Page 11, Section I: Vehicle Performance Guidance for Automated Vehicles section explicitly states, “This guidance is not intended for States to codify as legal requirements for the development, design, manufacture, testing, and operation of automated vehicles.”  Thus, the Policy is clear that States should not codify (i.e., incorporate into State statutes) the Vehicle Performance Guidance or any of the specific elements of the Safety Assessment Letter. However, as part of State oversight of HAV deployment and testing within that State, it may wish to request a copy of any Safety Assessment Letter an entity has submitted to NHTSA. It should be noted that NHTSA is taking steps to make publicly available the safety assessment letters received by the Agency, which would obviate the need for a State to request an additional copy.

The Model State Policy (Section II of the FAVP) is designed to accomplish two aims: first, to clarify and delineate the Federal and State roles for the regulation of highly automated vehicles; and second, to lay out a framework that the States may use as they write their laws and regulations so that we build a consistent, national framework for the testing and operation of highly automated vehicles.

As stated in the Model State Policy, NHTSA strongly encourages States to allow NHTSA alone to regulate the safety and performance aspects of HAV technology and vehicles. NHTSA encourages those States that wish to regulate HAV testing to incorporate relevant components of the Model State Policy into their regulations, in order to promote a more cohesive body of authorities and avoid a patchwork of inconsistent State laws and regulations. During the development and after the subsequent release of the Model State Policy, many State government officials expressed their views that while they were generally comfortable with the Federal Government having the responsibility for the regulation of vehicle and equipment safety, they would need confidence that vehicle manufacturers, testers and other entities were conforming to the safety approach envisioned in the Federal Automated Vehicles Policy. Therefore the Model State Policy suggests to States that they may request submission of confirmation that an automaker, tester or other entity has followed the principles set forth in the Vehicle Performance Guidance. The Model State Policy recommends that a copy of the Safety Assessment Letter could serve that purpose, but as the letter is presently voluntary, a State could request alternative documentation in the event an entity does not submit a Safety Assessment Letter.

Absent this assurance, and absent the implementation of a new Federal Motor Vehicle Safety Standard that would preempt State action, States have the legal right and power to develop their own vehicle safety and performance criteria. Such actions would create the undesired patchwork of State laws and regulations that would inhibit innovation by presenting developers of these technologies multiple sets of potentially conflicting standards.
 

The Policy is a framework to foster the safe testing and deployment of automated vehicles, delineate State versus Federal roles, clarify current regulatory tools, and begin discussions and considerations of potential additional regulatory tools. The Safety Assessment Letter discussed in the Vehicle Performance Guidance section is a voluntary submission by any entity testing or deploying HAV. Entities are not required to submit a Safety Assessment Letter; there is no enforceable requirement to comply with the Policy as it relates to the Safety Assessment Letter. The Policy does contemplate that in the future, the Agency may engage in a rulemaking to require the submission of the Safety Assessment Letter (p. 15).

To facilitate voluntary submissions, NHTSA has developed an illustrative template as an example of the type and amount of information the Agency is requesting. The Agency is developing additional templates for receipt notifications and supplemental information requests, to be used in the event that further dialogue is needed on one or more of the 15-point safety assessment areas. These do not involve a burden-hour increase from the original estimate provided.
 
Lastly, the Safety Assessment Letter is not intended to be used as an enforcement tool. If automated safety technology or equipment pose an unreasonable risk to safety, the Agency, in accordance with NHTSA Enforcement Guidance Bulletin 2016-02: Safety-Related Defects and Automated Safety Technologies, published concurrently in the Federal Register with the Policy on September 23, 2016, will use all tools at its disposal to protect against unreasonable risk of harm that may occur because of the design, construction or performance of a motor vehicle or motor vehicle equipment. NHTSA’s existing authority and responsibility covers defects that create unreasonable risks to safety that may arise in connection with automated vehicles.

Page 16, under Section I:  Vehicle Performance Guidance for Automated Vehicles, states, “…NHTSA would expect manufacturers and other entities to provide a safety assessment letter at least four months before active public road testing begins on a new automated feature.”

The four-month reference is intended to be the maximum amount of time NHTSA expects to take for review of the Safety Assessment Letter and any dialogue with an entity to begin, if necessary. However, we do not expect that each exchange will take four months, rather up to four months. While NHTSA strongly encourages submission of a Safety Assessment Letter prior to testing and deployment, entities are neither required to submit a letter nor to delay testing or deployment based on the submission and evaluation of a letter. There is no mandatory waiting period.

Page 16, under Section I: Vehicle Performance Guidance for Automated Vehicles, states, “For each area, the Safety Assessment should include an acknowledgment that indicates one of three options… Next to the checked line item, the submitter should include the name, title, and signature of an authorized company official and the date.”

NHTSA has not stipulated who within an organization should be the signatory of the Safety Assessment Letter or the 15 points to be included in such a letter. NHTSA envisions that the signatory for each of the 15 points should be an individual with expert knowledge in that area and authority to speak for the entity. Depending on the entity, this could be one person for all safety assessment points or different individuals for different areas. 

Page 17 of the Policy discusses changes to software that would constitute submission of a revised Safety Assessment Letter. In general, a revised letter is appropriate whenever a manufacturer or entity makes software or hardware updates that constitute a significant change to any of the 15 elements in the Safety Assessment. It is not necessary, however, to submit a revised letter that contains all of the 15 points. Rather the revised letter need only address those elements that have changed significantly. 

Specific examples from the Policy include: 

“If these software or hardware updates materially change the way in which the vehicle complies with any of the 15 elements of the Guidance, the agency would deem the update to be one that would necessitate provision of a Safety Assessment to the agency summarizing that particular change.” (p. 17)

“For the HAV OEDR capability, if there is a change to the set of normal driving scenarios or pre-crash scenarios that the HAV system has the capability to address as a result of a software or hardware update, then this should also be summarized in revised Safety Assessment.” (p. 17)

With respect to fall back strategy, “If the fall back strategy and the resulting implementation for achieving a minimum risk condition is changed by a software or hardware change, this change should be addressed in a new or revised Safety Assessment.” (p. 17)

On page 15, the Policy states that the Safety Assessment Letter should be sent to NHTSA’s Office of the Chief Counsel. Further, entities should follow NHTSA’s CBI regulation (49 CFR Part 512) to handle such information. CBI may be submitted separately from a Safety Assessment Letter, and should be cross-referenced in the Letter. 

On Page 18, Section I: Vehicle Performance Guidance for Automated Vehicles, E. Cross-Cutting Areas of Guidance, 1. Data Recording and Sharing requests that “manufacturers and other entities should collect, store and analyze data regarding positive outcomes.” The Policy defines positive outcomes as, “events in which the HAV system correctly detects a safety relevant situation, and successfully avoids an incident (e.g., “near misses”….).” 

NHTSA intends for manufacturers and other entities to collect information involving positive outcomes. Near misses, as a subset of positive outcomes, are those incidents in which the “automated function correctly detects and identifies an unsafe maneuver initiated by another road user and executes an appropriate response that successfully avoids an event, incident, or crash” as stated on page 18 of the Policy. Thus a successful maneuver through such a situation constitutes a near miss, but the circumstances around the event may be important to share with other entities as systems are developed. 

NHTSA expects that each entity will develop an appropriate definition according to its testing and deployment plans. Based on the input of those entities, NHTSA will consider whether further clarification is necessary with respect to what constitutes a near miss incident.

The Policy states, “each entity should develop a plan for sharing its event reconstruction and other relevant data with other entities. Shared data will help to accelerate knowledge and understanding of HAV performance, and could be used to enhance the safety of HAV systems and establish consumer confidence in HAV technologies.” The Policy does not require entities to share data, rather it recommends development of a plan for sharing data to increase the broad knowledge base. NHTSA recognizes that additional coordination with industry is needed to determine what data can be shared. 

NHTSA does not expect States to create any entity in order to have a fully functioning automated safety technology committee; however, States may decide to create some of these entities. On page 40, under Section II:  Model State Policy, C.1. Administrative, NHTSA included recommendations to assist in the safe and knowledgeable introduction of automated vehicles onto the States’ roadways. Recommendation b. stated: 

“Each State should create a jurisdictional automated safety technology committee that is launched by the designated lead agency and which includes representatives from the governor’s office, the motor vehicle administration, the State department of transportation, the State law enforcement agency, the State Highway Safety Office, office of information technology, State insurance regulator, the State office(s) representing the aging and disabled communities, toll authorities, and transit authorities.”

The references to these specific entities were intended as examples of those that may be appropriate for participation in an automated safety technology committee. They are not requirements. NHTSA recognizes that some of the listed entities may not exist in all States. The committee structure may vary from State to State.

Page 41, Section II: Model State Policy, C.2.g. Application for Manufacturers or Other Entities to Test HAVs on Public Roadways states, “The application should identify each test operator, their driver’s license number, and the jurisdiction or country in which the operator is licensed.” Page 43, Section II.C.3.g. Jurisdictional Permission to Test states, “Each test vehicle should be properly registered and titled in accordance with the State’s laws.” Under both referenced sections, the intent was for authority to reside with the State jurisdiction. 

Page 43, Section II. Model State Policy, C.4.Testing by the Manufacturer or Other Entity, Recommendation d. states, “Before being allowed to operate a test vehicle, the persons designated by the manufacturer or other entity as operators of the test vehicles may be subjected to a background check including, but not limited to, a driver history review and a criminal history check.”

The Policy does not require such testing but rather suggests that States consider developing authority to test drivers. The choice of whether or not to conduct background checks is at the discretion of the State.  

The intent of the policy is to address the entire spectrum of partially to fully automated systems. The SAE Levels of Automation refer to the capabilities and functions of automated systems. The entire policy includes all levels of automation (L2-L5) because a manufacturer or supplier can alter the classification of its automation by adding or omitting capabilities and functions.
    
Table 1 on page 34 of the Policy details each of the 15 safety points and whether each applies to Level 2 systems/vehicles as well as compared to Levels 3 to 5 systems/vehicles.

Entities submitting a letter for Level 2 automated systems should pay particular attention to Section I:  Vehicle Performance Guidance for Automated Vehicles, G. Guidance for Lower Levels of Automated Vehicle Systems starting on page 31. Table 1 on page 34 of the Policy details each of the 15 safety points and whether each applies to Level 2 systems/vehicles.  

Page 12, Section I: Vehicle Performance Guidance for Automated Vehicles, B. Scope, states, “This Guidance is intended for vehicles that are tested and deployed for use on public roadways. This includes light-, medium-, and heavy-duty vehicles.”  The Guidance is intended to be applied to any motor vehicle under the jurisdiction of NHTSA operated on public roadways including, but not limited to low-speed vehicles, motorcycles, passenger vehicles, medium-duty vehicles, and heavy-duty vehicles.