#8 Comments in Response to NHTSA ANPRM - Two Organizations Offer Well-Informed Perspectives

 Reader beware: It's a long post, so skip whatever. 

Acronyms for today

ADS - Automated Driver System (sometimes referred to as ADAS for Advanced Driver Assistance System), which requires a human driver to monitor and at points take over operation of the vehicle

ANPRM - Advanced Notice of Proposed Rule Making

AV - Autonomous Vehicle

GAO - Government Accountability Office

GAO is a legislative branch government agency that provides auditing, evaluation, and investigative services for the United States Congress. It is the supreme audit institution of the federal government of the United States.

NCAP - New Car Assessment Program

NCSL - National Conference of State Legislatures

NHTSA - National Highway Transportation Safety Administration (an agency within the US Department of Transportation)

NTSB - National Transportation Safety Board

SUV - Sport Utility Vehicle

USDOT - US Department of Transportation

Comments tally

Disclaimer/Explanation: Please note that anonymous comments and ones where the author's background is undeclared or not easily discovered are counted as "regular people" unless it becomes apparent that the commenter has professional expertise, which then shifts the comment into that category. Also note that the comments tally includes those comments summarized below in this blog post. All categorizations are my own and might seem random or wrong to someone else.  I am not an engineer, an automotive geek, or a software expert.

Comments are due by Feb. 1, 2021. 

Total comments to the Framework for Automated Driving System Safety (Framework) Advance Notice of Proposed Rule Making (ANPRM) issued by NHTSA that I have studied - 18 

Total comments as of Jan. 22, 2021 - 155  - Many comments have flowed in since Jan. 19 and those I have not yet mentioned in my summaries are listed below.  More than 20 were submitted on Jan. 22 alone and almost 100 thus far today. 😲

Anonymous - 2

Companies or Organizations - 6

Individuals with professional expertise - 6

Cybersecurity -2  

Regular people - 4 

Regular people who want increased safety - 3

Regular people who do not believe AVs will be safer than human drivers - 1

Regular people who do not want regulation to constrain innovation - 1

Spam comments - 1

Instructions for submitting comments can be found in the ANPRM.

Please note that these comments are not necessarily representative of the opinions of the US population; rather they come from corporate or non-profit entities or professionals with an interest in AVs, or people with the time, energy, and space in their lives attend public meetings - in this case to devote attention to Federal Register notices. The regulation-making process is, if not hidden, then placed out of the way in the bowels of federal agencies, and is oft forgotten when we vote or choose where we participate in our democracy.  

Two organizations, two perspectives

In this post, I am looking closely at the comments of the American League of Bicyclists (the League) and the National Conference of State Legislatures (NCSL), both organizations that do a lot of informed work in transportation generally and related to autonomous vehicles (AVs).  Whereas the League challenges us, or NHTSA specifically, to reimagine US roads as serving people, however they travel, using various modes of transportation, NCSL proclaims that there is no reason to rethink the ancient  - or since 1966 - balance of power between states and the federal government over regulation of vehicle safety. In contrast to studies of transportation it has done with respect to other modes, here NCSL conceives of AVs as simply replacing the human-driven vehicles we now utilize and declares that we should protect the separation of state versus federal responsibilities in perpetuity.

Complete and equitable streets: Safety for those outside of the vehicle

The comment of the League of American Bicyclists focuses on the safety of all of those who use our road space, not only people inside vehicles. The League did not begin with spandex clad weekend cyclists or commuter bikers who seek separated bike lanes; it actually dates back to 1880 when biking became an American craze. Though founded as a male-dominated organization to promote and build safe roads for a new sport, the League prominently pays homage to women, whose fashions and social independence in the early twentieth century were greatly influenced by biking as a transportation mode. (There are lots of interesting materials to read and podcasts to listen to on this subject.) 

Responding to the specific questions in the NHTSA ANPRM, the League declares that we expand our view of vehicle safety and of the roadway itself.

[T]he League believes that the framework should include: 

• A process that is inclusive of people biking and walking, people with disabilities, people from Black and Brown communities, people young and old; and 

• Engineering measures that include public testing of ADS for efficacy in sensing people of all races and ethnicities and modes of transportation, perceiving people of all types outside of vehicles, and planning to avoid and mitigate harm to people of all types outside of vehicles.

The League's comment points to the numbers, in particular the rising numbers of pedestrians and bikers killed and the increase in their share of road fatalities in contrast to the decrease in fatalities of those who ride inside vehicles. "NHTSA must act to stop that trend and ensure that ADS do not lead to further suppression and danger of active travel, which is critical to public health, environmental goals, and economic sustainability." (ADS is Automated Driving System). In this way, the League's comment ties safety engineering to broad social goals instead of the status quo prism of vehicle occupant safety and a presumption of travel in automobiles.

What is federal regulation for?

This is a comprehensive comment in terms of policy and the only comment, thus far, to mention roadway users outside of vehicles, broader societal goals, and the importance of research of design and technology on roadway interaction with people walking and biking. It is also the only comment at this point that has called upon NHTSA to consider particular transportation-challenged populations. Though the comment does not explicitly condemn the auto industry's production of and marketing mania to sell larger and larger SUVs and light trucks, the League is clearly apoplectic (in a rational, written way) about NHTSA's neglect of the deaths and injuries that these vehicles have wrought and continue to pose on US streets and highways. 

Specific recommendations

• Vision test for AVs "to ensure that ADS are safe for people biking and walking of all sizes, shapes, races, and ethnicities." In the details provided of what a vision test should encompass, the League emphasizes its theme that all types of people be seen. The vision test, in my opinion, is a good example of a performance standard that does not restrict the type of technology developed and implemented.
• Regulation to prevent further technological development that increases risks or limiting the mobility of people biking and walking due to implementation of ADS. The League highlights the "GAO report, “NHTSA Needs to Decide Whether to IncludePedestrian Safety Tests in Its New Car Assessment Program” [(NCAP) which] shows the effects of postponing and avoiding regulation that can save the lives of people biking and walking through NHTSA’s inaction on NCAP and crashworthiness standards." 
• Either comparative tests or performance standards are acceptable, but not testing or standards that ignore pedestrian and biker safety.
• Additional research should include safe walking and biking. "NHTSA should support research on the interaction of roadway designs and ADS so that Federal, state, and local governments can ensure they are building roadways that support the safe mobility of people biking, walking, and using ADS-equipped vehicles." The League also argues in favor of research on "human-machine interaction and what best builds confidence and understanding for people biking and walking interacting with ADS-equipped vehicles." 
• "[I]mmediate action to modernize the New Car Assessment Program (NCAP) to include tests for the safety of people biking and walking. NHTSA should consider testing that is similar to the testing conducted by EuroNCAP for vulnerable road users, including testing of automated emergency braking systems for their efficacy in responding to people biking and walking in multiple contexts. NHTSA should also consider additional testing to account for vulnerable road users of different sizes, shapes, races, and ethnicities to understand the efficacy of systems given the diverse populations of the United States." 

The briefest way to describe the League's comments is that this organization is seeking to reframe the vehicle safety conversation to equally prioritize the safety of pedestrians and bikers, and not merely to relegate them as afterthoughts in a process geared toward vehicle passenger safety. Read about the NTSB's recommendations to include pedestrians and bikers in NCAP, which are referred to in the League's comment. 

The League takes to heart the famous Robert F. Kennedy quote: “Some men see things as they are, and ask why. I dream of things that never were, and ask why not.” (Yes, it's a slightly changed quote from George Bernard Shaw, but more poetic.) Kennedy, a Senator from New York and the former Attorney General and brother of President Kennedy, often used the quote at campaign events and his younger brother, Sen. Edward Kennedy, included it in his eulogy. (Bobby Kennedy was the most inspirational candidate of my lifetime, but I was a very little girl who was absorbing the excitement in my Brooklyn household.)

Photo of Robert Kennedy campaigning for president 
in 1968 from Getty Images, posted on Daily Kos
(Mar. 3, 2020).

Why change at all?

NCSL takes a different attitude. As a bipartisan organization that supports state legislatures across the country, NCSL is arguably not in a position to make waves. It has a braintrust of knowledge about issues that state governments regulate, such as ones at issue with road safety: driver's licenses, automobile insurance, speed limits, and vehicle codes. It also maintains a fabulous AV library of state legislative activity, legislation, executive orders, and regulations. 

The federal government, on the other hand, by a 1966 statute, regulates vehicle safety standards and, via federal funding, sometimes "encourages" particular speed limits. 

NCSL's comment, in keeping with its institutional position to respect the expertise of state legislatures, seemingly seeks to protect this over-50-year tradition of split of authority. Using the word "encroach," NCSL warns against alteration to the federal/state balance, and especially against expansion of federal authority. "This federal authority related to the safety aspects of the design, construction, and performance of a motor vehicle does not include compliance with the traffic laws, rules of the road, or the operation of motor vehicles of a state or political subdivision of a state."

Though NCSL has a point and there has been an ongoing dialectic going back to the drafting of the US Constitution about the proper federal state balance of powers, there is nothing inherently sacrosanct about a town, a city, a county, a state, or a nation being the appropriate decision maker about how difficult to make a driving license test, the enforcement of speed limits, or the speed limit itself.

Constitutional law lesson

From Inauguration Day 2021 celebration, 
participants socially-distanced and masked.

In terms of the US Constitution, NCSL and state governments have the power of persuasion, but not a leg to stand on because the Commerce Clause in Article 1, Section 8, generally interpreted broadly by the US Supreme Court, grants Congress the authority to regulate interstate commerce. Certainly, the importance of transportation and road safety to commerce is a pretty easy reach. 

This does not mean that Congress will extend its reach beyond the balance set in current law, but it could. Likewise, NHTSA has broad jurisdiction over vehicle safety that it arguably has never fully exercised.

What NCSL has, in my opinion, is the power of the status quo - and that status quo is the familiar separation of authority discussed above. The question that remains, most likely for Congress, is whether that balance will be retained when the driver and the vehicle become one.

Posted comments not yet covered - list as of Jan. 22, 2021

This list takes us to 62 comments and a peak a moment ago shows we are now at 155 comments.

1. Aerospace Engineer anonymous
2. Humanetics
3. David DeVeau
4. Car ReFormat comment from Ralph Panhuyzen - listed as a document rather than a comment
5. Gary Schifmiller
6. Alan Kailer
7. Anna Walters
8. James Hooper
9. Dave Simmons
10. Richard Millsap
11. Allison Burson
12. Lance Jacobs
13. Michael Kelley
14. Champe Burnley (Two comments, both posted Jan. 21, 2021)
15. Rob Eckmann
16. Mark Dehanke
17. Jay Ellis
18. Robert Nelson
19. Steve Betts
20. Ira Josephs
21. Sean Hunt
22. Stephen Minster
23. Gina Simpson
24. Kristin Firth
25. Erica Stanojevic
26. Kira Gillette
27. David Kaufmann
28. Fred Story
29. Michael Colucci
30. A-D Riley
31. Alexander Van Duyne
32. Shawn Aldridge
33. Anna Karimi
34. Larry Riley
35. Jack Rinaldo
36. Daniel Frey
37. Heidi Perry
38. Frank Blake
39. Ian Frederick-Rothwell
40. Lawrence Anson

The math does not quite add up because I have examined 18 comments and this list offers 42 more (because there is one person who posted two comments), whereas the regulations.gov page gives the number at 62. 16 + 42 ≠ 62, 16 + 42 = 60. No guess whether I have missed a few. I will keep going over the posted list, which is necessary because the commenters are not listed in order of date of submission or in alphabetical order. Annoying.

Again, there's a whole bunch, taking the current number of 155, that I have not looked at, nor even skimmed the now much-expanded list.