Page 28 - Autonomous Vehicle Engineering (January 2020)

Standards/Regulatory

The more effective use of NHTSA’s existing
regulatory tools will help to expedite the safe
introduction and regulation of new HAVs [high-
ly automated vehicles – ed.]. However, because
today’s governing statutes and regulations
Cadillac were developed when HAVs were only a remote
notion, those tools may not be sufficient to
A particularly vexing regulatory problem comes in defining and setting ensure that HAVs are introduced safely, and to
performance standards for widely disparate types of advanced driver-assis- realize the full safety promise of new technol-
tance systems (ADAS), such as Cadillac’s Super Cruise. ogies. The speed with which HAVs are advanc-
ing, combined with the complexity and novelty
test procedures and test equipment, and conducting of these innovations, threatens to outpace the
Agency’s conventional regulatory processes
notice-and-comment rulemakings to incorporate and capabilities.
those metrics, procedures and tests into new FMVSS. Federal Automated Vehicles Policy,
September 2016
• The time required for rulemaking. The DoT noted
in its October 2018 Preparing for the Future of
Transportation (AV 3.0) that the “pace of innovation and accompanying test protocols. But not all of these
in automated vehicle technologies is incompatible were welcome news to the industry, leaving manufac-
with lengthy rulemaking proceedings and highly turers running to the courthouse to challenge the scope
prescriptive and feature-specific or design-specific and breadth of NHTSA’s power. One of the first legal
safety standards.” challenges to the newly empowered agency came in
1972 to FMVSS 208, the standard addressing occupant
We did it to ourselves crash protection. In Chrysler Corp. v. Department of
It’s hard to deny that a lack of financial resources, the Transportation, several OEMs and the Automobile
speed of technology, the time to create regulations Importers of America challenged the implementation
and a hyper-partisan Washington are contributing of several provisions of the standard.
factors to a lack of progress in substantive rulemaking. In 1978, the Supreme Court declined to hear an
But a walk through history shows that there may be appeal of the decision of the Ninth Circuit in Paccar, Inc.
undercurrents – deeply influenced by manufacturers’ v. NHTSA which addressed FMVSS 121, the standard
needs and wants – which created a less-than-receptive addressing air brake systems. NHTSA created a substan-
regulatory environment. tial road-testing procedure which was challenged for its
NHTSA earns its stripes: In 1966, Congress passed practicability and objectivity. The court determined that
the National Traffic and Motor Vehicle Safety Act, the “amorphous due care standard” was neither practi-
legislation that gave NHTSA broad jurisdiction over all cable nor objective.
elements of design in motor vehicles. Principally, the Overall, NHTSA lost six out of ten court cases in
Act empowered the new regulatory agency with three the first fifteen years of its existence.
charges: compel the industry to pursue innovation in In their 1990 book, The Struggle for Auto Safety, Jerry
automotive technology; make rules to ensure citizens Marshaw and David Harfst suggested that these cases, and
are safe in their vehicles; oversee the recall of defective the Chrysler case in particular, gave the public a sense that
vehicles. As part of the Act, NHTSA was given the power the industry was being forced to endure “costly interven-
to issue Federal Motor Vehicle Safety Standards (FMVSS) tions of a technically incompetent bureaucracy.” Further,
targeted to reduce motor vehicle collisions and fatalities. it made businesses and the public believe that standards
Manufacturers slow NHTSA’s progress: With its created a large burden on the industry. With a pro-busi-
newfound authority, NHTSA rolled out regulations ness, pro-manufacturing perspective, rulemaking hit an

26 January 2020 AUTONOMOUS VEHICLE ENGINEERING