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On behalf of the Competitive Enterprise Institute (“CEI”), I respectfully submit these comments in response to the National Highway Traffic Safety Administration’s (“NHTSA”) Request for Comment on Removing Regulatory Barriers for Vehicles With Automated Driving Systems (“RFC”).[1]

CEI is a nonprofit, nonpartisan public interest organization that focuses on regulatory policy from a pro-market perspective.[2] CEI previously submitted comments to NHTSA in response to its Request for Comments on the Federal Automated Vehicles Policy in September 2016,[3] and again submitted comments to NHTSA in response to its Request for Comments on the Automated Driving Systems: A Vision for Safety in September 2017.[4] CEI’s Scribner appeared on a discussion panel at NHTSA’s December 12, 2016, Federal Automated Vehicles Policy Public Meeting and participated in the U.S. Department of Transportation’s March 2018 Automated Vehicle Policy Stakeholder Discussion.[5]

Our comments are structured to correspond to the numbered questions posed in the RFC regarding regulatory barriers to vehicles equipped with automated driving systems (“ADS”) under 49 C.F.R. Part 571 Federal Motor Vehicle Safety Standards (“FMVSS”).

RFC Responses

3. Do you agree (or disagree) that the FMVSS provisions identified in the Volpe report or Google letter as posing barriers to testing and certification are, in fact, barriers? Please explain why.[6]

As NHTSA’s response to Google’s November 2015 letter indicates, a number of the potential certification issues identified during the driver reference scan of Volpe’s 2016 preliminary report can be addressed by NHTSA interpreting a vehicle’s self-driving system to be the “driver” or “operator.” Others, however, would require FMVSS amendments promulgated through the rulemaking process. This is particularly true of ADS-equipped vehicles that assume no human ability to direct the vehicle in real-time and which call for reconfigured cabin layouts, potential problems that were highlighted in Volpe’s automated vehicle concepts scan.

Further, letters of interpretation and exemption requests should only serve as temporary mechanisms for allowing ADS deployment. As the former is nonbinding and applicable only to a specific set of facts presented by an individual manufacturer and the latter involves case-by-case approval, NHTSA’s longstanding self-certification regime can only be effectively maintained in light of ADS if NHTSA conducts the necessary rulemakings. These rulemakings could clearly exempt ADS equipment and ADS-equipped vehicles from unnecessary FMVSS requirements or amend FMVSS to explicitly consider ADS and ADS-equipped vehicles.

5. Are there ways to solve the problems that may be posed by any of these FMVSS provisions without conducting additional research? If so, what are they and why do you believe that no further research is necessary? For example, can some apparent problems be solved through interpretation? If so, which ones?[7]

NHTSA faces two related problems in adapting FMVSS for the ADS age: FMVSS were written prior to the development of ADS and ADS-related technical standards are expected to rapidly evolve in the coming years. A potential partial remedy would not require additional research from NHTSA, but would require legislative changes from Congress.

The National Technology Transfer and Advancement Act of 1995 has required that, whenever possible, “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.”[8]

In policies for implementing the aforementioned law, the Office of Management and Budget’s 1998 Circular A-119 instructed agencies to establish “a process for ongoing review of the agency’s use of standards for purposes of updating such use.”[9]

NHTSA has long incorporated private standards in FMVSS. But as standards continue to evolve in light of emerging technologies such as ADS, ensuring that FMVSS reflect the latest standards becomes a critical issue in allowing new vehicle safety technologies to come to market.

CEI has conducted preliminary research on NHTSA’s use of private standards in FMVSS (see Appendix A). One finding is that of the 257 nongovernmental standards incorporated by reference in FMVSS, three standards bodies account for 95 percent of incorporated standards.[10] Another is that the median edition year of incorporated standards is 1980.[11]

These findings suggest that modernizing FMVSS for the ADS age present rulemaking challenges, but also that these are manageable. If Congress were to require NHTSA to consider conforming FMVSS rulemakings whenever an incorporated standard is updated by the standard-setting body, the agency would only need to interface with a small number of standards bodies. In addition, many of these changes could likely be implemented through direct final rules, bypassing the notice-and-comment process and thereby reducing the burden on agency staff.

19. For issues about FMVSS barriers that NHTSA needs research to resolve, do commenters believe that there are specific items that would be better addressed through research by outside stakeholders, such as industry or research organizations, instead of by NHTSA itself?[12]

As noted above, as a matter of federal policy and agency wisdom, NHTSA relies heavily on nongovernmental standards in developing FMVSS. It should continue as such while also strengthening its relationships with voluntary consensus standards bodies, perhaps by shifting from a purely observational role to more active participation on the relevant standards committees.

22. Are there industry standards, existing or in development, that may be suitable for incorporation by reference by NHTSA in accordance with the standards provisions of the National Technology Transfer and Advancement Act of 1995 and the Office of Management and Budget Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and Conformity Assessment Activities?”[13]

As noted above, NHTSA’s process for reviewing and incorporating private standards in FMVSS could be improved. An existing example of how Congress could improve FMVSS conformity with industry standards is found in the Consumer Product Safety Commission’s (CPSC) statutory mandate to regulate the safety of all-terrain vehicles (ATVs).

Congress required the CPSC to use an ATV standard developed by the American National Standards Institute (ANSI) and requires ANSI, or a successor organization, to notify the CPSC when it is considering a revision of the standard.[14] When ANSI or its successor notifies the CPSC of a pending revision of ATV safety standard ANSI/SVIA–1–2007, the CPSC has 120 days to either initiate a rulemaking proceeding “to include any such revision that the Commission determines is reasonably related to the safe performance of all-terrain vehicles” or “notify [ANSI] of any provision it has determined not to be so related.”[15]

In the case of NHTSA, FMVSS, and private standards, Congress could amend 49 U.S.C. § 30102 to add new subsection (c) imposing a similar trigger mechanism to the one found under CPSC’s ATV statute, but for all FMVSS and incorporated standards rather than a single standard. Sample model legislation can be found in Appendix A.[16]

Conclusion

We appreciate the opportunity to submit comments to NHTSA on this matter and look forward to further participation.