On November 19, 2020, NHTSA issued an Advance Notice of Proposed Rulemaking (“ANPRM”) asking interested parties and the public to provide the agency with information intended to help NHTSA devise a “Framework for Automated Driving Safety” that will allow the agency to implement safety standards for the operation and performance of automated driving systems. Comments are due 60 days after the ANPRM is published in the Federal Register. NHTSA last addressed AV in March, when it issued a Notice of Proposed Rulemaking addressing occupant safety and crashworthiness for AVs that do not have typical seating configurations. This notice addresses operation of the automated systems in SAE Level 4 and 5 vehicles. 

NHTSA posits that it should focus on four primary functions of the automated systems: sensing (“how the ADS receives information about its environment”); perception (“how the ADS categorizes other road users…, infrastructure…, and conditions”); planning (“how the ADS analyzes the situation… and makes decisions”); and control (“how the ADS executes the driving functions necessary to carry out the plan”). Commenters are invited to address both process (how the various functions should be measured and evaluated) and engineering (performance metrics, thresholds and procedures) measures relating to each of the four core functions, and how this framework should be administered once it is in place. NHTSA’s goal is “development of FMVSS governing the competence of ADS.” NHTSA asks commenters to discuss what engineering and process measures should be included in a safety framework, 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 systems possess?).” NHTSA also “wishes to know which aspects [of these systems] are so important that they should be subject to separate Federal regulations.” To help commenters address these open questions, the ANPRM concludes by asking commenters to address dozens of specific questions relating to the larger issues in the ANPRM.

The ANPRM gives some hints as to NHTSA’s thinking. It mentions its MPrISM safety metric, the 2018 RAND Corporation report on AV safety, NVIDIA’s “Safety Force Field,” Safety First for Automated Driving’s 2019 paper, and Intel’s Mobileye’s Responsibility Sensitive Safety paper as approaches it is monitoring. It also refers to ISO 26262, 21448 and UL 4600 as process standards that might be part of a framework, and NHTSA also hints at the idea of an “ADS competency evaluation” as part of NCAP.

The ANPRM concludes with a series of “critical factors NHTSA expects to weigh in assessing comments. These include a “common standardized minimum level of safety” reached consistently and reliably, technology neutrality, and predictability, which will allow manufacturers to anticipate levels of performance. NHTSA’s questions range from the commenter’s “conception of a safety framework” and NHTSA’s administrative mechanism for implementing it. Comments on these very important issues are due 60 days after the ANPRM is published in the Federal Register.

If you have questions about this ANPRM or any other issues related to automated vehicles or if you would like to submit a comment in response to this ANPRM, the Dykema Automotive Industry Group would be happy to assist you. Please contact the Director, Dommond E. Lonnie (dlonnie@dykema.com), Tom Alleman (talleman@dykema.com) or Derek Whitefield (dwhitefield@dykema.com).

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Photo of Thomas B. Alleman Thomas B. Alleman

A veteran courtroom lawyer and “well regarded litigator” (Chambers USA 2017), Tom Alleman is at home in trial and appellate courts throughout the United States. His practice focuses on litigation, commercial insurance coverage questions ranging from cyberliability and data breach questions to…

A veteran courtroom lawyer and “well regarded litigator” (Chambers USA 2017), Tom Alleman is at home in trial and appellate courts throughout the United States. His practice focuses on litigation, commercial insurance coverage questions ranging from cyberliability and data breach questions to environmental and D&O issues, regulatory proceedings and advice involving complex environmental and toxic tort issues, and legal challenges facing financial institutions. His extensive experience enables him to step in on short notice when necessary to assist clients in resolving problems or trying cases.

Mr. Alleman is the Director of Dykema’s Insurance Industry Group.

Photo of Dommond E. Lonnie Dommond E. Lonnie

Dommond E. Lonnie is a seasoned trial attorney who provides aggressive and innovative legal representation and advice for his clients in product liability, class action, commercial and toxic tort litigation. Mr. Lonnie has represented numerous domestic and foreign businesses and has substantial product…

Dommond E. Lonnie is a seasoned trial attorney who provides aggressive and innovative legal representation and advice for his clients in product liability, class action, commercial and toxic tort litigation. Mr. Lonnie has represented numerous domestic and foreign businesses and has substantial product liability expertise in crashworthiness, airbags/restraints, fires and  suspensions/tires/rollovers, airbags/restraints, fires, brakes, and fuel systems cases. An experienced litigator and legal strategist, Mr. Lonnie implements litigation and investigation plans and manages all aspects of litigation and pre-suit claims to successful resolution. He has earned recognition in providing high level client service through timely and effective communication. Mr. Lonnie is a member of the Products, Class Action & Professional Liability practice group and the Director of Dykema’s Automotive Industry Group, a multidisciplinary practice group focused on providing high quality legal service to automotive and mobility manufacturers.

Photo of Derek S. Whitefield Derek S. Whitefield

Derek S. Whitefield’s national trial practice is focused on the defense of product manufacturers, business entities, and insurers. Mr. Whitefield is the former Leader of the Firm’s Product Liability Practice Group, and an elected member of the Firm’s Executive Board. According to Chambers

Derek S. Whitefield’s national trial practice is focused on the defense of product manufacturers, business entities, and insurers. Mr. Whitefield is the former Leader of the Firm’s Product Liability Practice Group, and an elected member of the Firm’s Executive Board. According to Chambers USA 2020, clients describe Mr. Whitefield as “a wonderful trial lawyer and a very effective communicator with juries – he is really good at personal connections.”