The automobile industry is currently experiencing rapid technological innovation, the arc of which bends toward autonomous vehicles (AVs). This is challenging federal regulators to develop and issue motor vehicle safety regulations more quickly than before, while ensuring that the new regulations are up-to-date, cost beneficial, and without technological impediments.

Over the past five decades, the National Highway Traffic Safety Administration (NHTSA) has used the traditional rulemaking process, with much success, to establish motor vehicle regulations that have made automobile travel increasingly safe for the American public.

However, can this process, which is typically adversarial and contentious but ploddingly produced plentiful rules for conventional vehicles, be efficient at producing rules for AVs? Perhaps not – but an alternative process, called negotiated rulemaking, has the potential to be a more viable and efficient rulemaking process that can speed up the development of new regulations for AVs.

Negotiated rulemaking

Under the traditional process, an agency is not allowed to reveal or discuss any details of its proposal until the notice of proposed rulemaking (NPRM) is published. However, under the negotiated rulemaking process, the agency works in collaboration with the regulated parties and other stakeholders to draft the NPRM.

Congress passed the Negotiated Rulemaking Act in 1990 to allow federal agencies to use negotiated rulemaking when it enhances the traditional rulemaking process (P.L. 101-648). In the Act, Congress stated that the traditional rulemaking process “deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule.”

If the agency and relevant stakeholders reach a consensus on the proposed regulations, the NPRM is published in the Federal Register and solicits comments from the public in the same manner as a traditional rulemaking. Hence, unlike the traditional process – which does not make it easy for stakeholders to exchange views, share information, or focus on finding creative solutions – the goal of negotiated rulemaking is to achieve consensus on the proposed requirements before publishing the NPRM. This consensus could yield significant time savings since it helps to minimize the delays that an agency typically encounters in the traditional process during its internal deliberations on the NPRM comments and the development of the final rule.

To begin the negotiated rulemaking process, the federal agency establishes a formal advisory committee under the Federal Advisory Committee Act (P.L. 92-463). A balanced mix of stakeholders is invited by the agency to participate and represent a specific interest. Generally, a committee is composed of no more than 25 members from the agency, the relevant private and public sector actors, and consumer advocacy organizations. A neutral facilitator is selected to convene the committee and to manage its meetings, which are announced in the Federal Register and are open to observation by members of the public. The committee reviews and analyzes the public comments, and helps the agency draft the final rule. If the committee does not reach a consensus on what to propose in the NPRM, the agency may resort to the traditional rulemaking process and issue an NPRM based on its internal deliberations.

The Federal Motor Carrier Safety Administration (FMCSA), an agency within the U.S. Department of Transportation, used negotiated rulemaking, successfully, to establish regulations for entry-level driver training standards for individuals applying for a commercial driver’s license. The negotiated rulemaking committee included FMCSA and representatives from motor carrier transportation, highway safety, driver training, state licensing, law enforcement, labor unions, and insurance organizations. The committee met regularly from February 2015 until it reached a consensus in May 2015. The consensus recommendations were used to develop and publish the NPRM in March 2016, leading to a final rule in December 2016.

This short timeframe, particularly the 9-month period between the NPRM and the final rule, showcases the advantages of negotiated rulemaking. This is a striking contrast with the NPRM-to-final rule timeframe for a recent NHTSA rulemaking on heavy vehicle electronic stability control, which took just over three years (May 2012 to June 2015).

Advantages of negotiated rulemaking

Congress expected negotiated rulemaking to “increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement or challenge such rules in court.” The advantages of negotiated rulemaking include:

• Greater information sharing and better communication
• Provides a reality check for the agency and stakeholders
• Encourages discovery of more creative options for the regulation
• Produces superior rules on technically complex issues because of the real-time input from all parties
• Reduces contentiousness during the process and litigation after the rule has been finalized

Conducting rulemaking on AV issues using the traditional rulemaking process might easily overwhelm NHTSA’s limited resources.

A rulemaking at NHTSA occurs in five steps:

• quantify the safety problem;
• conduct research to develop one or more tests to evaluate the performance of the safety system;
• issue an NPRM, which proposes the performance test, performance metrics, and pass/fail criteria;
• review and analyze public comments; and
• issue a final rule.

NHTSA spends a significant portion of its time in the research phase to support a major rulemaking action since the research findings are critical to establishing the stringency of the proposed requirements. Negotiated rulemaking may help to broaden the agency’s discovery during the research phase, because under the traditional rulemaking process, industry stakeholders may not provide meaningful feedback on the performance requirements and test procedure until the NPRM is issued.

Rulemaking on Autonomous Vehicles

AV technology is complex and encompasses an array of technical, safety, legal, human factors, ethical, security, and privacy issues, among others. The advanced crash avoidance technologies on AVs, such as adaptive cruise control, automatic emergency braking, blind spot detection, and lane centering, are based on the foundation of antilock brake and electronic stability control systems. Since braking and steering maneuvers are critical for crash avoidance, the performance of these systems will likely be a major part of the regulations for AVs, particularly since many automakers are developing AVs that will not have a brake pedal or a steering wheel.

Braking performance is one area where negotiated rulemaking could be used to accelerate the needed amendments to the existing brake regulations. These amendments would focus on developing compliance tests that can be conducted without a human driver and without a brake pedal control. And, since the public is likely to expect AV braking performance to be similar to the performance on conventional vehicles, the performance requirements would essentially remain unchanged.

In the traditional rulemaking process, NHTSA conducts its own test procedure development, and stakeholders provide input on the proposed test conditions after the NPRM is published. Negotiated rulemaking would allow NHTSA to use the knowledge and resources from a committee of subject matter experts to develop appropriate procedures to test AV braking systems and to achieve consensus on these procedures before issuing the NPRM.

For systems that are important for the safe operation of AVs, but for which there are currently no federal regulations, the agency could use the expertise of stakeholders to quickly develop performance tests, performance metrics, and pass/fail criteria. Automatic emergency braking (AEB) is one such system. The technology alerts the driver to an impending rear-end crash and automatically applies the brake if the driver does not brake or applies insufficient braking. The agency currently includes AEB tests in its New Car Assessment Program, which could be used as a starting point in drafting a regulation for AEB.

The Road Ahead

AVs are the wave of the future for motor vehicle transportation, and the promise of significant gains in highway safety can become a reality sooner if NHTSA uses negotiated rulemaking to develop and issue safety standards for these vehicles. This process allows stakeholders and subject-matter experts to help the agency make its research efforts more efficient, guide it toward more creative options for proposed regulations, and shorten the overall rulemaking process for complex rules.

Given the complex issues surrounding potential AV regulations, now is the perfect time for NHTSA to embrace the negotiated rulemaking process – and Congress empowered the agency to do just that by enacting the Negotiated Rulemaking Act. Ultimately, this will expedite the development of AV regulations and help fulfill the promise of safer roads for the American public.

The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.