Drawing on recent proposals in Congress to force continual updating of regulations to match a single driving automation system consensus standard, I suggested that Congress include a trigger mechanism that requires the Department of Transportation (specifically, the National Highway Traffic Safety Administration (NHTSA)), to make a decision to update any and all of its federal motor vehicle safety standards (FMVSS) whenever any and all voluntary consensus standards (VCS) that are incorporated in whole, in part, or by reference in FMVSS are revised by voluntary consensus standards bodies (VCSB). If it chooses not to adopt the revised consensus standard, NHTSA should then articulate a safety or legal basis for opting for a government unique standard (GUS) instead.
As it stands, the National Technology Transfer and Advancement Act of 1995 requires at Section 12(d)(1), with exceptions on legality and practicality grounds, that “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments” (see 15 U.S.C. § 272 note).
This law led to the current revision of OMB Circular A-119, which established the federal policies for implementing the law. Section 15(b)(7) of the Circular states that “An Agency Standards Executive… [c]oordinates his or her agency’s participation in voluntary consensus standards bodies by… [e]stablishing a process for ongoing review of the agency’s use of standards for purposes of updating such use.”
The law as currently written has no real teeth to it. Agencies are required to submit annual reports to the National Institute of Standards and Technology explaining why they have adopted a GUS over a VCS, or why they have not updated their regulations to incorporate the latest VCS. But agencies are still given a large amount of discretion. When a VCSB updates a VCS incorporated in an agency’s regulation, that agency is under no statutory obligation to either adopt the new VCS or explain why it will not.
To remedy this problem in the auto safety regulatory world, Congress could require that whenever a VCSB revises a VCS incorporated in a FMVSS, NHTSA must either choose to adopt the VCS or articulate a safety or legal basis why it will not.
(2) USE OF REVISED STANDARD.—
(A) DETERMINATION.—Not later than 120 days after SAE International revises the standard referred to in subsection (a), the Secretary, after publishing notice of the revision in the Federal Register, shall determine whether to adopt the revised standard to identify the various levels of automation for motor vehicles.
(B) EFFECT OF DECISION NOT TO ADOPT THE REVISED STANDARD.—If the Secretary decides not to adopt the revised standard—
(i) the Secretary shall notify SAE International of the Secretary's decision; and
(ii) the definitions referred to in subsection (a) shall remain in effect.
Similarly, the House’s SELF DRIVE Act in Section 13(a)(2) would amend 49 U.S.C. § 30102 by adding new subsection (c):
(c) Revisions To Certain Definitions.—
“(1) If SAE International (or its successor organization) revises the definition of any of the terms defined in paragraph (1), (6), or (14) of subsection (a) in Recommended Practice Report J3016, it shall notify the Secretary of the revision. The Secretary shall publish a notice in the Federal Register to inform the public of the new definition unless, within 90 days after receiving notice of the new definition and after opening a period for public comment on the new definition, the Secretary notifies SAE International (or its successor organization) that the Secretary has determined that the new definition does not meet the need for motor vehicle safety, or is otherwise inconsistent with the purposes of this chapter. If the Secretary so notifies SAE International (or its successor organization), the existing definition in subsection (a) shall remain in effect.
“(2) If the Secretary does not reject a definition revised by SAE International (or its successor organization) as described in paragraph (1), the Secretary shall promptly make any conforming amendments to the regulations and standards of the Secretary that are necessary. The revised definition shall apply for purposes of this chapter. The requirements of section 553 of title 5 shall not apply to the making of any such conforming amendments.
“(3) Pursuant to section 553 of title 5, the Secretary may update any of the definitions in paragraph (1), (6), or (14) of subsection (a) if the Secretary determines that materially changed circumstances regarding highly automated vehicles have impacted motor vehicle safety such that the definitions need to be updated to reflect such circumstances.”.
To extend this updating trigger mechanism to all FMVSS, Congress could amend 49 U.S.C. § 30102 to include something like:
(c) Revisions to Voluntary Consensus Standards.—
(1) If a voluntary consensus standards body revises a voluntary consensus standard incorporated in whole, in part, or by reference in any Federal motor vehicle safety standard prescribed under this chapter, it shall notify the Secretary of the revision. The Secretary shall publish a notice in the Federal Register to inform the public of the new voluntary consensus standard unless, within 90 days after receiving notice of the new voluntary consensus standard and after opening a period for public comment on the new standard, the Secretary notifies the voluntary consensus standard body that the Secretary has determined that the new voluntary consensus standard does not meet the need for motor vehicle safety, or is otherwise inconsistent with the purposes of this chapter.
(2) If the Secretary does not reject a voluntary consensus standard revised by the voluntary consensus standard body as described in paragraph (1), the Secretary shall promptly make any conforming amendments to the regulations and standards of the Secretary that are necessary. The revised voluntary consensus standard shall apply for purposes of this chapter.
Such an amendment would not be a silver bullet. FMVSS will still take time to update through the rulemaking process. NHTSA would still have discretion to (wrongly) reject modern technical standards. But given the scope of this problem, amending the law to provide for this modernizing “trigger mechanism” would force a decision point and focus NHTSA on updating its outdated regulations. I will explore this issue in greater detail in a forthcoming paper.