The new guidance does not constitute a sea change in federal policy toward automated driving systems, but it does clarify or remove a number of problematic elements that were contained in the 2016 FAVP. It is also much more succinct, with ADS 2.0 taking up just 27 pages versus the 112-page FAVP.
The FAVP’s four sections were reduced to two in the new ADS 2.0, with the final and most controversial section that contemplated expanded new NHTSA authorities, such as pre-market approval, being completely eliminated. The section explaining current regulatory tools was also eliminated, as this information is readily available on NHTSA’s website. ADS 2.0 is divided into two sections, “Section 1: Voluntary Guidance for Automated Driving Systems,” and “Section 2: Technical Assistance to States, Best Practices for Legislatures Regarding Automated Driving Systems.”
First, it adopts and conforms to the latest preferred terminology and definitions of SAE International, as expressed in SAE Recommended Practice J3016, “Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles.” The big change here is that rather than referring to highly automated vehicles in the context of the SAE’s levels of automation 3-5 as the FAVP did, ADS 2.0 correctly references automated driving systems with which vehicles may be equipped. NHTSA and other government agencies should strive to adopt consistent language surrounding vehicle automation systems to minimize confusion among developers, policymakers, and the public.
Second, ADS 2.0 repeatedly emphasizes that it is a voluntary guidance document. The word “voluntary” as an adjective to the guidance appears 53 times throughout. In contrast, the word “voluntary” as an adjective to the guidance did not appear once in the FAVP, although the FAVP noted that “This Guidance is not mandatory.” While guidance documents are inherently nonbinding, the FAVP lacked clarity on this point and led to confused developer and state government responses.
Third, ADS 2.0 improves on the FAVP by eliminating three problematic elements from the FAVP’s section on the Safety Assessment Letter: privacy, registration and certification, and ethical considerations. Privacy is the domain of the Federal Trade Commission and NHTSA lacks any meaningful expertise on the subject. As such, it was wise to eliminate it as an element to be contemplated by developers under the new Voluntary Safety Self-Assessment. Registration and certification was removed as an element of ADS 2.0’s voluntary guidance, as this is properly the domain of states, not the federal government. Finally, ethical considerations were eliminated because there is no consensus on what constitutes an appropriate ethical framework for automated driving systems.
Fourth, the new guidance shows NHTSA is concerned by some recent actions by state governments. ADS 2.0 explicitly states: “NHTSA strongly encourages States not to codify this Voluntary Guidance (that is, incorporate it into State statutes) as a legal requirement for any phases of development, testing, or deployment of ADSs.” While the 2016 FAVP did caution states that its guidance was “not mandatory” and “not intended for States to codify as legal requirements for the development, design, manufacture, testing, and operation of automated vehicles,” the FAVP simultaneously urged states to “Implement a rule mandating the submission of the Safety Assessment letter identified in this Guidance” as a condition for state permit approval.
Soon after the release of the FAVP, the California Department of Motor Vehicles proposed to do just that, which CEI criticized in comments to the California DMV earlier this year. Also, in response to state legislation supported by a major automaker aiming to limit competition, ADS 2.0 also urges states to “not place unnecessary burdens on competition and innovation by limiting ADS testing or deployment to motor vehicle manufacturers only.”
CEI will provide more detail on ADS 2.0 in forthcoming comments to NHTSA. But the major takeaway here is that the Department of Transportation is putting its money where its mouth is in preventing overregulation from negatively impacting the development of automated driving systems. For that, they deserve praise.