated-vehicle-30.pdf.

    The likelihood of different ADS having entirely different sensors,
systems, and even ODDs that are limited in entirely different ways
introduces additional challenges to NHTSA's traditional approach to
standard drafting. Generally, NHTSA establishes standards meeting the
need for safety in applicable circumstances. When one ADS can operate
only in a discrete set of conditions that varies almost entirely from
the discrete set of conditions in which another ADS is capable of
operating, establishing objective standards meeting the need for motor
vehicle safety for all ADS becomes that much more challenging.
Application of one specific or one series of prescriptive tests may not
be feasible or practical for that wide an array of technology and
operating limitations. Compounding this difficulty is the fact that a
given ADS is likely to be updated over time--and ODD limitations that
apply to a vehicle's ADS at the time of certification could be entirely
different from the same vehicle's upgraded ODD limitations years later.

D. Timing and Phasing of FMVSS Development and Implementation

    As described above, issuing performance standards for ADS
competency has been and remains premature because of the lack of
technological maturity and the development work necessary to support
developing performance standards. Since widespread deployment of ADS
vehicles appears to be years away, NHTSA has the opportunity to decide
carefully and strategically which aspects of ADS safety performance may
require the most attention. By taking this deliberate approach, the
Agency can perform the research and validation necessary to ensure that
any standards developed to regulate those aspects of performance
achieve their purpose without limiting the ability of manufacturers to
develop and introduce further safety improvements and capabilities
unnecessarily.
    Also important to this discussion of timing are the many challenges
and aspects that NHTSA must overcome to implement some of the
mechanisms described in this document. First, it has been NHTSA's
practice to purchase vehicles independently to assess baseline and/or
countermeasure performance when developing an FMVSS. Given the lack of
ADS-equipped vehicles available for testing or any other purposes, the
Agency would have difficulty verifying that a new standard would
achieve its intended purpose without systems and vehicles to test.\96\
In recognition of and

in response to the difficulty, the Agency would be required to explore
alternative avenues to validate the appropriateness of a proposed test
procedure.
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    \96\ NHTSA notes that the issue of unavailability for NHTSA
testing could arise in other circumstances with traditional vehicles
that may not be sold to the public. NHTSA independently and
anonymously purchases vehicles for testing and cannot do so if those
vehicles are not being sold to the public.
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    Next, NHTSA expects a phased approach to regulation of those
aspects of safety performance that may necessitate regulation, given
limited agency resources and the constantly evolving technology and
business models involved in ADS development. NHTSA would need to phase
its responses in several ways. To avoid implementing ineffective or
counterproductive measures, the Agency would need to set priorities and
allocate its resources accordingly. NHTSA has already begun the process
of providing oversight and guidance (including encouraging disclosure
and highlighting key safety aspects the Agency finds relevant for all
ADS developers), as described in previous sections. Further, where
appropriate, the Agency has granted, and will continue to consider
granting, exemptions from FMVSS to allow for limited deployment or
research of in a manner that mitigates safety risk and advances agency
technical knowledge. However, the question remains as to what the
Agency should prioritize next in its goals of advancing the safety of
ADS. Certain mechanisms would permit more expedited implementation,
while others would require much research. Most of the mechanisms would
face some of the practical hurdles related to the unavailability of ADS
to test.
    NHTSA seeks comment on what next steps the Agency should take in
the regulation of ADS, the timing of those steps, and whether any of
the abovementioned steps are required for the development of an ADS-
specific FMVSS regime that achieves appropriate standards for highway
safety while preserving incentives for innovation and accommodating
improvements in technology.

E. Critical Factors Considered in Designing, Assessing, and Selecting
Administrative Mechanisms

    To aid commenters in providing useful information to the Agency on
the array of administrative mechanisms described above, NHTSA has set
forth below a variety of critical factors that the Agency will weigh in
exploring the strengths and weaknesses of those mechanisms.
     Consistent and Reliable Assurance of Safety--To the extent
that the mechanisms provide flexibility in how manufacturers
demonstrate safety, there should be criteria for assessing objectively
whether the methods of each manufacturer should meet a common
standardized level of rigor, including documentation, and a common
standardized minimum level of safety.
     Technology Neutrality/Performance-Based--The Agency wants
to ensure that any mechanism it uses does not pick winners and losers
among available and anticipated technologies. By being highly
performance or outcome oriented, the mechanisms will allow for
innovation and minimize the necessity of having to be amended to permit
the introduction of new technologies. Any new standards and regulations
should be drafted, to the extent possible, in performance-oriented
terms to give manufacturers broad choices among available technologies
and flexibility to develop and introduce new technologies without the
need first to seek amendments to those standards or exemptions.