Nuro, Inc.; Grant of Temporary Exemption for a Low-Speed Vehicle With an Automated Driving System, 7826-7842 [2020-02668]

Download as PDF 7826 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2019–0017] Nuro, Inc.; Grant of Temporary Exemption for a Low-Speed Vehicle With an Automated Driving System National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Notice of grant of a petition for a temporary exemption from three provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 500, ‘‘Low-speed vehicles.’’ AGENCY: This notice grants the petition of Nuro, Inc. (Nuro) for a temporary exemption from three requirements of FMVSS No. 500 under two bases: (1) That an exemption would make the development or field evaluation of a low-emission motor vehicle easier and would not unreasonably lower the safety level of that vehicle; and (2) that compliance with these requirements would prevent Nuro from selling a motor vehicle with an overall safety level at least equal to the overall safety level of a nonexempt vehicle. The vehicle that Nuro intends to manufacture under this exemption—the ‘‘R2X’’—is a highly automated, electric, low-speed vehicle (LSV) that lacks seating positions and manual driving controls and is smaller, lower, and narrower than conventional vehicles. The exemption applies to the requirements that an LSV be equipped with exterior and/or interior mirrors; have a windshield that complies with FMVSS No. 205, ‘‘Glazing materials’’; and a backup camera system that meets the requirement in FMVSS No. 111, ‘‘Rear visibility,’’ limiting the length of time that a rearview image can remain displayed by the system after a vehicle’s transmission has been shifted out of reverse gear. DATES: Nuro’s petition is granted as of February 11, 2020. FOR FURTHER INFORMATION CONTACT: Daniel Koblenz, Office of Chief Counsel, Telephone: 202–366–2992, Facsimile: 202–366–3820. The mailing address for this official is: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. SUPPLEMENTARY INFORMATION: khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: Table of Contents I. Executive Summary II. Background a. Statutory Requirements for Temporary Exemption Petitions VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 b. Low Speed Vehicles (LSVs) and FMVSS No. 500 III. Nuro’s Petition IV. Notice of Receipt V. Selection of Statutory Basis for Analyzing the Merits of the Petition VI. Safety Analysis a. An Exemption From the Requirement That an LSV Be Equipped With Exterior and/or Interior Mirrors Would Not Lower the Safety of the R2X b. An Exemption From the Requirement That an LSV Be Equipped With FMVSS No. 205-Compliant Windshield Would Not Lower the Safety of the R2X c. An Exemption From the Requirement That an LSV’s Backup Camera Meet the ‘‘Linger Time’’ Requirement of FMVSS No. 111 Would Not Lower the Safety of the R2X d. An Exemption From Portions of the FMVSS No. 111 ‘‘Field of View and Image Size Test Procedure’’ and ‘‘Image Response Time Test Procedure’’ Would Not Lower the Safety of the R2X VII. Nuro’s Requests for Exemptions From the LSV Mirror, Windshield, and Backup Camera ‘‘Linger Time’’ Requirements Are Granted Under Both the ‘‘Low-Emission Vehicle’’ (LEV) and ‘‘Equivalent Overall Safety’’ (EOS) Exemption Bases a. Findings Specific to the LEV Basis b. Findings Specific to the EOS Basis c. Granting Nuro’s Petition Is Consistent With the Public Interest and the Vehicle Safety Act VIII. Nuro’s Request for an Exemption From the Backup Camera ‘‘Deactivation’’ Requirement Is Moot IX. Other Issues Raised by Commenters a. Relevance of the Driving Capability of the R2X’s ADS b. ADS-Related Data Reporting c. Compliance With FMVSS Requirements Not Applicable to the R2X d. Cybersecurity e. Engagement With Local Authorities X. Number of Vehicles XI. Terms XII. Conclusion Appendix: Terms I. Executive Summary This document grants a petition submitted by Nuro Inc. (Nuro) for a temporary exemption of a vehicle from three requirements of FMVSS No. 500, Low-speed vehicles. Nuro’s vehicle, the R2X, is a highly automated (SAE Level 4 or L4), low-speed (25 mph maximum), electric-powered delivery vehicle.1 According to Nuro, the R2X is designed to carry exclusively cargo and operate without a human driver. Accordingly, the R2X does not have any occupant compartments, designated seating 1 See SAE International, J3016_201806: Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (Warrendale: SAE International, 15 June 2018), https://www.sae.org/standards/content/ j3016_201806/. PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 positions, or manual controls for driving the vehicle.2 Nuro seeks exemptions from various FMVSS that are designed to provide safety benefits for occupants. Since the R2X does not accommodate any occupants, Nuro argues that these FMVSS do not serve their intended functions in the R2X. Accordingly, Nuro has sought exemptions from these requirements. NHTSA has analyzed the request for exemption and is granting them in accordance with its exemption authority under the Vehicle Safety Act and its implementing regulations in part 555.3 Pursuant to the Vehicle Safety Act, NHTSA may grant an exemption from an FMVSS if NHTSA determines that such exemption is consistent with the public interest and the Act, and meets at least one of four additional bases for exemption, described further below.4 Nuro applied for its exemption on the basis that it ‘‘would make the development or field evaluation of a low-emission motor vehicle easier and would not unreasonably lower the safety level of that vehicle.’’ 5 NHTSA has determined to grant this petition under this basis. In addition, NHTSA believes that the Vehicle Safety Act provision allowing the agency to grant an exemption when ‘‘compliance with the standard would prevent the manufacturer from selling a motor vehicle with an overall safety level at least equal to the overall safety level of nonexempt vehicles’’ 6 would also be an appropriate basis for granting the exemption, based on the evidence provided in the application and in public comments, and given NHTSA’s institutional expertise as the federal agency vested with the responsibility for promoting motor vehicle safety. The three substantive requirements in FMVSS No. 500 from which the agency is granting an exemption are the exterior and/or interior mirror requirement (S5(b)(6)), the windshield requirement (S5(b)(8)), and the backup camera ‘‘Linger time’’ requirement (S5(b)(11)).7 2 The R2X is equipped with a ‘‘remote operation’’ system through which a remote operator can take over the driving functions of the R2X. Although remote operators presumably input driving commands to the R2X using some sort of manually operated set of controls from an offsite location, NHTSA understands the remote operator system to be a ‘‘fallback’’ safety feature and thus not a primary means of controlling the vehicle. 3 See 49 U.S.C. 30113; 49 CFR part 555. 4 49 U.S.C. 30113. 5 49 U.S.C. 30113(b)(3)(B)(iii). 6 49 U.S.C. 30113(b)(3)(B)(iv). 7 This provision requires that LSVs meet all of FMVSS No. 111, S6.2, ‘‘Rear visibility.’’ While exempted R2X vehicles are not required to comply with FMVSS No. 111, S6.2.4, ‘‘Linger time,’’ they are still required to comply with the rest of S6.2. E:\FR\FM\11FEN1.SGM 11FEN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices The agency is also granting Nuro an exemption from certain provisions of the backup camera test procedures in FMVSS No. 111 that cannot be performed due to the R2X’s unique design. NHTSA made its decision to grant Nuro’s petition after making several statutorily mandated agency findings, including its finding that exempting the R2X from three of the requirements in FMVSS No. 500 would not lower the safety of the R2X as compared to a compliant version of the vehicle— which, as described below, means that this finding is sufficient for the safety determinations required under both the ‘‘Low Emission Vehicle’’ (LEV) and the ‘‘equivalent overall safety’’ (EOS) bases. To examine the effects of the requested exemptions and make this finding, NHTSA compared two nearly identical versions of the same vehicle: A compliant version of the R2X 8 and an exempt, noncompliant R2X. This approach enabled the agency to make the statutorily required comparisons more concrete and understandable and to simplify and focus its analysis on the requirements from which an exemption is being sought and on the vehicle features that would be directly affected by an exemption. The question of whether an exemption would lower the safety of an exempt version of the R2X as compared to a compliant version of the vehicle turns on the very limited differences between those two versions of the R2X, which are only that the exempted R2X would not comply with the certain requirements described in this notice. Importantly, under the Vehicle Safety Act, manufacturers are permitted include any design feature they want on a vehicle so long as the vehicle conforms to the FMVSS, and the vehicle does not contain a defect that poses an unreasonable risk to safety. As discussed in more detail below, because NHTSA does not currently have in place FMVSS requirements that regulate Automated Driving System (ADS) driving capability, and NHTSA does not have any basis to believe that it poses an unreasonable risk to safety, no barrier prevents including such a system on a vehicle. Moreover, because LSVs (unlike most vehicle classes) are not required to have human-operated driving and signaling controls, nothing in the 8 Nuro has already produced a vehicle that appears to be an FMVSS compliant version of the R2X: Its model R1. As noted below, this vehicle has already been deployed for certain delivery services in Arizona. A discussion comparing the R1 and R2X, which includes a side-by-side visual depiction of the two vehicles, is included later in this document. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 FMVSS prevents a manufacturer from producing an LSV without manual controls that is operated exclusively by an ADS. Given that both an exempted and compliant R2X would have no occupants and would operate without a human driver, compliance with the three requirements from which Nuro seeks an exemption would not provide a safety benefit. First, the requirement for internal and external mirrors is meant to improve situational visibility for human drivers, who internalize information about the driving environment through direct or reflected line of sight. In a vehicle without manual controls that operates using an ADS, mirrors do not serve a safety purpose because the ADS perceives the driving environment using cameras and sensors that directly feed it information about the vehicle’s surroundings. Moreover, because exterior mirrors protrude from the side of the vehicle, they may act as a potential hazard to other road users in certain situations. Second, the requirement for a windshield made of compliant glazing material is meant to protect human occupants from intrusion, ejections, or laceration while ensuring driver visibility. In an occupantless vehicle that operates using an ADS, there are no human occupants for the glazing to protect, and, as we have already noted, visibility through the windshield is not a concern because the ADS obtains information about the driving environment through the use of cameras and sensors. Lastly, the requirement that a rearview camera image cease to be illuminated (i.e., ‘‘linger’’) after shifting from reverse is meant to avoid distraction of the human operator. Without a human driver, there is no risk of distraction. Further, by permitting the backup camera system to remain active in all driving situations, the ADS has more consistent access to information about the area immediately behind the vehicle, which may assist the ADS in performing the driving task.9 Based on its engineering expertise and the information available to it, NHTSA finds that exempting the R2X from these three requirements would result in a vehicle that is at least as safe as a compliant version of the R2X. NHTSA has also determined that an exemption would be consistent with the public 9 We note that Nuro also asked for an exemption from the backup camera ‘‘Deactivation’’ requirement (FMVSS No. 111, S6.2.5), and from certain portions of the FMVSS No. 111 test procedures for the ‘‘Field of View’’ and ‘‘Size’’ requirements (FMVSS No. 111, S6.2.1 and S6.2.2). NHTSA has deemed these requests moot for the reasons explained later in the document, so they will not be discussed extensively in the Executive Summary. PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 7827 interest and the Safety Act because, by allowing for the manufacture and commercial deployment of their desired design vehicle, an exemption would further the development of innovative technologies used in the R2X (most notably, its ADS), which could lead to safety, environmental, and economic benefits to the communities in which the R2X operates, and could eventually lead to benefits for other communities where ADS vehicles are deployed in the future. Moreover, an exemption would further the development and implementation of innovative business models, like Nuro’s delivery service, for putting those technologies to use. This determination is consistent not only with NHTSA’s exercise of its longstanding safety authority and expertise on motor vehicle issues, but also, with the broad authority that Congress vested in the Secretary of Transportation to grant exemptions in the public interest. The R2X will be the first ADS vehicle exempted under NHTSA’s general exemption authority, and, according to Nuro, will be deployed as part of a commercial operation that will involve frequent interaction with the public. Accordingly, the agency has taken efforts to ensure the vehicles operate in as safe a manner as a non-exempted vehicle. Specifically, NHTSA has determined that it is in the public interest to establish a number of reporting and other terms of deployment of the vehicles that will apply throughout the useful life of these vehicles—violation of which can result in the termination of this exemption. The agency also notes that it retains the full suite of its investigative and enforcement authorities with respect to Nuro’s vehicles and operations. II. Relevant Legal Authority and Regulations a. Statutory Requirements for Temporary Exemption Petitions The National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act), codified at Chapter 301 et seq., of title 49, United States Code, provides the Secretary of Transportation with broad authority to exempt motor vehicles from an FMVSS or bumper standard on a temporary basis, under specified circumstances, and on terms the Secretary deems appropriate. This authority is set forth at 49 U.S.C. 30113. The Secretary has delegated the authority for implementing this section to NHTSA.10 10 49 E:\FR\FM\11FEN1.SGM CFR 1.95. 11FEN1 7828 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices In exercising this authority, NHTSA must look comprehensively at the request for exemption and find that an exemption would be consistent with the public interest and with the objectives of the Vehicle Safety Act.11 In addition, NHTSA must make at least one of the following more-focused findings, which NHTSA commonly refers to as the ‘‘basis’’ for the exemption: (i) Compliance with the standard[s] [from which exemption is sought] would cause substantial economic hardship to a manufacturer that has tried to comply with the standard[s] in good faith; (ii) the exemption would make easier the development or field evaluation of a new motor vehicle safety feature providing a safety level at least equal to the safety level of the standard; (iii) the exemption would make the development or field evaluation of a low-emission motor vehicle easier and would not unreasonably lower the safety level of that vehicle; or (iv) compliance with the standard would prevent the manufacturer from selling a motor vehicle with an overall safety level at least equal to the overall safety level of nonexempt vehicles.12 NHTSA’s procedural regulations implementing these statutory requirements are codified at 49 CFR part 555, ‘‘Temporary Exemption from Motor Vehicle Safety and Bumper Standards.’’ The statute and implementing regulations provide the Secretary and, as delegated, NHTSA with significant discretion in making these required determinations.13 As the expert agency in automotive safety and the interpretation of its existing standards, NHTSA has significant discretion in making the safety findings required under these provisions. Further, the broad authority to determine whether the public interest and general goals of the Vehicle Safety Act will be served by granting the exemption allows the 11 49 U.S.C. 30113(b)(3)(A). U.S.C. 30113(b)(3)(B). 13 Cf. Geier v. American Honda Motor Co., 529 U.S. 861, 883 (2000) (explaining that, in the context of interpreting the Vehicle Safety Act’s preemption provisions, ‘‘Congress has delegated to DOT authority to implement the statute; the subject matter is technical; and the relevant history and background are complex and extensive,’’ and, thus, ‘‘[t]he agency is likely to have a thorough understanding of its own regulation and its objectives and is ‘uniquely qualified’ to comprehend the likely impact of state requirements,’’ concluding that, ‘‘[i]n these circumstances, the agency’s own views should make a difference.’’) (internal citations omitted). khammond on DSKJM1Z7X2PROD with NOTICES 12 49 VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 Secretary to consider many diverse effects of the exemption, including: The overall safety of the transportation system beyond the analysis required in the safety determination; how an exemption will further technological innovation; economic impacts, such as consumer benefits; and environmental effects. b. Low Speed Vehicles (LSVs) and FMVSS No. 500 NHTSA defines a low-speed vehicle (LSV) as ‘‘a motor vehicle, (1) [t]hat is 4-wheeled; (2) [w]hose speed attainable in 1.6 km [kilometers] (1 mile) is more than 32 kilometers per hour (20 miles per hour) and not more than 40 kilometers per hour (25 miles per hour) on a paved level surface, and (3) [w]hose GVWR [gross vehicle weight rating] is less than 1,361 kilograms (3,000 pounds).’’ 14 Unlike other vehicle categories that must meet a wide array of FMVSSs and other vehicle standards, LSVs are only required to meet a single standard: FMVSS No. 500, ‘‘Low-speed vehicles.’’ Currently, FMVSS No. 500 requires that LSVs be equipped with headlamps, stop lamps, turn signal lamps, taillamps, reflex reflectors, parking brakes, exterior and/or interior mirrors, a windshield constructed from FMVSS No. 205compliant glazing, seat belts, a vehicle identification number, and a rear visibility system that complies with S6.2 of FMVSS No. 111 (i.e., a backup camera). In addition, all electric LSVs manufactured on or after September 1, 2020 will be required to comply with FMVSS No. 141, ‘‘Minimum Sound Requirements for Hybrid and Electric Vehicles.’’ NHTSA created the LSV classification and established FMVSS No. 500 in June 1998 in response to safety concerns over the growing use of golf cart-sized, 4wheeled ‘‘Neighborhood Electric Vehicles’’ (NEVs) on public roads.15 In developing FMVSS No. 500, NHTSA determined that, given the speed and weight limitations of the LSV classification, and the closed or controlled environments in which LSVs typically operate (usually planned communities and golf courses), there was not a safety need to apply the full range of FMVSS to these vehicles. Moreover, at the time NHTSA was developing the LSV standard, some States had begun to enact laws limiting 14 49 15 63 PO 00000 CFR 571.3. FR 33194 (June 17, 1998). Frm 00116 Fmt 4703 Sfmt 4703 where and when speed-limited vehicles like LSVs could operate, and currently most States have enacted legal restrictions on where LSVs can operate.16 Accordingly, the safety equipment the that the agency determined should be required under FMVSS No. 500 is far more limited than what is required for other vehicle categories. III. Nuro’s Petition NHTSA received Nuro’s petition for a temporary exemption on October 23, 2018, seeking an exemption from three of the requirements that apply to LSVs: The exterior and/or interior mirror requirement (FMVSS No. 500, S5(b)(6)), the windshield requirement (FMVSS No. 500, S5(b)(8)), and the backup camera ‘‘Linger time’’ and ‘‘Deactivation’’ requirements (FMVSS No. 500, S5(b)(11); FMVSS No. 111, S6.2.4 & S6.2.5). In addition, Nuro requested an exemption from portions of the test procedures in FMVSS No. 111 that relate to the backup camera ‘‘Field of view’’ and ‘‘Size’’ requirements. Nuro submitted its petition under the basis that an exemption would make easier the development or field evaluation of a low-emission vehicle (LEV) and that an exemption would not unreasonably lower the safety of that vehicle. As described in Nuro’s petition, the vehicle for which Nuro requested an exemption, the ‘‘R2X,’’ would be an occupantless, electric LSV that is designed to be operated almost exclusively by an ADS. According to Nuro, the R2X would not be sold, but rather would be operated by Nuro in partnerships with grocery stores and other merchants to autonomously deliver goods to nearby customers. Nuro argued in its petition that provisions of FMVSS No. 500 from which it is seeking an exemption require the inclusion of safety features that do not serve a safety purpose on the R2X, due to the fact that the R2X is operated by an ADS and does not have any occupants. Moreover, Nuro argued that including these required features would reduce the safety of the R2X. Nuro’s arguments for its three exemption requests are summarized in the table below: 16 See ‘‘Summary of State Speed Laws, Twelfth Edition,’’ December 2013, DOT HS 811 769, available at https://www.nhtsa.gov/sites/ nhtsa.dot.gov/files/documents/summary_state_ speed_laws_12th_edition_811769.pdf. E:\FR\FM\11FEN1.SGM 11FEN1 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices Requirement from which an exemption is requested Exterior Mirrors, FMVSS No. 500, S5(b)(6). Windshield made from FMVSS No. 205-compliant glazing material, FMVSS No. 500 S5(b)(8). Backup Camera ‘‘Linger time’’ and ‘‘Deactivation’’ requirements, FMVSS No. 500 S5(b)(11); FMVSS No. 111 S6.2.4 & S6.2.5 17. Safety purpose of the requirement To provide the driver of the LSV with information about the driving environments to the rear. To prevent the ejection of vehicle occupants, and to ensure forward visibility for the driver. Linger time: To prevent the driver from being distracted by the rearview image when traveling in the forward direction. Deactivation: To allow deactivation of the image either when the driver modifies the view, or the vehicle direction selector is removed from the reverse position. In addition, while Nuro stated that the R2X would conform to the backup camera ‘‘Field of view’’ (FOV), ‘‘Size,’’ and ‘‘Response time’’ requirements (FMVSS No. 111, S6.2.1, S6.2.2, S6.2.3), Nuro requested an exemption from portions of the test procedures in FMVSS No. 111 related to those requirements, because the design of the R2X precluded those test procedure steps from being executed. Nuro provided an alternative test procedure that it argued would enable NHTSA to verify the R2X’s compliance with the FOV and Size requirements through the use of the vehicle’s remote operator system. Nuro supported its arguments with the analyses and documentation required under 49 CFR 555.6, which are discussed in our safety analysis below. Nuro stated in its petition that granting its exemption would be in the public interest and consistent with the Vehicle Safety Act because the R2X incorporates various design features that khammond on DSKJM1Z7X2PROD with NOTICES 17 As is explained later in this document, NHTSA has determined that Nuro’s exemption request from the ‘‘Deactivation’’ requirement (FMVSS No. 111, S6.2.5) is moot. Therefore, although this request is discussed in this summary of Nuro’s petition, it is not discussed in the agency’s safety analysis or findings. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 Nuro’s argument for why the safety purpose is not relevant to the R2X 18 The Vehicle Safety Act provides that, for aspects of vehicle performance that are not covered by an FMVSS, the only Federal restriction on the vehicle’s performance is that the vehicle cannot contain a defect that poses an unreasonable risk to safety. Because ADS driving capability is not regulated under the FMVSS, and LSVs are not required to have human-operated driving and signaling controls, no regulatory barrier prevents Nuro from deploying the R2X’s ADS on a fully compliant version of the vehicle. Moreover, given Nuro’s track record with on-road testing of its ADS systems, NHTSA does not have a basis to believe that the R2X’s ADS poses an unreasonable risk to safety. Frm 00117 Nuro’s argument for why compliance would be detrimental to the safety of the R2X The R2X’s ADS does not use Exterior mirrors increase pedestrian strike mirrors to perceive its surrisk, and interfere with the R2X’s pedesroundings for purposes of trian safety features such as rounded corperforming the driving task. ners. The R2X does not have occu- FMVSS No. 205-compliant glazing is both pants who need protection, heavy and rigid and must be held in place and the ADS does not reby a rigid frame, and so it would interfere quire a transparent windwith plans to provide a ‘‘front-end safety shield to perceive the drivsystem, including rounded contouring, softing environment in front of er materials, and a ‘crumple zone’ ’’ on exthe vehicle. empted vehicles. The R2X’s ADS is not a Because R2X’s ADS uses its rearview camhuman. It can process the eras during forward motion to gain a cominformation from all of its prehensive understanding of its environcameras simultaneously, rement and avoid collisions with vehicles or gardless of the direction of objects approaching from the rear, deactitheir aim, without distraction. vating the view to these cameras while in forward motion would decrease the vehicle’s safety. enable the ADS to operate reliably, and minimize safety risks that may occur if the ADS malfunctions or otherwise encounters a driving situation it cannot handle. Nuro also argued that enabling it to field test its ADS would lead to downstream environmental improvements and economic productivity. It is important to note that the most unusual characteristics of the R2X—its lack of occupants and autonomous operation—do not require an exemption to be included on the R2X, as there is nothing in the FMVSSs that preclude Nuro from manufacturing a fully compliant version of the R2X that includes these two novel design features.18 In fact, within two months of PO 00000 7829 Fmt 4703 Sfmt 4703 submitting its petition, Nuro began testing on public roads an occupantless, low-speed ADS vehicle that the company states it has certified as FMVSS-compliant. Nuro deployed this vehicle, the ‘‘R1,’’ in December 2018 as part of a grocery delivery testing program in partnership with a Kroger location in Scottsdale, Arizona. Based on Nuro’s descriptions in its public comment, NHTSA understands the R1 to have been an occupantless, low-speed ADS vehicle that has a very similar design to the R2X, except that the R1 was equipped with exterior mirrors, a windshield constructed out of FMVSS No. 205-compliant glazing, and a backup camera that meets the ‘‘Linger time’’ requirement of FMVSS No. 111, S6.2.4. (See Figures 1 and 2 below for a visual comparison of the R1 and R2X vehicles.) For purposes of NHTSA’s analysis of Nuro’s petition, NHTSA assumes that a compliant version of the R2X would also differ from an exempted R2X in that the compliant R2X would be equipped with these features. This assumption is reasonable because such equipment is required by law unless subject to an exemption. E:\FR\FM\11FEN1.SGM 11FEN1 7830 khammond on DSKJM1Z7X2PROD with NOTICES IV. Notice of Receipt NHTSA published its Notice of Receipt of Nuro’s exemption petition in the Federal Register on March 19, 2019.19 In addition to summarizing the petition, the Notice of Receipt posed 39 questions for the public on a variety of topics, including the appropriateness of the LEV exemption basis, the safety of the R2X, the performance of the R2X’s ADS, whether an exemption would be in the public interest, and potential terms or conditions that NHTSA may impose should the agency grant the petition. Given the novel issues raised by the fact that the R2X is an occupantless ADS vehicle, NHTSA provided the public with a 60-day comment period, instead of the 30 days normally provided for an exemption petition. In response to the Notice of Receipt, NHTSA received 24 comments from a variety of commenters, including trade associations, individual manufacturers, advocacy groups, and individuals. The trade associations that submitted comments were the Alliance of Automobile Manufacturers (the Alliance), the American Trucking Associations (ATA), the Consumer Technology Association (CTA), the Association for Global Automakers (Global), and the National Society of Professional Engineers (NSPE). NHTSA also received comments from the individual vehicle manufacturer Local Motors. The advocacy groups that submitted comments were the American 19 84 FR 10172. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 Automobile Association (AAA), the American Association of Motor Vehicle Administrators (AAMVA), Advocates for Highway Safety (Advocates), Center for Auto Safety (CAS), DEVCO, and Securing America’s Future Energy (SAFE). In addition, NHTSA received comments from Kroger, Inc., the Mercatus Center of George Mason University, the Center for Autonomous Vehicles and Sensor Systems, Edge Case Research, the Mayor of Scottsdale, Arizona, and the Scottsdale, Arizona Chief of Police. In addition, NHTSA received a comment from the petitioner itself. The major points raised by the commenters are briefly summarized below, and are discussed in greater detail in later sections of this document. The principal comments made by commenters who were generally critical of Nuro’s petition were: • The LEV basis is an inappropriate basis under which to consider Nuro’s petition because the purpose of that exemption basis is to encourage the development of low-emission propulsion technologies. • The petition did not include sufficient information about the ability of the ADS to perform the driving task (especially as compared to a human driver), the R2X’s Operational Design Domain (ODD), or the operational details of Nuro’s remote operator system. • The petition did not include documentation demonstrating the efficacy of some of the safety features Nuro describes in the petition, such as pedestrian ‘‘crumple zones.’’ PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 • The petition does not sufficiently address the issue of cybersecurity. • If NHTSA were to grant the petition, the agency should impose extensive reporting requirements on Nuro that include providing NHTSA and/or the public with information about ADS performance. These reporting requirements should last for the life of the vehicle. • Nuro should be required to coordinate extensively with local authorities in the communities in which the R2X will operate. The principal comments made by commenters who were generally favorable to Nuro’s petition were: • The LEV basis is an appropriate exemption basis under which to consider Nuro’s petition because the R2X meets the qualifications for being an LEV, and because one benefit of vehicles like the R2X is lower overall emissions. • The ability of the ADS to perform the driving task should not be considered as part of NHTSA’s safety analysis of Nuro’s petition, because the compliant version of the R2X against which NHTSA must compare an exempted R2X would also be equipped with an ADS. • The three requirements from which Nuro sought an exemption do not serve a safety purpose on a vehicle that is operated exclusively by an ADS. • If NHTSA were to deny the petition, this would effectively require Nuro to equip the R2X with extraneous equipment (i.e., mirrors and glazing material) that could decrease the safety of the vehicle. E:\FR\FM\11FEN1.SGM 11FEN1 EN11FE20.000</GPH> Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices • If NHTSA imposes terms that include mandatory data reporting, it should not be unreasonably broad, and should be limited to the two-year exemption period. NHTSA also received several comments that were either general discussions of the role of exemptions in the regulation of ADS vehicles, or previously published newspaper articles or academic papers that discuss automated vehicle policy generally. While the policy considerations and issues discussed in these comments are certainly relevant to NHTSA’s and the Department’s Automated Vehicle policy generally, they are not directly pertinent to the findings that NHTSA must make regarding Nuro’s specific petition, and thus are not extensively discussed in this document. However, we note that the agency shares some of the concerns some of the commenters raised about ADS safety, and has conditioned this exemption grant on terms that the agency believes will appropriately mitigate potential risk and ensure the agency can maintain adequate oversight of deployed R2X vehicles. Following the publication of the Notice of Receipt, at Nuro’s written request, NHTSA met with representatives of Nuro on April 11, 2019, at NHTSA headquarters.20 Nuro stated that it requested the meeting to provide the agency with an opportunity to improve the agency’s understanding of the R2X’s specifications and how it would be used. Nuro offered to participate in a more technical followup call, which took place on July 18, 2019. Both of these meetings clarified various operational and technical details about the R2X (e.g., the capacity of the vehicle’s propulsion battery), as well as some details about the operation of the vehicle’s ADS. The agency did not learn any new information relevant to its evaluation of Nuro’s petition. Finally, NHTSA held an additional call with Nuro on August 23, 2019, to request clarification on how Nuro intended to certify that the R2X complies with the portions of FMVSS No. 111 backup camera requirements from which Nuro did not seek an exemption. As Nuro did not seek an exemption for the performance requirements discussed in this call, the information NHTSA learned in this call was not germane to the agency’s decision to grant or deny the petition. NHTSA’s decision to grant Nuro’s petition is based entirely on public 20 NHTSA’s regulations entitle any interested person to, upon written request to the agency, appear informally before an appropriate official to discuss an exemption petition or an action taken in response to a petition. See 49 CFR 555.7(c). VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 information and views provided in the petition and public comments.21 V. Selection of Statutory Basis for Analyzing the Merits of the Petition NHTSA has determined that it is appropriate to consider Nuro’s petition under both the ‘‘Low-Emission Vehicle’’ (LEV) and ‘‘Equivalent overall safety’’ (EOS) exemption bases, and has decided to evaluate Nuro’s petition under both bases. Nuro submitted its petition for an exemption from FMVSS No. 500 under the LEV exemption basis, which authorizes NHTSA to grant an exemption if doing so ‘‘would make the development or field evaluation of a low-emission motor vehicle easier and would not unreasonably lower the safety level of that vehicle.’’ 22 NHTSA also sought comment on whether it would also be appropriate to consider Nuro’s petition under the ‘‘new safety feature’’ (‘‘NSF’’) 23 or ‘‘equivalent overall safety’’ (‘‘EOS’’) 24 exemption bases.25 The key substantive difference between the LEV basis and these other two bases is that LEV basis would allow for the deployment of a vehicle that lowers safety, so long as that lowering is not unreasonable. NHTSA received comments on the appropriateness of the LEV exemption basis from AAMVA, Advocates, Global, and SAFE. AAMVA and Advocates both argued that the LEV exemption basis may not be appropriate despite the R2X’s LEV status because the specific requirements from which Nuro requested an exemption are unrelated to the R2X’s electric propulsion system. According to AAMVA, the NSF basis would be preferable because the design features that are the subject of the exemption relate to the removal of the driver (although AAMVA does not explain why this makes the NSF basis preferable over EOS).26 Advocates did not express a view on what an appropriate basis would be, but did express concern that the LEV basis would allow for lowering the level of safety of the exempted vehicle, even if NHTSA did not find such a lowering to be unreasonable.27 Conversely, Global 28 and SAFE 29 argued that the LEV basis is appropriate 21 These discussions are described in a memorandum that can be found in the docket indicated in the header of this notice. 22 49 U.S.C. 30113(b)(3)(B)(iii) 23 49 U.S.C. 30113(b)(3)(B)(ii) 24 49 U.S.C. 30113(b)(3)(B)(iv) 25 See Notice of Receipt, Question 3. 26 See NHTSA–2019–0017–0025. 27 See NHTSA–2019–0017–0026. 28 See NHTSA–2019–0017–0022. 29 See NHTSA–2019–0017–0016. PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 7831 for Nuro because vehicles like the R2X could potentially reduce emissions by reducing the number of trips made in conventional (i.e., internal combustion engine) vehicles, and by performing the driving task more efficiently. In addition, SAFE notes that NHTSA has previously granted petitions on the LEV basis for exemptions that are not directly related to the development of a new low-emission propulsion system, and that the petitioners in those cases argued that their primary purpose for seeking an exemption was either the development of low-emission propulsion technologies 30 or to allow a vehicle with a new low-emission propulsion technology to be brought to market more quickly or cheaply.31 First, NHTSA has determined that the LEV basis is appropriate for Nuro’s petition. Based upon its interpretation of both the Vehicle Safety Act and part 555, and consistent with prior agency grants of exemption petitions, NHTSA has determined to grant the petition under the LEV basis. The Vehicle Safety Act requires that NHTSA find that the exemption is in the public interest and consistent with the Vehicle Safety Act and (1) that the vehicle is an LEV, (2) that an exemption would make easier the development or field evaluation of the vehicle, and (3) that an exemption would not unreasonably lower the safety of the vehicle. It does not state that NHTSA must find a nexus between the exemption and the LEV status of the exempted vehicle.32 Further, part 555 also does not explicitly require this nexus.33 The agency notes that not 30 E.g., Toyota Motor North America, Inc.; Grant of Petition for Temporary Exemption from an Electrical Safety Requirement of FMVSS No. 305, 80 FR 101. 31 E.g., Greenkraft Inc.; Grant of Application for a Temporary Exemption from FMVSS No. 108, 80 FR 12057. 32 We note, however, that it is within NHTSA’s discretion to determine what constitutes an ‘‘unreasonable’’ lowering of vehicle safety. While NHTSA does not need to make this determination here because we have found no decrease in safety, the innovativeness and emission-reducing potential of the low emission technology in the vehicle may be a factor in considering whether any lowering of safety is reasonable or not, as a more innovative technology may have greater environmental benefits than a more established technology. On the other hand, established technologies that have been mass produced for years and have widespread availability, such as those underpinning battery electric vehicles, cannot reasonably justify much, if any, lessening of safety. 33 The agency acknowledges that part 555.2 explains that the purpose of the exemption process is to ‘‘provide a means by which manufacturers of motor vehicles may obtain temporary exemptions . . . on the basis of . . . facilitation of the development of . . . low-emission engine features,’’ and that one of the required submissions demonstrating safety under part 555.6(2)(i) is, ‘‘[a] detailed description of how the motor vehicle E:\FR\FM\11FEN1.SGM Continued 11FEN1 7832 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES requiring a nexus actually incentivizes that more vehicles with advanced technologies be designed with low emission technologies, even off the shelf technologies, which furthers the overarching goal of allowing more LEVs on the roads. Finally, granting an exemption under this basis is consistent with the agency’s past practice in its earlier grants to both Toyota and Greenkraft, as cited by SAFE. We also agree with AAMVA and Advocates that, since innovation related to safety and mobility is the central focus of Nuro’s petition, the agency may also consider the petition under the EOS or NSF ground. Nuro, in its comments, expressed openness to being considered under the EOS basis instead of the LEV, though Nuro did not amend its application as part of these comments.34 For these reasons, we have considered whether the petition should also be granted under the NSF or EOS bases. As between the NSF and EOS bases, NHTSA has determined that the EOS basis is more appropriate than the NSF basis here. Although it is possible that an exemption could make easier the development or field testing of a new (i.e., innovative) safety feature, either the R2X’s ADS or one of the other features described in the application (e.g., the pedestrian crash protection systems), those technologies are not intended to provide a level of safety equivalence compliance with FMVSS No. 500, which does not contemplate ADS driving competence or pedestrian safety. Rather, those features are intended to improve the safety of aspects of performance that are not regulated under FMVSS No. 500. Because the NSF basis limits the scope of the agency’s safety analysis to how an exemption would impact safety solely in terms of performance under an individual standard, whereas the EOS basis allows NHTSA to consider aspects of a vehicle’s safety performance, the EOS basis would allow the agency to weigh broader considerations of safety that may not be captured at the individual standard level. equipped with the low-emission engine would, if exempted, differ from one that complies with the standard.’’ NHTSA, though, does not believe that either of the provisions require a nexus, but simply reflect a general purpose of the requirement and information that should be submitted if relevant. In all events, the language of the governing statute controls, as discussed above. 34 See NHTSA–2019–0017–0023. On page 3, Nuro states: ‘‘We believe the information in the petition, as supplemented in these comments, supports a determination under 49 U.S.C. 30113(b)(3)(B)(iv) that R2X has an overall safety level at least equal to the overall safety level of nonexempt vehicles, and would not object if the Department chose to grant the petition on that basis.’’ VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 For these reasons, NHTSA has decided to evaluate Nuro’s petition under both the LEV and EOS exemption bases. VI. Safety Analysis In order to make the statutorily required safety findings to grant an exemption under either the LEV or EOS basis, NHTSA must first determine whether the level of safety of an exempted vehicle would be lower than that of a compliant vehicle. If, based on this analysis, NHTSA finds that an exemption would not lower overall safety of the vehicle, NHTSA is permitted to grant the petition under both exemption bases. Thus, if NHTSA determines that an exemption would not lower the safety of the vehicle (which would obviate the need under the LEV basis to make the second finding of whether safety is unreasonably lowered), the entire safety analysis under the EOS and LEV bases would be identical. NHTSA’s analysis would only diverge under the two bases if NHTSA finds that safety would be lowered, in which case the agency must deny the petition under the EOS basis, and may only grant the petition under the LEV basis upon finding that an exemption would not unreasonably lower the safety of the vehicle.35 Because the mirror, windshield, and backup camera ‘‘Linger time’’ requirements are discrete aspects of vehicle performance, we discuss them individually in separate subsections below. Note that, because NHTSA has deemed moot Nuro’s request for exemptions from the backup camera ‘‘Deactivation’’ requirement, it is not included our safety analysis. Rather, the reasons we deemed this request moot are explained in a later section. a. An Exemption From the Requirement That an LSV be Equipped With Exterior and/or Interior Mirrors Would Not Lower the Safety of the R2X NHTSA has determined that an exemption from the requirement that LSVs be equipped with exterior and/or interior mirrors would not lower the safety of the R2X, and in fact may incrementally increase the safety of the R2X, because mirrors would not serve a safety-related purpose on an occupantless LSV operated by an ADS, and the presence of protruding exterior 35 We note that NHTSA has determined that the other two findings NHTSA must make for both bases as part of its evaluation of Nuro’s petition— whether granting the exemption would be in the public interest and consistent with the Vehicle Safety Act—are identical regardless of the exemption basis. As these are not safety findings, they are not discussed in this section. PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 mirrors on such a vehicle may increase strike risk for pedestrians and other vulnerable road users. FMVSS No. 500, S5(b)(6) requires that LSVs be equipped with an ‘‘exterior mirror mounted on the driver’s side of the vehicle and either an exterior mirror mounted on the passenger’s side of the vehicle or an interior mirror.’’ Nuro argued in its petition and its public comment that, because the safety purpose of these mirrors is to enable a human driver to observe objects to the rear of the vehicle, the mirror serves no safety function on the R2X. First, according to Nuro, the ADS uses an array of sensors to detect objects behind the vehicle. Moreover, Nuro states that mirrors serve no auxiliary safety purpose for people outside of the vehicle, and their omission reduces the risk of striking pedestrians and lowers the mass of the vehicle. Commenters who discussed the mirror requirement agreed with Nuro that exterior mirrors did not serve a safety function on the R2X. The Alliance,36 Local Motors,37 and the Scottsdale, Arizona Chief of Police 38 all state that the three safety features for which Nuro has requested an exemption do not serve a functional purpose on an ADS vehicle like the R2X. CTA stated in its comment that if NHTSA were to deny Nuro’s exemption, the agency would effectively require Nuro to add what CTA terms ‘‘extraneous equipment’’ that would likely raise the risk and severity of a pedestrian strike.39 NHTSA agrees with Nuro and the commenters that that mirrors do not serve a safety function on a vehicle with no occupants that is operated by an L4 ADS, since the ADS perceives the driving environment using a suite of sensors that do not rely on the mirrors. Further, NHTSA has concluded that the fact that the mirrors protrude from the vehicle means that they could potentially increase the risk of injury to pedestrians or cyclists, however incrementally and thus concurs with Nuro’s assertion in the petition about this potential benefit.40 Moreover, we note that ancillary benefits that mirrors provide, such as providing a warning to 36 See NHTSA–2019–0017–0020. NHTSA–2019–0017–0017. 38 See NHTSA–2019–0017–0019. 39 See NHTSA–2019–0017–0015. 40 Although the mirrors on LSVs are not required to meet the performance criteria in FMVSS No. 111, NHTSA implicitly acknowledges through that standard that outside mirrors do present some level of safety hazard to pedestrians, because the standard requires that outside mirrors be free of ‘‘sharp points or edges that could contribute to pedestrian injury.’’ FMVSS No. 111, S5.2.1. We see no reason why outside mirrors on LSVs would not also present a pedestrian strike risk. 37 See E:\FR\FM\11FEN1.SGM 11FEN1 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices vehicle occupants about hazards (such as approaching cyclists) when opening the vehicle door, are not a concern in a vehicle with no occupants. Therefore, the removal of said mirrors would, at worst, have no impact on the overall level of safety of the vehicle. khammond on DSKJM1Z7X2PROD with NOTICES b. An Exemption From the Requirement That an LSV be Equipped With FMVSS No. 205-Compliant Windshield Would Not Lower the Safety of the R2X NHTSA has determined that an exemption from the requirement that LSVs be equipped with a windshield constructed from FMVSS No. 205compliant glazing materials would not lower the safety of the R2X because a compliant windshield would not serve a safety-related purpose on an occupantless LSV operated by an ADS, due to the fact that a windshield is not necessary to assure (human) driver visibility, nor is it needed to protect occupants in a crash. FMVSS No. 500, S5(b)(8) requires that LSVs be equipped with ‘‘a windshield that conforms to the Federal motor vehicle safety standard on glazing materials (49 CFR 571.205).’’ FMVSS No. 205, ‘‘Glazing materials,’’ is an equipment standard for glazing materials (i.e., glass) used in vehicles to both ensure driver visibility and to minimize the risk of occupants being ejected from the vehicle in a crash. In its petition, Nuro argued that an FMVSS No. 205-compliant windshield would not serve a safety need on the R2X because (1) the R2X would not have occupants, so there is no risk that human occupants could be injured by an impact with glazing or ejected from the R2X, and (2) the R2X uses an ADS to perform the driving task, which does not require a transparent windshield to observe the driving environment. Nuro further argued that removing the windshield would, in fact, improve the safety of the R2X because a windshield constructed out of FMVSS No. 205compliant glazing could injure pedestrians in a collision due to its rigidity (if the glazing does not break), or due to the harm that could result should the glazing shatter. Nuro also argues that equipping the R2X with a compliant windshield would interfere with the operation of the R2X’s pedestrian ‘‘crumple zones,’’ which are designed to reduce pedestrian injuries in a crash, because equipping the R2X with a compliant windshield would necessitate a more rigid design. Nuro notes that, while the R2X would not be equipped with a windshield, the front of the vehicle will be equipped with a ‘‘plate’’ that resembles the appearance of VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 a windshield but is not constructed out of compliant glazing, and which deforms to provide pedestrian/cyclist protection in case of a crash. Nuro stated that this ‘‘plate’’ will serve the windshield ancillary safety function of providing other road users with a visual cue for the front of the vehicle (and thus, its direction of movement). Commenters generally did not dispute Nuro’s argument that an FMVSS No. 205-compliant windshield would not serve a safety purpose on a vehicle without occupants. The Alliance 41 and Local Motors 42 explicitly agreed with Nuro’s analysis that a windshield would not serve a safety purpose, and CTA stated that, if NHTSA were to deny Nuro’s exemption, it would effectively require Nuro to add what CTA terms ‘‘extraneous equipment’’ that would likely raise the risk and severity of a pedestrian strike.43 While Advocates 44 and AAMVA 45 did not dispute Nuro’s argument that a windshield was not necessary, they expressed concern that Nuro did not provide sufficient information to assess the effectiveness of the R2X’s pedestrian ‘‘crumple zones’’ and rounded edges for mitigating pedestrian injuries (though it should be noted that FMVSS No. 500 does not contain performance requirements for pedestrian injury mitigation).46 The Alliance noted that front-end stiffness of LSVs is not regulated under FMVSS No. 500. In its comment, Nuro explained further why it believes that not equipping the R2X with an FMVSS No. 205-compliant windshield will increase the safety of the R2X.47 According to Nuro, the R2X would require very sturdy A-pillars to support the weight of an FMVSS No. 205-compliant windshield, which make it necessary that the front outboard corners of the vehicle (which would support the windshield) be rigid. Thus, an R2X that complies with the windshield requirement could not incorporate the front-end pedestrian ‘‘crumple zone’’ crash mitigation feature described in its 41 See NHTSA–2019–0017–0020. NHTSA–2019–0017–0017. 43 See NHTSA–2019–0017–0015. 44 See NHTSA–2019–0017–0026. 45 See NHTSA–2019–0017–0025. 46 AAMVA also raised the concern that NHTSA should ensure that the material used for the front end of the R2X would keep cargo from being ejected in a crash at least as well as an FMVSS No. 205compliant windshield. However, NHTSA notes that the R2X does not appear to be designed in such a way that a windshield would be the only, or even the primary, barrier separating the cargo compartments from the outside. See NHTSA–2019– 0017–0023. 47 See NHTSA–2019–0017–0023. 42 See PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 7833 petition. Nuro states that, if exempted, the R2X’s A-pillars would not need to support as much weight, so they could be designed to be deformable in a crash, which would allow the front end of the vehicle to absorb impact energy at the sides as well as in the center. In addition, Nuro states that the R2X voluntarily complies with both FMVSS No. 305, ‘‘Electric-powered vehicles: electrolyte spillage and electrical shock protection,’’ (49 CFR 571.305) 48 and the Bumper Standard (49 CFR part 581). NHTSA has concluded that an exemption from the windshield requirement would not lower the level of safety of the R2X because the safety concerns that the windshield addresses—protecting occupants from ejection and intrusion, and ensuring occupants (particularly a human driver) can see the driving environment—are not present in the R2X, due to its lack of occupants and its operation by an ADS that relies on cameras and sensors instead of a human driver.49 Accordingly, not equipping the R2X with a compliant windshield would, at a minimum, have no net safety impact on the R2X. We note that NHTSA’s determination that an exemption from the windshield requirement would not lower the safety of the R2X does not rely on the effectiveness of its pedestrian ‘‘crumple zones’’ or other safety features because, as Advocates and others have noted, Nuro has not provided documentation to support the effectiveness of these features. While NHTSA encourages manufacturers to include additional safety features that are not required under the FMVSS, the lack of data to support the effectiveness of these features precludes the agency from considering the safety impact of these features in its safety finding. 48 FMVSS No. 305 requires that electric vehicles meet certain requirements relating to electrical safety after multiple types of barrier crashes that the standard requires to be conducted at speeds that exceed 25 mph, the maximum speed for an LSV. See, e.g., FMVSS No. 305, S6.1. However, these barrier crashes are typically performed using a tow cable to propel the vehicle (as opposed to the vehicle’s own propulsion system), so it would be possible to run these tests on an LSV like the R2X. We note that Nuro does not state whether ‘‘compliance’’ with FMVSS No. 305 means that the R2X would meet the standard’s performance criteria after being crashed at the R2X’s maximum speed of 25 mph, or after being crashed at the higher speeds articulated in the standard’s test procedures. 49 We assume that Nuro has designed the R2X so that the sensors used by the ADS are not obstructed by whatever material is used to cover the front of the vehicle in place of FMVSS No. 205-compliant glazing. E:\FR\FM\11FEN1.SGM 11FEN1 7834 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES c. An Exemption From the Requirement That an LSV’s Backup Camera Meet the ‘‘Linger Time’’ Requirement of FMVSS No. 111 Would Not Lower the Safety of the R2X NHTSA has determined that an exemption from backup camera ‘‘Linger time’’ requirement (FMVSS No. 111, S6.2.4) would not lower the safety of the R2X because the safety concern underlying the linger time requirement—driver distraction—does not exist for an occupantless LSV operated by an ADS. FMVSS No. 500, S5(b)(11) states that LSVs ‘‘shall comply with the rear visibility requirements specified in paragraphs S6.2 of FMVSS No. 111.’’ One of the requirements that falls under FMVSS No. 111, S6.2.4, limits the duration of the system’s ‘‘Linger time,’’ which is the period in which a rearview image continues to be displayed by the backup camera system after the vehicle’s transmission has been shifted out of reverse gear. Per S6.2.4, the rearview image produced by the backup camera system ‘‘shall not be displayed after the backing event has ended.’’ NHTSA explained in the final rule establishing the backup camera requirement that the safety justification for the linger time restriction was the possibility that a driver would be distracted by a rearview image.50 FMVSS No. 111, S6.2.4 currently requires that the ‘‘Linger time’’ period end at the end of the ‘‘backing event.’’ 51 In its petition, Nuro argued that the ‘‘Linger time’’ requirement does not serve a safety purpose on the R2X because the safety risk it is intended to mitigate against—the possibility that a human driver would be distracted by the rear visibility image when traveling in the forward direction—is not a concern for the R2X, since the R2X uses an ADS that is not susceptible to distraction. Nuro further argues that an exemption from the ‘‘Linger time’’ requirement would, in fact, improve the safety of the R2X, as it would eliminate a condition in which the R2X’s rearfacing camera and sensors shut off, which Nuro says has the effect of partially blinding the ADS. NHTSA agrees with Nuro that distraction is unlikely to be a concern for the R2X’s ADS, which is not a human and thus would not be 50 79 FR 19177, 19219. No. 111 defines the ‘‘backing event’’ as an amount of time which starts when the vehicle’s direction selector is placed in reverse, and ends at the manufacturer’s choosing, when the vehicle forward motion reaches: (a) A speed of 10 mph, (b) a distance of 10 meters traveled, or (c) a continuous duration of 10 seconds, whichever the manufacturer chooses. FMVSS No. 111, S4. 51 FMVSS VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 susceptible to cognitive distraction.52 And we see no reason why permitting the ADS to use an additional source of information about the driving environment would reduce the safety of the R2X. d. An Exemption From Portions of the FMVSS No. 111 ‘‘Field of View and Image Size Test Procedure’’ and ‘‘Image Response Time Test Procedure’’ Would Not Lower the Safety of the R2X NHTSA has determined that an exemption from the provisions in the FMVSS No. 111 ‘‘Field of view and image size test procedure’’ relating to fuel tank loading (S14.1.2.2), driver’s seating position (S14.1.2.5), and steering wheel adjustment (S14.1.7); and an exemption from the provisions of the FMVSS No. 111 ‘‘Image response time test procedure’’ relating to the driver’s door and activation of the starting system (S14.2(a)–(c)); would not lower the safety of the R2X because the R2X’s backup camera would still be required to produce a rearview image that meets the substantive performance requirements for ‘‘Field of view’’ (S6.2.1),’’Size’’ (S6.2.2), and ‘‘Response time’’ (S6.2.3). While Nuro states in its petition that the R2X meets these substantive requirements—and thus meets the minimum level of performance established by the standard—Nuro requested an exemption based on language in a 2016 Chief Counsel’s interpretation letter issued to Google in 2016.53 Nuro cited and quoted language from NHTSA’s letter to Google in making this request for an exemption. Nuro stated: ‘‘Previously, the Department has interpreted ‘driver’ and ‘operator’ in FMVSS No. 111 as referring to the self-driving system in cases of autonomous vehicles. However, in its letter to Google, the Department noted the need for a testing procedure to satisfy itself that the images provided to the self-driving system meet the requirements for field of view, image size, timing, and durability.’’ 54 In its discussion of FMVSS test procedures, NHTSA’s letter to Google explained: ‘‘As self-driving technology moves beyond what was envisioned at the time when standards were issued, 52 The specific distraction that we discussed in the backup camera final rule—the prolonged illumination of the required image at night—would not be an issue for the R2X, since the ADS does not rely on an illuminated display to perceive the rearview image. 53 See Letter from P. Hemmersbaugh, NHTSA, to C. Urmson, Google (Feb. 4, 2016), https:// www.nhtsa.gov/interpretations/google-compiledresponse-12-nov-15-interp-request-4-feb-16-final. 54 See NHTSA–2019–0017–0002, at 17 (footnote omitted). PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 NHTSA may not be able to use the same kinds of test procedures for determining compliance.’’ 55 The letter explained that ‘‘since the [Vehicle] Safety Act creates a self-certification system for compliance, NHTSA’s verification of a manufacturer’s compliance . . . is based on our established test procedures.’’ 56 Although the letter recognized that test procedures are for NHTSA’s use in compliance testing, the letter also stated that ‘‘in order for NHTSA to interpret a standard as allowing certification of compliance by a vehicle manufacturer, NHTSA must first have a test procedure or other means of verifying such compliance.’’ 57 To enable Google to certify its vehicles in the absence of appropriate test procedures, the agency suggested that Google may seek exemptions, as Nuro noted in its petition.58 NHTSA notes that the 2016 interpretation letter to Google diverged, without explanation, from NHTSA’s longstanding position that manufacturers are not required to certify compliance based on NHTSA’s FMVSS test procedures.59 While beyond the 55 Letter from P. Hemmersbaugh, NHTSA, to C. Urmson, Google (Feb. 4, 2016), https:// www.nhtsa.gov/interpretations/google-compiledresponse-12-nov-15-interp-request-4-feb-16-final. 56 Id. 57 Id. 58 See NHTSA–2019–0017–0002, at 13. 59 NHTSA has expressed this concept in both rulemaking and letters of interpretation going back several decades. See, e.g., 76 FR 15902, 15905 & 08 (Mar. 22, 2011) (explaining that ‘‘manufacturers are not required to test their products in the manner specified in the relevant safety standard, or even to test the product at all, as their basis for certifying that the product complies with all relevant standards. A manufacturer may evaluate its products in various ways to determine whether the vehicle or equipment will comply with the safety standards and to provide a basis for its certification of compliance. Depending on the circumstances, the manufacturer may be able to base its certification on actual testing (according to the procedure specified in the standard or some other procedure), computer simulation, engineering analysis, technical judgment or other means . . . manufacturers can use their judgment, including engineering or technical judgment, to certify vehicles. Testing, as provided in the FMVSS, is not required as a matter of law to certify a vehicle. Instead, sound judgment may be used.’’) (footnote omitted); 36 FR 5856 (Mar. 30, 1971) (‘‘Manufacturers have the responsibility of ensuring, by any methods that constitute due care, that their products meet the requirements at the stated level. Normally this is done by setting their own test conditions slightly on the ‘adverse side’ of the stated level.’’); Letter from A. Cooke, NHTSA, to K. Manke, Dakota Manufacturing (Apr. 15, 2008), https://isearch.nhtsa.gov/files/07005971as%20underride%20guards.htm (‘‘Keep in mind that the test procedures in FMVSS No. 223 describe how NHTSA will test guards for compliance with the standard’s requirements, and are not binding upon guard manufacturers. A manufacturer is not required to use the standard’s procedures when certifying compliance with the standard.’’); Letter from E. Jones, NHTSA, to D. Cole, Nat’l Van Conversion Ass’n, Inc. (Nov. 1, E:\FR\FM\11FEN1.SGM 11FEN1 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices scope of this notice, NHTSA intends to clarify the application of test procedures in a subsequent notice.60 However, prior to revisiting this issue, NHTSA is considering Nuro’s request for an exemption from provisions of the test procedures on its merits.61 Nuro notes that the R2X is an electric vehicle and does not have a gas tank that can be fully loaded with fuel—an express requirement of the FMVSS No. 111 test procedures—and, pursuant to the Google interpretation described above, is therefore incapable of being certified as compliant with the standard. Similarly, because of the R2X’s occupantless design and exclusive ADS operation, the vehicle is not equipped with a driver’s seat or a display screen, conventional vehicle. Put another way: An exemption from the test procedures would not, in any way, permit Nuro to equip the R2X with a subpar backup camera system; rather it enables Nuro to demonstrate that the R2X’s backup camera system transmits to the ADS the visual information that would be needed to meet the minimum performance criteria in FMVSS No. 111, even if the test procedures in FMVSS No. 111 cannot be performed using the R2X. As part of its exemption request, Nuro provided suggestions for how NHTSA could modify the FMVSS No. 111 test procedures to accommodate the R2X’s unique design: Required test condition Reason it cannot be performed Nuro’s suggested modification S14.1.2.2, ‘‘Fuel tank loading’’ ........................... Conduct the test with the battery at full charge capacity. S14.7, ‘‘Steering wheel adjustment’’ .................. The R2X is an electric vehicle that runs on a charge in a battery, not on fuel in a fuel tank. The R2X has no driver’s seat, or designated seating position of any kind. The R2X has no steering wheel ...................... S14.2, ‘‘Image response time test procedure’’ .. The R2X has no driver’s door to open or close S14.1.2.5, ‘‘Driver’s seat positioning’’ ................ khammond on DSKJM1Z7X2PROD with NOTICES which means that NHTSA is not able to independently verify this compliance using the test procedures in FMVSS No. 111.62 An exemption from the test procedure provisions that require manual operation by a human driver to execute would not permit Nuro to equip the R2X with a backup camera system that, if installed on a conventional vehicle, would produce a rearview image that fails to comply with FMVSS No. 111; rather, it permits Nuro to certify the R2X’s rearview image, which is transmitted directly to the R2X’s ADS during normal operation, would be able to meet the substantive requirements for field of view, size, and response time if it were displayed on a screen in a 7835 Treat a remote operator’s seat as the driver’s seating position. Conduct the test with the wheels pointed in the forward direction, as would be consistent with the test state in the standard. Perform the test procedure using the cargo compartment doors, which are the primary method for accessing the interior of the R2X. Given the design differences between the R2X and a typical LSV, NHTSA has determined that Nuro’s proposed modifications to the FMVSS No. 111 test procedures are reasonable, since they would condition the R2X in the same way as would the test procedures in the standards if applied to a conventional vehicle. Most commenters did not discuss whether NHTSA should grant Nuro’s request for an exemption from the FMVSS No. 111 test procedures, or their views on the adequacy of Nuro’s suggested modifications. The only comment on this subject was from AAMVA, which stated that it was ‘‘skeptical’’ of what is meant by treating the remote operator seat as a driver’s seating position. We think that Nuro’s suggestion to use the remote operator as a stand-in for the driver, for purposes of compliance certification, is reasonable. The purpose of the FMVSS No. 111 ‘‘Field-of-view,’’ ‘‘Size,’’ and ‘‘Response time’’ requirements are to ensure that the image displayed communicates information about the area behind the vehicle to the driver in a format that the driver is able to understand from the start of the backing event. If the rearview image meets the ‘‘Field of view,’’ ‘‘Size,’’ and ‘‘Response time’’ criteria when viewed by a remote operator who is located a similar distance from the rearview image screen as would be a human driver in a conventional vehicle, NHTSA believes this would be sufficient to demonstrate that Nuro exercised reasonable care in certifying the R2X because it indicates that the ADS is receiving the same information that a human driver would receive from the backup camera system in a conventional vehicle, and that this information is being transmitted at the start of the backing event. Similarly, we believe that Nuro’s suggestion that it perform test procedures with a fully charged battery in lieu of a fully-loaded gas tank, for purposes of compliance certification, is reasonable. Advocates claimed that the act of applying a vehicle’s brakes to prevent a back over crash is an integral part of the safety purpose of the backup camera, and that NHTSA should therefore incorporate into its analysis whether the R2X would appropriately brake in response to an object in the backup camera zone. We do not agree with Advocates that FMVSS No. 111 extends to how the vehicle must react in response to the presence of an object behind the vehicle. Although Congress enacted the K.T. Safety Act (the statute that mandated NHTSA to create the backup camera requirement) to reduce back over crashes, FMVSS No. 111 requires that the driver be provided with information that would enable the driver to take action to avoid a back over 1988), https://isearch.nhtsa.gov/files/3140o.html (‘‘I would like to point out that manufacturers are not required by Standard No. 302 to test the flammability of their vehicles in only the manner specified in the standard. The standard only sets the procedure that the agency will use in its compliance testing.’’). 60 NHTSA believes that this issue is more appropriately addressed in a separate Federal Register notice, rather than in this notice addressing a specific petition from a specific manufacturer. 61 NHTSA notes that under its prior, longstanding position that manufacturers are not required to certify compliance based on NHTSA’s FMVSS test procedures, Nuro’s request for an exemption from provisions of the test procedures would likely have been considered moot. 62 Note that FMVSS No. 111 does not require that LSVs be equipped with a display screen; it only requires that the LSV produce a ‘‘rearview image’’ that meets the criteria of S6.2. While most conventional vehicles with human drivers comply with this requirement through the use of a screen on which the rearview image is displayed, the R2X does not have such a screen because, since it cannot be operated by a human driver, such a screen is unnecessary. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 E:\FR\FM\11FEN1.SGM 11FEN1 7836 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices crash.63 Specifying appropriate performance requirements for ADS brake activation would require significant research that is not feasible for purposes of this exemption, applicable to a limited number of vehicles. NHTSA notes, however, that Nuro, like all motor vehicle manufacturers, must safeguard against safety-related defects.64 NHTSA would not hesitate to exercise its defect authority should information indicate that an ADS does not appropriately brake in response to the presence of objects in its vicinity. NHTSA also mitigates any potential risk through the limited number of vehicles that can be produced pursuant to this exemption, and through the terms and conditions described below. VII. Nuro’s Requests for Exemptions From the LSV Mirror, Windshield, and Backup Camera ‘‘Linger Time’’ Requirements Are Granted Under Both the ‘‘Low-Emission Vehicle’’ (LEV) and ‘‘Equivalent Overall Safety’’ (EOS) Exemption Bases Based on the contents of Nuro’s public petition and the comments received in response to the Notice of Receipt, NHTSA has made the findings required to grant Nuro’s petition for an exemption from the mirror, windshield, and backup camera ‘‘Linger time’’ requirements under both the LowEmission Vehicle basis and the Equivalent Overall Safety basis. a. Findings Specific to the LEV basis khammond on DSKJM1Z7X2PROD with NOTICES i. The R2X Is a Low-Emission Vehicle A vehicle is considered a lowemission vehicle for the purposes of § 30113 of the Vehicle Safety Act if it emits air pollutants significantly below the standards for new vehicles applicable to the vehicle set under § 202 of the Clean Air Act. Since the R2X is an electric vehicle and would not emit any such pollutants, it is a low-emission vehicle under § 30113. This issue was not contested in the public comments. Further, as discussed above, there is no need for the agency to find a nexus 63 NHTSA considered this technology as part of the rulemaking that established the backup camera requirement. In the Final Rule on the subject, NHTSA acknowledged that ‘‘it may be possible that automatic braking or other future systems offer comparable or greater protection to the public without the use of a rearview image,’’ but noted that the agency was ‘‘not currently aware of any established, objective, and practicable way of testing such systems to ensure that they offer a minimum level of protection to the public.’’ 79 FR 19178, 19203 (Apr. 7, 2014). NHTSA has not yet taken action to add an automatic braking element to the backup camera requirements in FMVSS No. 111. 64 See 49 U.S.C. 30112(a)(3), 30118–20. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 between the fact that the vehicle is an LEV and the reason the vehicle is noncompliant. ii. An Exemption From the Mirror, Windshield, Backup Camera ‘‘Linger Time’’ Requirements, and Portions of the Backup Camera Test Procedures Relating to Rearview Image FOV, Size, and Response Time, Would Not Unreasonably Lower the Safety Level of the R2X Given that an exemption from the mirror, windshield, and backup camera ‘‘Linger time’’ requirements would not lower the level of safety of the R2X, NHTSA finds that an exemption would not unreasonably lower the safety of the R2X as compared to that of a compliant R2X. In addition, NHTSA finds that, because an exemption from the FMVSS No. 111 test procedure provisions relating to fuel tank loading (S14.1.2.2), driver’s seating position (S14.1.2.5), steering wheel adjustment (S14.1.7), and the opening of the driver’s door and activation of the starting system (S14.2(a)–(c)) would not affect whether the R2X’s backup camera system meets the substantive requirements for ‘‘Field of view’’ (S6.2.1), ‘‘Size’’ (S6.2.2), and ‘‘Response time’’ (S6.2.3), an R2X exempted from these test procedure provisions would not lower the safety of the vehicle. Because NHTSA finds that safety would not be lowered, NHTSA does not reach the question of whether safety would be unreasonably lowered. iii. An Exemption From the Mirror, Windshield, and Backup Camera ‘‘Linger Time’’ Requirements Would Make Easier the Development or Field Evaluation of the R2X An exemption from the mirror, windshield, and backup camera ‘‘Linger time’’ requirements would make easier the development or field evaluation of the R2X because it will permit Nuro to deploy the R2X without equipping the vehicle with extraneous safety features that, as noted earlier, NHTSA has found to not serve a safety function on an occupantless low-speed ADS vehicle. Nuro argues in its petition that compliance with these requirements potentially imposes costs on Nuro and make it more difficult to field test the R2X because compliance ‘‘increases pedestrian strike risk, adds mass, and worsens the impact of collisions.’’ NHTSA agrees that, because compliance would require the R2X to be equipped with additional equipment, compliance with the standard would increase the cost of performing field evaluations of the R2X due to higher manufacturing costs and design restrictions. NHTSA also agrees that increased weight would PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 make field evaluation of the vehicle harder by limiting the utility of the R2X as a delivery vehicle, because extra equipment may increase the curb weight of the vehicle, which could decrease the amount of cargo it can carry. (LSVs are required to have a GVWR of 3,000 pounds or below, regardless of the curb weight of the vehicle.) 65 While the exemption from the backup camera linger time requirement would not impact the manufacturing cost or weight of the vehicle, NHTSA finds that granting an exemption from that requirement would also make easier the field evaluation of the R2X because it would allow the R2X’s ADS to operate continuously with full sensor input at all times, which would aid with Nuro’s evaluation of the ADS’s performance. b. Findings Specific to the EOS Basis i. An R2X Exempt From the Mirror, Windshield, Backup Camera ‘‘Linger Time’’ Requirements, and Portions of the Backup Camera Test Procedures Relating to Rearview Image FOV, Size, and Response Time, Would Have an Overall Level of Safety Equivalent to That of a Nonexempt Vehicle Because an exemption from the mirror, windshield, and backup camera ‘‘Linger time’’ requirements would not lower the level of safety of the R2X, NHTSA finds that an R2X exempted from these requirements would have a level of safety at least equal to that of a compliant version of their R2X. In addition, NHTSA finds that because an exemption from the FMVSS No. 111 test procedures relating to fuel tank loading (S14.1.2.2), driver’s seating position (S14.1.2.5), steering wheel adjustment (S14.1.7), and the opening of the driver’s door and activation of the starting system (S14.2(a)–(c)) would affect whether the R2X’s rearview image meets the substantive ‘‘Field of view’’ (S6.2.1), ‘‘Size’’ (S6.2.2), and ‘‘Response time’’ (S6.2.3) requirements, an R2X exempted from these test procedure provisions would provide a level of safety equivalent to a vehicle tested in accordance with the FMVSS No. 111 test procedures. ii. Compliance With FMVSS No. 500 Would Prevent Nuro From Selling the R2X Compliance with FMVSS No. 500 would prevent Nuro from commercially deploying the R2X because it requires the R2X to be equipped with the three additional features that are the subject of this exemption (exterior and/or interior mirrors, a windshield 65 See E:\FR\FM\11FEN1.SGM 49 CFR 571.3 11FEN1 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices constructed from FMVSS No. 205compliant glazing materials, and a backup camera that meets the ‘‘Linger time’’ requirement of FMVSS No. 111). We note that, while the statutory language for the EOS states that NHTSA must find that compliance with the FMVSS would prevent Nuro from ‘‘selling’’ the R2X, this language does not limit the application of the statutory basis to only vehicles that will be offered for sale (which Nuro states the R2X will not). Rather, to grant an exemption under the EOS basis, NHTSA must find that compliance with the standard would prevent Nuro from selling the R2X regardless of whether Nuro actually intends to sell the R2X. Section 30113 of the Vehicle Safety Act does not require that a vehicle exempted under the EOS basis enter into interstate commerce only through a sale, and NHTSA can think of no reasonable safety-related policy justification for reading such a requirement into the statute. Accordingly, we have determined that Nuro may introduce the R2X into interstate commerce by means other than selling, even if the vehicle is exempted under the EOS basis. khammond on DSKJM1Z7X2PROD with NOTICES c. Granting Nuro’s Petition Is Consistent With the Public Interest and the Vehicle Safety Act As discussed above, the Vehicle Safety Act and its implementing regulations provide the Secretary and, by delegation, NHTSA with broad authority and discretion in determining whether granting the petition is consistent with the public interest and Vehicle Safety Act. Here, NHTSA finds that granting Nuro’s petition is consistent with the public interest and 49 U.S.C. Chapter 301 because an exemption would enable a limited-risk deployment 66 of an occupant-less ADSequipped vehicle that has been designed without any residual consideration of human occupants that are not actually able to be inside the vehicle. Further, granting the petition will provide the agency with valuable information that can facilitate its knowledge of ADS functionality to advance future policy and regulatory decisions. Given the agency’s above determination in the safety findings that the exemption will not lower the safety of the R2X as compared to a compliant version of the vehicle, and could instead provide incremental benefits to vehicle safety due to certain design changes, the agency believes that these reasons are 66 In terms of vehicle size, weight, and speed, as well as limited operational design domain and fleet size. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 more than sufficient to justify this finding. More specifically, allowing for the introduction of the R2X as it has been designed by Nuro to optimize its performance as an occupant-less vehicle could further the development of new and innovative vehicle automation technologies, which may in turn lead to future benefits for vehicle safety, the environment, and the economy. While the extent of the anticipated benefits of ADS vehicles like the R2X are uncertain, commenters Local Motors and SAFE suggested that these vehicles could provide a variety of benefits, including increased safety (because ADS vehicles may reduce the number of crashes caused by human error), decreased emissions (because ADS vehicles could perform the driving task more efficiently and, in the case of the R2X, efficiently combine trips), and socioeconomic benefits (because ADS vehicles could provide expanded goods delivery services to poor and/or underserved communities). While NHTSA cannot fully predict the extent to which these benefits will materialize in the future and, more specifically, the effect that granting this petition would have on those benefits, the agency understands that development of the ADS technology necessary to make these potential benefits possible requires the technology be used on vehicles that are designed from the ground-up to be automated and in real-world (nonsimulated) environments, both to validate the safety of the current ADS technologies and to expose those technologies to new situations in which ‘‘machine learning’’ capabilities can be used to improve performance.67 In all events, the exemption request must be considered based upon the information available to the agency at this time, and NHTSA may revisit the issues here in the future as circumstances warrant. By virtue of filing this petition, Nuro believes that this exemption would better facilitate their development of this technology. Given that the R2X has a much lower top speed and lower weight than a typical passenger motor vehicle, and that the R2X will not have occupants, NHTSA believes that LSV67 We note that the FAST Act (Pub. L. 114–94, 129 Stat. 1312 (Dec. 4, 2015) amended the Vehicle Safety Act to permit vehicle manufacturers that existed before December 2015 to operate uncertified vehicles on public roads for purposes of testing and evaluation. See 49 U.S.C. 30112(b)(10). As Nuro has only been a manufacturer since 2018 (see https:// vpic.nhtsa.dot.gov/mid/manufacturer/details/ 18808), Nuro does not qualify for this exclusion and so must certify its vehicles as FMVSS-compliant, or obtain a temporary exemption, before deploying them in any capacity on public roads. PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 7837 based ADS vehicles like the R2X provide a low-risk platform for validating and improving ADS technologies.68 Finally, granting this exemption is in the public interest and consistent with the Vehicle Safety Act because it would encourage the development of new safety and automated technologies, like ADS, with an eye toward future regulatory changes. To this end, NHTSA believes that both the public interest and the goals of the Vehicle Safety Act would be best served if NHTSA were able to maintain a dialogue with Nuro about its experience operating the R2X, which may help inform the agency’s future policy decisions towards ADS technologies. Accordingly, NHTSA has decided to condition the grant of an exemption on Nuro providing the agency with specified periodic and incident-based reporting of information about the R2X’s ADS, notwithstanding that the driving capability of the ADS is not relevant to the requisite safety findings. VIII. Nuro’s Request for an Exemption From the Backup Camera ‘‘Deactivation’’ Requirement Is Moot NHTSA has deemed moot Nuro’s request for an exemption from the backup camera ‘‘Deactivation’’ requirement (FMVSS No. 111, S6.2.5) because the requirement does not mandate that the backup camera deactivate when the vehicle shifts out of reverse, as Nuro assumed in its petition. Accordingly, an exemption from the ‘‘Deactivation requirement’’ is not necessary for Nuro to design the R2X to operate with the backup camera activated at all times, which was Nuro’s stated purpose of requesting an exemption. The deactivation requirement specifies the circumstances in which the backup camera image may be deactivated, i.e., when ‘‘the driver modifies the view, or the vehicle direction selector is removed from the reverse position.’’ Contrary to Nuro’s understanding, S6.2.5 does not require the backup camera to deactivate; rather, the requirement prohibits the backup camera from being deactivated prior to either of the two specified conditions being met. That is, S6.2.5 requires that 68 We note that our determination that the R2X is a lower-risk platform for testing ADS technologies is, in part, premised on Nuro taking its responsibility for the safety of its vehicles seriously, which includes compliance with the terms set out at the end of this notice. If NHTSA determines that Nuro has violated the terms laid out at the end of this notice, NHTSA may determine at that time that the exemption is no longer in the public interest, and may withdraw the exemption. See 49 CFR 555.8(d)(1). E:\FR\FM\11FEN1.SGM 11FEN1 7838 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices the rearview image be displayed prior to either the driver manually modifying the view or the gear selector being taken out of reverse. The requirement does not mandate that the image shall cease to be visible when one of these conditions is met. Thus, assuming the driver has not manually modified the rearview image, S6.2.5 would permit the rearview image to be displayed even after the gear selector had been taken out of reverse; 69 but, per S6.2.4, it may not be displayed after the end of the backing event, as that term is defined in S4. Since the deactivation requirement in S6.2.5 permits, but does not require, deactivation of the rearview image when the vehicles is taken out of reverse, Nuro’s request for exemption from the requirement is moot. IX. Other Issues Raised by Commenters khammond on DSKJM1Z7X2PROD with NOTICES a. Relevance of the Driving Capability of the R2X’s ADS Several commenters raised the issue of whether, and the extent to which, the driving ability of the R2X’s ADS was relevant to the safety findings NHTSA must make to grant an exemption under § 30113, under any basis. Advocacy groups, including AAMVA,70 Advocates,71 and NSPE,72 assumed, without providing a legal basis for their assumption, that the ability of the R2X’s ADS to perform the driving task must be a major factor for NHTSA to consider in its evaluation of Nuro’s petition. These groups argued that Nuro’s petition did not include sufficient information about the ADS for NHTSA to grant an exemption because Nuro did not include documentation of the various testing it had done in developing its ADS, though these groups generally did not specify in detail what data they believed Nuro should have provided. However, one safety advocate, CAS, did include a discussion of why it believed the driving ability of the R2X’s ADS should be an element of NHTSA’s in its safety findings.73 According to CAS, the driving ability of the R2X’s ADS is relevant because the FMVSS often have ‘‘an implicit human operator bias.’’ Accordingly, CAS argues that manufacturers of ADS vehicles must be required to demonstrate that the manufactures ‘‘have successfully replicated in their automatic systems the human sensory capability, 69 The only restriction on when the rearview image must be deactivated is the linger time requirement (S6.2.4), from which we have decided to grant Nuro an exemption, as is explained in the previous section. 70 See NHTSA–2019–0017–0025. 71 See NHTSA–2019–0017–0026. 72 See NHTSA–2019–0017–0011. 73 See NHTSA–2019–0017–0024. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 responses, and judgement implicit in the specific FMVSS for which an exemption is sought.’’ Using the mirror requirement as an example, CAS argues that, for Nuro to be exempted from the LSV mirror requirement, its petition must demonstrate that the R2X’s ADS will respond as a human using mirrors would in a potential crash scenario. However, CAS does not cite a legal basis for reading into the FMVSS a requirement that the ADS must react in a certain way in these driving scenarios. While other comments from advocacy groups were not as thorough as CAS in their discussion of the relevance of the ADS, they all roundly criticized Nuro’s petition for a perceived lack of information about the ADS and other related subjects (such as the ODD and remote operator system) they claim are relevant to the safety findings NHTSA must make. On the other side, SAFE, Local Motors, and the Alliance, argued in their comments that the driving capability of the R2X’s ADS is not relevant to the safety findings NHTSA must make to grant an exemption. According to SAFE, the R2X’s ADS is not relevant to NHTSA’s safety findings because the exemption statute requires NHTSA to determine how the safety level of the non-compliant R2X would differ from that of a compliant vehicle, which in this case, would be a compliant occupantless, low-speed ADS vehicle.74 Thus, based on SAFE’s logic, NHTSA’s findings must focus on the safety implication of non-compliance as it relates to the specific standards from which an exemption is sought, not on how safe an exempted vehicle would be generally.75 Using similar logic, Local Motors argued that ‘‘ADS performance measurement is less meaningful to the specific features being omitted,’’ although Local Motors did encourage NHTSA to require some information reporting to maintain oversight of the vehicles.76 The Alliance argued for the same outcome—that the R2X’s ADS should not be considered in NHTSA’s safety findings—but justified its argument on the grounds that ADS competency should not be considered because it is already ‘‘addressed’’ through the Voluntary Safety SelfAssessment (VSSA) criteria and the Department’s ADS 2.0 and AV 3.0 guidance.77 74 See NHTSA–2019–0017–0016. note that SAFE discusses only the LEV and NSF bases, but its point could be applicable to the EOS basis as well. 76 See NHTSA–2019–0017–0017. 77 See NHTSA–2019–0017–0020. 75 We PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 NHTSA agrees with SAFE and Local Motors that the ADS does not factor into the comparative safety findings NHTSA must make to grant an exemption under either the EOS or LEV bases in this instance. As we briefly explained at the start of the ‘‘Safety Analysis’’ section, neither the statute nor regulations call upon NHTSA to assess the absolute level of safety of the exempted vehicle in question and find whether the vehicle’s safety exceeds some minimum threshold that exists in the abstract. Instead, the agency is tasked with making a judgment about relative safety, i.e., whether an exempted, noncompliant version of a highly automated R2X would have a level of safety equivalent to that of a nonexempt, compliant version of a highly automated R2X. As we noted, Nuro has stated that an R2X that is exempted from the requirements of FMVSS No. 500 would use the same ADS as an R2X that is fully compliant, which would rely on the same sensors and would perform the same classifying, decision making and executing functions. Thus, because a compliant version of the R2X would also operate using an ADS, there is no meaningful difference in the safety impact of the ADS between a compliant and non-compliant R2X.78 While we agree with the Alliance that the driving performance of the ADS is not germane to the safety findings NHTSA must make to grant Nuro’s petition, we do not agree with the Alliance that the VSSA process is the appropriate framework NHTSA should use to exercise oversight of ADS vehicles that are produced subject to an exemption. First, as stated in NHTSA’s ADS 2.0 guidance, and reemphasized in the Department’s AV 3.0 and other statements, VSSAs are completely voluntary and the agency has no mechanism with which to compel their submission. VSSAs are intended to be documents by which ADS developers convey to the public information about how safety is factored into the development of the ADS in several specific critical areas and, thus, are not intended to be tools of regulatory oversight. Further, the agency is not, in this notice, foreclosing the possibility that, in considering whether to grant an ADS-related exemption petition for a vehicle that is requesting exemption 78 As noted earlier, the Vehicle Safety Act permits manufacturers to include any design feature they want on a vehicle so long as the vehicle conforms to the FMVSS, and the vehicle does not contain a defect that poses an unreasonable risk to safety. Thus, the ADS would be subject to NHTSA’s defects authority, and some aspects of its competence may be appropriately considered in a defect investigation of the R2X by NHTSA. E:\FR\FM\11FEN1.SGM 11FEN1 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES from many more FMVSS requirements than Nuro, NHTSA would determine that the competency of the ADS is relevant to making the requisite safety finding. Rather, the agency has simply determined that such an analysis is not necessary here. It is important to note that, while the driving capability of the R2X’s ADS was not a factor in NHTSA’s findings concerning whether the agency should grant Nuro’s petition, as described above, nothing in this decision precludes NHTSA from seeking information about the ADS as part of a defect investigation, just as the agency would be able to seek information about the ADS in an investigation of a FMVSS compliant ADS-equipped vehicle. Neither this decision nor the Vehicle Safety Act prohibits NHTSA from mitigating ADS-related risks in determining the number of vehicles to exempt or the terms that apply to the exemption. Accordingly, NHTSA has conditioned this exemption grant on terms that the agency believes will mitigate risk and ensure the agency can maintain adequate oversight of deployed R2X vehicles. The agency has included several terms that require Nuro to report both general and incidentrelated information to NHTSA, including certain data about the operation of the R2X and its ADS. As described above, NHTSA believes granting this petition is in the public interest in part because this data will assist the agency both with its oversight of the R2X, and with developing regulatory changes to facilitate the safe introduction of fully compliant ADS vehicles. b. ADS-Related Data Reporting Several commenters also raised the issue of whether, and to what extent, NHTSA should require Nuro to report data about the operation of the R2X to the agency. While most commenters agreed that some required post-grant data reporting requirement would be appropriate, the commenters disagreed on whether this reporting should include information about the operation of the R2X using the ADS. The commenters in favor of broad reporting requirements that cover information about the operation of the R2X and/or its ADS included advocacy groups like Advocates, CAS, and AAMVA, as well as the manufacturer Local Motors. Advocates argued that NHTSA should use the exemption process to increase the agency’s understanding of ADS technologies through ‘‘required data sharing,’’ though it did not provide detail as to what data it believed would be useful for NHTSA VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 to collect, nor what exactly is meant by ‘‘sharing.’’ 79 Both CAS 80 and AAMVA 81 suggest that NHTSA should ‘‘monitor’’ and require periodic reporting from Nuro, though they do not specify details of the scope or frequency of this monitoring and reporting. Local Motors suggested that NHTSA could require reporting of information related to route hazards, near misses, collision incidents, injuries, and disengagements of the ADS.82 Regardless of what is reported, both AAMVA and Advocates argue that, because the R2X could potentially operate beyond the two-year exemption period, and could develop over time through software changes, any reporting requirements should last for the entirety of the R2Xs’ useful life. Commenters who argued against significant reporting requirements included the Alliance and Nuro itself. The Alliance argued that data reporting on the operation of the R2X and/or its ADS should not be required, both because of what it refers to as the ‘‘limited’’ nature of Nuro’s exemption request, and because NHTSA has the VSSA process to obtain this information.83 The Alliance argues that if NHTSA does impose any reporting requirements, such requirements should be limited to the specific exemptions from the FMVSS requirements at issue in the petition, and that information about the ADS should be pursued in other ways, such as through a pilot program. In addition, the Alliance argues that, if there are any reporting requirements, they should not extend beyond the two-year exemption period. While Nuro did not object to reporting generally, it did suggest that NHTSA should only require reporting of information relating to a small subset of potential crash events, or narrowly tailored to the discrete aspects of vehicle performance affected by individual exemptions (which would omit reporting of any information about the operation of the R2X or its ADS).84 NHTSA has determined that limiting reporting requirements in the way suggested by the Alliance and Nuro would not be appropriate, because it could harm the public interest both by hindering NHTSA’s oversight of the R2X and limiting NHTSA’s ability to learn from information from Nuro to potentially inform future activities. Accordingly, NHTSA has decided to include terms that would require both 79 See NHTSA–2019–0017–0026. NHTSA–2019–0017–0024. 81 See NHTSA–2019–0017–0025. 82 See NHTSA–2019–0017–0017. 83 See NHTSA–2019–0017–0020. 84 See NHTSA–2019–0017–0023. 80 See PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 7839 crash-related information that is sent to the agency very soon after any crash, and periodic reporting of general information about the operation of the R2X, and that this reporting should extend throughout the useful life of the vehicles produced pursuant to the exemption. c. Compliance With FMVSS Requirements Not Applicable to the R2X AAMVA argues in its comment that Nuro should be required to apply for an exemption from the requirement that LSVs come equipped with an FMVSS No. 209-compliant seat belt, despite the vehicle’s lack of designated seating positions, because AAMVA is concerned that allowing this would set a precedent that manufacturers could simply decide that certain FMVSS requirements do not apply to their vehicles.85 NHTSA does not agree with AAMVA’s assertion that Nuro is free to choose which FMVSS apply. FMVSS No. 500 is quite clear as to the seat belt requirement. It is written as an ‘‘ifequipped’’ requirement; that is, it requires that an LSV have an FMVSS No. 209-compliant seat belt at each designated seating position (DSP). Since the R2X does not have any DSPs, it is not required to have any seat belts. All LSVs with DSPs are subject to the requirements of FMVSS No. 209. Similarly, CAS argues that NHTSA should require that the R2X be equipped with an FMVSS No. 401-compliant trunk release in its cargo compartments as a term of granting the petition.86 Although NHTSA encourages Nuro to make its vehicles as safe as possible, and to consider installing trunk releases, FMVSS No. 401 does not apply to LSVs. Under section 30113 and Part 555, the question that Nuro’s petition puts before NHTSA is whether Nuro should be exempted from three of the requirements to which its vehicle is subject under FMVSS No. 500. The question of whether LSVs should be subject to additional performance requirements is outside the scope of this proceeding, and the agency does not have a legal basis to impose additional FMVSS requirements on the R2X, either as a pre-condition of granting an exemption, or as a term for maintaining an exemption grant. However, the agency may consider whether to include a trunk release requirement should we decide in the future to amend the FMVSS to specifically regulate occupantless delivery vehicles, as described in the Notice of Receipt for this petition. 85 See 86 See E:\FR\FM\11FEN1.SGM NHTSA–2019–0017–0025. NHTSA–2019–0017–0024. 11FEN1 7840 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices khammond on DSKJM1Z7X2PROD with NOTICES d. Cybersecurity Three commenters—CAS, NSPE, and Patrick Coyle—all raised cybersecurity concerns as well. CAS states that ‘‘endto-end encryption,’’ which Nuro states the R2X’s communications will have, is insufficient to assure cybersecurity alone.87 CAS also commented that safety-critical cybersecurity issues should be covered by Nuro’s safety plan and that there should be ongoing assessments of Nuro’s compliance with this plan. Similarly, NSPE states that the cybersecurity measures Nuro describes in its petition are insufficient, given the dangers an ADS vehicle could pose if hacked, and says that NHTSA should withhold approval until Nuro submits a detailed cybersecurity plan.88 Mr. Coyle, a private individual, also states that Nuro’s petition does not contain an adequate discussion of cybersecurity.89 Although the agency has no reason to believe that the cybersecurity risk between the R2X and a hypothetical compliant version of the R2X are any different, given the critical importance of cybersecurity, we have decided it would be in the public interest to include terms requiring Nuro to report any cybersecurity incidents and safetycritical cybersecurity vulnerabilities, and cease operation of all R2X vehicles if a cybersecurity incident that has an effect on safety occurs until the incident has been remedied. e. Engagement With Local Authorities Both AAMVA and AAA argue in their comments that community engagement would be important to ensuring the safe operation of the exempted vehicles and to gaining consumer acceptance. AAMVA stated that NHTSA should carefully consider how state and local authorities would be affected by the presence of exempted vehicles, and suggested that the acceptability of features like remote operation as a risk mitigation strategy should be up to State and local authorities.90 AAA also stated that petitioners should describe outreach efforts in their petition.91 Although the question of whether Nuro adequately engaged with the local communities in which it is deploying the R2X is not a factor in the safety findings NHTSA must make to grant Nuro’s petition, NHTSA agrees that community outreach and compliance with local regulation is important for both the safe operation of the R2X within the community (e.g., safely 87 See NHTSA–2019–0017–0024. NHTSA–2019–0017–0011. 89 See NHTSA–2019–0017–0004. 90 See NHTSA–2019–0017–0025. 91 See NHTSA–2019–0017–0021. 88 See VerDate Sep<11>2014 18:19 Feb 10, 2020 interacting with first responders in an emergency) and social acceptance of the vehicles. For this reason, NHTSA has determined it is in the public interest to include terms that require Nuro to certify that it has engaged with and gained any legally necessary approval of all State and local authorities in the communities in which the R2X will be deployed. X. Number of Vehicles The Vehicle Safety Act provides that NHTSA may grant an exemption under the LEV and EOS bases for the production of a maximum of 2,500 vehicles during any 12-month period.92 Nuro is permitted to produce up to 2,500 exempted R2X vehicles during any 12-month period of the exemption, or a maximum of 5,000 exempted vehicles over the full two-year exemption period. XI. Terms The Vehicle Safety Act grants the Secretary, as delegated to NHTSA significant discretion to condition the grant of an exemption ‘‘on terms [NHTSA] considers appropriate.’’ 49 U.S.C. 30113(b)(1) (delegation of authority at 49 CFR 1.95). Pursuant to this authority, NHTSA’s grant of an exemption is subject to the terms set out in the Appendix following the preamble. Although, as we have noted, the performance of the R2X’s ADS need not be addressed for this exemption, the Vehicle Safety Act does not limit the agency’s authority solely to terms and conditions directly relevant to its specific determination. This is particularly true in instances, such as here, where the agency has considered the potential benefits of automation in its public interest finding, and where the party seeking the exemption is using a novel form of technology. The exemption Nuro is receiving today is the first exemption NHTSA has granted under section 30113 to permit the deployment of an ADS vehicle that will be used for commercial purposes. As such, NHTSA appreciates that there will likely be heightened public interest about the vehicles allowed under this exemption petition, as evidenced by the public comments, and, the agency has decided to include provisions concerning the performance of the ADS in the terms for this exemption. NHTSA notes that violation of these terms may lead NHTSA to determine that the exemption is no longer in the public interest, which is a ground for the agency to terminate the exemption under 49 CFR 555.8(d). NHTSA may 92 49 Jkt 250001 PO 00000 U.S.C. 30113(d). Frm 00128 Fmt 4703 Sfmt 4703 also take other appropriate enforcement action. The terms NHTSA has chosen are designed to enhance the public interest and include post-crash reporting, periodic reporting, particular terms concerning cybersecurity, and certain general requirements. The post-crash reporting requirements would provide NHTSA with information necessary to understand the cause of the crash (including any role the ADS may have played), so the agency can take appropriate remedial action—up to and including requiring a recall, or even terminating the exemption and include the type of information the agency may request as a matter of course in any safety defect investigation involving an ADS-equipped vehicle. The periodic reporting requirements are intended to provide NHTSA with information about the operation of the R2X on public roads to facilitate improved safety oversight. NHTSA has also included restrictions on Nuro to ensure that the company is in a position to learn of and quickly resolve cybersecurity incidents related to safety. The general requirements are intended to ensure that Nuro removes from operation any vehicle determined not to be safe, Nuro comply with all relevant State and local laws, retain ownership of the vehicles, and provide a hotline for safety concerns. We note that the terms we have included in this notice are similar to terms NHTSA has previously imposed on the importation of noncompliant ADS vehicles under 49 CFR part 591, though, consistent with the differing requirements of part 591, Nuro’s exemption will allow for commercial deployment, rather than simply testing and demonstration. Finally, though not included in the terms below, Nuro must also comply, as a matter of law, with the requirements for a label that must be affixed to its exempted vehicles under part 555.9. XII. Conclusion In accordance with 49 U.S.C. 30113(b)(3)(B)(iii) and (iv), the agency is granting Nuro NHTSA Temporary Exemption No. EX 20–01 from paragraphs S5(b)(6) and S5(b)(8) of FMVSS No. 500; and paragraphs S6.2.4, S14.1.2.2, S14.1.2.5, S14.1.7, and S14.2(a)–(c) of FMVSS No. 111; provided that Nuro complies with the terms and conditions described in the Appendix to this document. The exemption shall be effective from February 11, 2020 to February 10, 2022. E:\FR\FM\11FEN1.SGM 11FEN1 7841 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices Appendix: Terms 1. Reporting Following a Crash As soon as practicable, but no later than 24 hours after the R2X is involved in any crash in which either (1) the R2X is in motion, or (2) the R2X is struck by another motor vehicle, Nuro must inform NHTSA’s Office of Vehicle Safety Compliance (OVSC) that the crash took place. As soon as practicable, but no later than 7 calendar days after Nuro informs OVSC of a crash, Nuro must report to NHTSA the data elements specified in Table I.93 TABLE I—REPORTED DATA ELEMENTS Data sample rate (samples per second) Data element Recording interval/time (relative to time zero) Delta-V, longitudinal ................................ Maximum delta-V, longitudinal ................ Time, maximum delta-V .......................... Delta-V, lateral ......................................... Maximum delta-V, lateral ........................ Time, maximum delta-V, lateral .............. Time, maximum delta-V, resultant .......... Lateral acceleration ................................. Longitudinal acceleration ......................... Normal acceleration ................................ Speed, vehicle indicated ......................... Engine throttle, % full .............................. Service brake, on/off ............................... Ignition cycle, crash ................................. Ignition cycle, download .......................... 0 to 250 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ............. 0–300 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ................ 0–300 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ................ 0–250 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ................ 0–300 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ................ 0–300 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ................ 0–300 ms or 0 to End of Event Time plus 30 ms, whichever is shorter ................ N/A ........................................................................................................................... N/A ........................................................................................................................... N/A ........................................................................................................................... ¥5.0 to 0 sec .......................................................................................................... ¥5.0 to 0 sec .......................................................................................................... ¥5.0 to 0 sec .......................................................................................................... ¥1.0 sec .................................................................................................................. At time of download ................................................................................................. The data elements specified in Table I must be reported in accordance with the 100. N/A. N/A. 100. N/A. N/A. N/A. N/A. N/A. N/A. 2. 2. 2. N/A. N/A. range, accuracy, and resolution specified in Table II. TABLE II—REPORTED DATA ELEMENT FORMAT Data element Minimum range Accuracy Lateral, Longitudinal and normal acceleration At option of manufacturer ............................... Longitudinal, Longitudinal Maximum, Lateral, Lateral Maximum delta-V. Time, maximum delta-V, longitudinal and lateral. Time, maximum delta-V, resultant ................... ¥100 km/h to + 100 km/h .............................. At option of manufacturer. ±10% .......................... At option of manufacturer. 1 km/h. ±3 ms ......................... 2.5 ms. ±3 ms ......................... 2.5 ms. ±1 km/h ...................... ±5% ............................ ±1 cycle ...................... 1 km/h. 1%. 1 cycle. khammond on DSKJM1Z7X2PROD with NOTICES Speed, vehicle indicated .................................. Engine throttle, percent full .............................. Ignition cycle, crash and download .................. In addition, Nuro must provide NHTSA’s OVSC with the following information about the status of the ADS and/or remote operator before and during the crash event: • If the ADS was in control of the vehicle during the event, a detailed timeline of the 30 seconds leading up to the crash, including a detailed read-out and interpretation of all sensors in operation during that time period, the ADS’s object detection and classification output, and the vehicle actions taken (i.e., commands for braking, throttle, steering, etc.). • If a remote operator took over control of the vehicle prior to the event, a detailed timeline of the 30 seconds leading up to the remote operator taking over control, including a detailed read-out and interpretation of all ADS sensors in operation during that time period, the ADS’s object detection and classification output, and the 93 These data elements are based on the requirements in 49 CFR part 563, Event Data Recorders, with data elements related to occupant VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 0–300 ms, or 0—End of Event Time plus 30 ms, whichever is shorter. 0–300 ms, or 0—End of Event Time plus 30 ms, whichever is shorter. 0 km/h to 200 km/h ......................................... 0 to 100% ........................................................ 0 to 60,000 ...................................................... vehicle actions taken (i.e., commands for braking, throttle, steering, etc.). • If a remote operator was in control of the R2X at any point during or up to 30 seconds before the event, Nuro must provide a detailed timeline of any actions the remote operator took that affected the crash event, as well as any technical problems that could have contributed to the crash (signal latency, poor field of view, etc.). Finally, Nuro must provide NHTSA with any additional information about the event that NHTSA deems pertinent for determining either crash or injury causation, including additional information related to the ADS or remote operator system. 2. Periodic Reporting Beginning 90 days after the date of the exemption grant, and at an interval of every 90 days thereafter, Nuro must submit to NHTSA’s OVSC a report detailing the protection systems omitted. For purposes of reporting the data elements in this table, ‘‘End of Event Time’’ means the moment at which the PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 Resolution operation of each R2X vehicle in operation during that time period. This report may provide this information either in aggregate or on a per-vehicle basis, but it must include the following: • A calculation of the total miles the vehicle has traveled using the ADS during the report period, and heat maps of the geofenced area in which the vehicle operates to illustrate travel density. Nuro must provide the same information for miles traveled using a remote operator. • Detailed descriptions of any material changes made to the R2X’s Operational Design Domain (ODD) or ADS software during the reporting period. • Detailed descriptions of any incidents in which the R2X has violated any local or state traffic law, whether operating using the ADS or under remote operation. • Detailed descriptions of any incidents in which the R2X has experienced a sustained vehicle’s cumulative delta-V within a 20 ms time period becomes 0.8 km/h (0.5 mph) or less. E:\FR\FM\11FEN1.SGM 11FEN1 7842 Federal Register / Vol. 85, No. 28 / Tuesday, February 11, 2020 / Notices acceleration of at least 0.7g on any axis for at least 150 ms, or of any incidents in which the vehicle has an unexpected interaction with humans or other objects (other than crashes that require immediate reporting). • Detailed descriptions of all instances in which a public safety official, including law enforcement, has attempted to interact with an R2X, such as to pull it over, or has contacted Nuro regarding an attempted interaction with the R2X. • Detailed descriptions of any ‘‘minimal risk condition fallback’’ 94 or ‘‘remote operator takeover’’ 95 events that have occurred, even if no crash has occurred. If the event has occurred because the vehicle selfdiagnosed a malfunction of a vehicle system, the report must include a detailed description of the cause and nature of the malfunction, and what remedial steps were taken. If the event was caused by the vehicle encountering a complex or unexpected driving situation, the report must include a detailed timeline of the ADS’s decisionmaking process that led to the event, including any difficulties the ADS had in detecting and classifying objects. For any remote operator takeover event, Nuro must provide information about any technical issues encountered, such as signal latency. In addition, Nuro must make necessary staff available to meet with NHTSA staff quarterly to discuss the status of its deployment program. 3. Cybersecurity • Nuro must have a documented cybersecurity incident response plan that includes its risk mitigation strategies and the incident notification requirements listed below. • Nuro must cease operations of all R2X vehicles immediately upon becoming aware of any cybersecurity incident 96 involving the R2X and any systems connected to the R2X that has the potential to impact the safety of the R2X. • No later than 24 hours after being made aware of a cybersecurity incident, Nuro must khammond on DSKJM1Z7X2PROD with NOTICES 94 The term ‘‘minimal risk condition fallback’’ refers to a situation in which the ADS pulls over using a ‘‘failsafe trajectory,’’ as described on page 21 of Nuro’s VSSA, which Nuro submitted as an attachment to its comment. See Docket No. NHTSA–2019–0017–0023. 95 The term ‘‘remote operator takeover’’ refers to a situation in which a remote operator takes control of a vehicle either because the ADS recommends remote operation, or because the remote operator deems it appropriate without being prompted by the ADS. 96 As used in these terms, ‘‘incident’’ is defined as an occurrence that jeopardizes the functionality, confidentiality, integrity, or availability of a vehicle computing platform through the potential use of an exploit. ‘‘Exploit’’ refers to an action that takes advantage of a vulnerability to cause unintended or unanticipated behavior to occur on computer software and/or hardware. VerDate Sep<11>2014 18:19 Feb 10, 2020 Jkt 250001 inform NHTSA’s Office of Defects Investigations (ODI) of the incident. Nuro must also respond to any additional requests for information from NHTSA on the cybersecurity incident. • Prior to resuming its operation of R2X vehicles following the discovery of a cybersecurity incident, Nuro must inform NHTSA of the steps it has taken to patch the vulnerability and mitigate the risks associated with the incident, and receive NHTSA approval to resume operation. 4. Other Conditions • Nuro must be capable of issuing a ‘‘stop order’’ that causes all deployed R2X vehicles to, as quickly as possible, cease operations in a safe manner, in the event that NHTSA or Nuro determines that the exempted vehicles present an unreasonable or unforeseen risk to safety. • Nuro must coordinate any planned deployment of the R2X or change to the ADS/ ODD with state and local authorities with jurisdiction over the operation of the vehicle as required by the laws or regulations of that jurisdiction. • The R2X must comply with all state and local laws and requirements at all times while in operation. Each vehicle must be duly permitted, if applicable, and authorized to operate within all properties and upon all roadways traversed. • Nuro must maintain ownership and operational control over the R2Xs that are built pursuant to this exemption for the life of the vehicles. • Nuro must create and maintain a hotline or other method of communication for the public and Nuro employees to directly communicate feedback or potential safety concerns about the R2X to the company. Authority: 49 U.S.C. 30113 and 49 U.S.C. 30166; delegations of authority at 49 CFR 1.95 and 49 CFR 501.4. Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.4. James C. Owens, Acting Administrator. [FR Doc. 2020–02668 Filed 2–10–20; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration Hazardous Materials: Notice of Applications for Modifications to Special Permits List of applications for modification of special permits. ACTION: In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation’s Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the ‘‘Nature of Application’’ portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passengercarrying aircraft. SUMMARY: Comments must be received on or before February 26, 2020. DATES: Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590. ADDRESSES: Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a selfaddressed stamped postcard showing the special permit number. FOR FURTHER INFORMATION CONTACT: Donald Burger, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH–30, 1200 New Jersey Avenue Southeast, Washington, DC 20590–0001, (202) 366–4535. Copies of the applications are available for inspection in the Records Center, East Building, PHH–30, 1200 New Jersey Avenue Southeast, Washington, DC. SUPPLEMENTARY INFORMATION: This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)). Issued in Washington, DC, on February 3, 2020. Donald P. Burger, Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. AGENCY: PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 Chief, General Approvals and Permits Branch. E:\FR\FM\11FEN1.SGM 11FEN1

Agencies

[Federal Register Volume 85, Number 28 (Tuesday, February 11, 2020)]
[Notices]
[Pages 7826-7842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02668]



[[Page 7826]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0017]


Nuro, Inc.; Grant of Temporary Exemption for a Low-Speed Vehicle 
With an Automated Driving System

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Notice of grant of a petition for a temporary exemption from 
three provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 
500, ``Low-speed vehicles.''

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SUMMARY: This notice grants the petition of Nuro, Inc. (Nuro) for a 
temporary exemption from three requirements of FMVSS No. 500 under two 
bases: (1) That an exemption would make the development or field 
evaluation of a low-emission motor vehicle easier and would not 
unreasonably lower the safety level of that vehicle; and (2) that 
compliance with these requirements would prevent Nuro from selling a 
motor vehicle with an overall safety level at least equal to the 
overall safety level of a nonexempt vehicle. The vehicle that Nuro 
intends to manufacture under this exemption--the ``R2X''--is a highly 
automated, electric, low-speed vehicle (LSV) that lacks seating 
positions and manual driving controls and is smaller, lower, and 
narrower than conventional vehicles. The exemption applies to the 
requirements that an LSV be equipped with exterior and/or interior 
mirrors; have a windshield that complies with FMVSS No. 205, ``Glazing 
materials''; and a backup camera system that meets the requirement in 
FMVSS No. 111, ``Rear visibility,'' limiting the length of time that a 
rearview image can remain displayed by the system after a vehicle's 
transmission has been shifted out of reverse gear.

DATES: Nuro's petition is granted as of February 11, 2020.

FOR FURTHER INFORMATION CONTACT: Daniel Koblenz, Office of Chief 
Counsel, Telephone: 202-366-2992, Facsimile: 202-366-3820. The mailing 
address for this official is: National Highway Traffic Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
    a. Statutory Requirements for Temporary Exemption Petitions
    b. Low Speed Vehicles (LSVs) and FMVSS No. 500
III. Nuro's Petition
IV. Notice of Receipt
V. Selection of Statutory Basis for Analyzing the Merits of the 
Petition
VI. Safety Analysis
    a. An Exemption From the Requirement That an LSV Be Equipped 
With Exterior and/or Interior Mirrors Would Not Lower the Safety of 
the R2X
    b. An Exemption From the Requirement That an LSV Be Equipped 
With FMVSS No. 205-Compliant Windshield Would Not Lower the Safety 
of the R2X
    c. An Exemption From the Requirement That an LSV's Backup Camera 
Meet the ``Linger Time'' Requirement of FMVSS No. 111 Would Not 
Lower the Safety of the R2X
    d. An Exemption From Portions of the FMVSS No. 111 ``Field of 
View and Image Size Test Procedure'' and ``Image Response Time Test 
Procedure'' Would Not Lower the Safety of the R2X
VII. Nuro's Requests for Exemptions From the LSV Mirror, Windshield, 
and Backup Camera ``Linger Time'' Requirements Are Granted Under 
Both the ``Low-Emission Vehicle'' (LEV) and ``Equivalent Overall 
Safety'' (EOS) Exemption Bases
    a. Findings Specific to the LEV Basis
    b. Findings Specific to the EOS Basis
    c. Granting Nuro's Petition Is Consistent With the Public 
Interest and the Vehicle Safety Act
VIII. Nuro's Request for an Exemption From the Backup Camera 
``Deactivation'' Requirement Is Moot
IX. Other Issues Raised by Commenters
    a. Relevance of the Driving Capability of the R2X's ADS
    b. ADS-Related Data Reporting
    c. Compliance With FMVSS Requirements Not Applicable to the R2X
    d. Cybersecurity
    e. Engagement With Local Authorities
X. Number of Vehicles
XI. Terms
XII. Conclusion
Appendix: Terms

I. Executive Summary

    This document grants a petition submitted by Nuro Inc. (Nuro) for a 
temporary exemption of a vehicle from three requirements of FMVSS No. 
500, Low-speed vehicles. Nuro's vehicle, the R2X, is a highly automated 
(SAE Level 4 or L4), low-speed (25 mph maximum), electric-powered 
delivery vehicle.\1\ According to Nuro, the R2X is designed to carry 
exclusively cargo and operate without a human driver. Accordingly, the 
R2X does not have any occupant compartments, designated seating 
positions, or manual controls for driving the vehicle.\2\
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    \1\ See SAE International, J3016_201806: Taxonomy and 
Definitions for Terms Related to Driving Automation Systems for On-
Road Motor Vehicles (Warrendale: SAE International, 15 June 2018), 
https://www.sae.org/standards/content/j3016_201806/.
    \2\ The R2X is equipped with a ``remote operation'' system 
through which a remote operator can take over the driving functions 
of the R2X. Although remote operators presumably input driving 
commands to the R2X using some sort of manually operated set of 
controls from an offsite location, NHTSA understands the remote 
operator system to be a ``fallback'' safety feature and thus not a 
primary means of controlling the vehicle.
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    Nuro seeks exemptions from various FMVSS that are designed to 
provide safety benefits for occupants. Since the R2X does not 
accommodate any occupants, Nuro argues that these FMVSS do not serve 
their intended functions in the R2X. Accordingly, Nuro has sought 
exemptions from these requirements. NHTSA has analyzed the request for 
exemption and is granting them in accordance with its exemption 
authority under the Vehicle Safety Act and its implementing regulations 
in part 555.\3\
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    \3\ See 49 U.S.C. 30113; 49 CFR part 555.
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    Pursuant to the Vehicle Safety Act, NHTSA may grant an exemption 
from an FMVSS if NHTSA determines that such exemption is consistent 
with the public interest and the Act, and meets at least one of four 
additional bases for exemption, described further below.\4\ Nuro 
applied for its exemption on the basis that it ``would make the 
development or field evaluation of a low-emission motor vehicle easier 
and would not unreasonably lower the safety level of that vehicle.'' 
\5\ NHTSA has determined to grant this petition under this basis. In 
addition, NHTSA believes that the Vehicle Safety Act provision allowing 
the agency to grant an exemption when ``compliance with the standard 
would prevent the manufacturer from selling a motor vehicle with an 
overall safety level at least equal to the overall safety level of 
nonexempt vehicles'' \6\ would also be an appropriate basis for 
granting the exemption, based on the evidence provided in the 
application and in public comments, and given NHTSA's institutional 
expertise as the federal agency vested with the responsibility for 
promoting motor vehicle safety.
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    \4\ 49 U.S.C. 30113.
    \5\ 49 U.S.C. 30113(b)(3)(B)(iii).
    \6\ 49 U.S.C. 30113(b)(3)(B)(iv).
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    The three substantive requirements in FMVSS No. 500 from which the 
agency is granting an exemption are the exterior and/or interior mirror 
requirement (S5(b)(6)), the windshield requirement (S5(b)(8)), and the 
backup camera ``Linger time'' requirement (S5(b)(11)).\7\

[[Page 7827]]

The agency is also granting Nuro an exemption from certain provisions 
of the backup camera test procedures in FMVSS No. 111 that cannot be 
performed due to the R2X's unique design.
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    \7\ This provision requires that LSVs meet all of FMVSS No. 111, 
S6.2, ``Rear visibility.'' While exempted R2X vehicles are not 
required to comply with FMVSS No. 111, S6.2.4, ``Linger time,'' they 
are still required to comply with the rest of S6.2.
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    NHTSA made its decision to grant Nuro's petition after making 
several statutorily mandated agency findings, including its finding 
that exempting the R2X from three of the requirements in FMVSS No. 500 
would not lower the safety of the R2X as compared to a compliant 
version of the vehicle--which, as described below, means that this 
finding is sufficient for the safety determinations required under both 
the ``Low Emission Vehicle'' (LEV) and the ``equivalent overall 
safety'' (EOS) bases. To examine the effects of the requested 
exemptions and make this finding, NHTSA compared two nearly identical 
versions of the same vehicle: A compliant version of the R2X \8\ and an 
exempt, noncompliant R2X. This approach enabled the agency to make the 
statutorily required comparisons more concrete and understandable and 
to simplify and focus its analysis on the requirements from which an 
exemption is being sought and on the vehicle features that would be 
directly affected by an exemption.
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    \8\ Nuro has already produced a vehicle that appears to be an 
FMVSS compliant version of the R2X: Its model R1. As noted below, 
this vehicle has already been deployed for certain delivery services 
in Arizona. A discussion comparing the R1 and R2X, which includes a 
side-by-side visual depiction of the two vehicles, is included later 
in this document.
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    The question of whether an exemption would lower the safety of an 
exempt version of the R2X as compared to a compliant version of the 
vehicle turns on the very limited differences between those two 
versions of the R2X, which are only that the exempted R2X would not 
comply with the certain requirements described in this notice. 
Importantly, under the Vehicle Safety Act, manufacturers are permitted 
include any design feature they want on a vehicle so long as the 
vehicle conforms to the FMVSS, and the vehicle does not contain a 
defect that poses an unreasonable risk to safety. As discussed in more 
detail below, because NHTSA does not currently have in place FMVSS 
requirements that regulate Automated Driving System (ADS) driving 
capability, and NHTSA does not have any basis to believe that it poses 
an unreasonable risk to safety, no barrier prevents including such a 
system on a vehicle. Moreover, because LSVs (unlike most vehicle 
classes) are not required to have human-operated driving and signaling 
controls, nothing in the FMVSS prevents a manufacturer from producing 
an LSV without manual controls that is operated exclusively by an ADS. 
Given that both an exempted and compliant R2X would have no occupants 
and would operate without a human driver, compliance with the three 
requirements from which Nuro seeks an exemption would not provide a 
safety benefit.
    First, the requirement for internal and external mirrors is meant 
to improve situational visibility for human drivers, who internalize 
information about the driving environment through direct or reflected 
line of sight. In a vehicle without manual controls that operates using 
an ADS, mirrors do not serve a safety purpose because the ADS perceives 
the driving environment using cameras and sensors that directly feed it 
information about the vehicle's surroundings. Moreover, because 
exterior mirrors protrude from the side of the vehicle, they may act as 
a potential hazard to other road users in certain situations. Second, 
the requirement for a windshield made of compliant glazing material is 
meant to protect human occupants from intrusion, ejections, or 
laceration while ensuring driver visibility. In an occupantless vehicle 
that operates using an ADS, there are no human occupants for the 
glazing to protect, and, as we have already noted, visibility through 
the windshield is not a concern because the ADS obtains information 
about the driving environment through the use of cameras and sensors. 
Lastly, the requirement that a rearview camera image cease to be 
illuminated (i.e., ``linger'') after shifting from reverse is meant to 
avoid distraction of the human operator. Without a human driver, there 
is no risk of distraction. Further, by permitting the backup camera 
system to remain active in all driving situations, the ADS has more 
consistent access to information about the area immediately behind the 
vehicle, which may assist the ADS in performing the driving task.\9\
---------------------------------------------------------------------------

    \9\ We note that Nuro also asked for an exemption from the 
backup camera ``Deactivation'' requirement (FMVSS No. 111, S6.2.5), 
and from certain portions of the FMVSS No. 111 test procedures for 
the ``Field of View'' and ``Size'' requirements (FMVSS No. 111, 
S6.2.1 and S6.2.2). NHTSA has deemed these requests moot for the 
reasons explained later in the document, so they will not be 
discussed extensively in the Executive Summary.
---------------------------------------------------------------------------

    Based on its engineering expertise and the information available to 
it, NHTSA finds that exempting the R2X from these three requirements 
would result in a vehicle that is at least as safe as a compliant 
version of the R2X. NHTSA has also determined that an exemption would 
be consistent with the public interest and the Safety Act because, by 
allowing for the manufacture and commercial deployment of their desired 
design vehicle, an exemption would further the development of 
innovative technologies used in the R2X (most notably, its ADS), which 
could lead to safety, environmental, and economic benefits to the 
communities in which the R2X operates, and could eventually lead to 
benefits for other communities where ADS vehicles are deployed in the 
future. Moreover, an exemption would further the development and 
implementation of innovative business models, like Nuro's delivery 
service, for putting those technologies to use. This determination is 
consistent not only with NHTSA's exercise of its longstanding safety 
authority and expertise on motor vehicle issues, but also, with the 
broad authority that Congress vested in the Secretary of Transportation 
to grant exemptions in the public interest.
    The R2X will be the first ADS vehicle exempted under NHTSA's 
general exemption authority, and, according to Nuro, will be deployed 
as part of a commercial operation that will involve frequent 
interaction with the public. Accordingly, the agency has taken efforts 
to ensure the vehicles operate in as safe a manner as a non-exempted 
vehicle. Specifically, NHTSA has determined that it is in the public 
interest to establish a number of reporting and other terms of 
deployment of the vehicles that will apply throughout the useful life 
of these vehicles--violation of which can result in the termination of 
this exemption. The agency also notes that it retains the full suite of 
its investigative and enforcement authorities with respect to Nuro's 
vehicles and operations.

II. Relevant Legal Authority and Regulations

a. Statutory Requirements for Temporary Exemption Petitions

    The National Traffic and Motor Vehicle Safety Act (Vehicle Safety 
Act), codified at Chapter 301 et seq., of title 49, United States Code, 
provides the Secretary of Transportation with broad authority to exempt 
motor vehicles from an FMVSS or bumper standard on a temporary basis, 
under specified circumstances, and on terms the Secretary deems 
appropriate. This authority is set forth at 49 U.S.C. 30113. The 
Secretary has delegated the authority for implementing this section to 
NHTSA.\10\
---------------------------------------------------------------------------

    \10\ 49 CFR 1.95.

---------------------------------------------------------------------------

[[Page 7828]]

    In exercising this authority, NHTSA must look comprehensively at 
the request for exemption and find that an exemption would be 
consistent with the public interest and with the objectives of the 
Vehicle Safety Act.\11\ In addition, NHTSA must make at least one of 
the following more-focused findings, which NHTSA commonly refers to as 
the ``basis'' for the exemption:
---------------------------------------------------------------------------

    \11\ 49 U.S.C. 30113(b)(3)(A).
---------------------------------------------------------------------------

    (i) Compliance with the standard[s] [from which exemption is 
sought] would cause substantial economic hardship to a manufacturer 
that has tried to comply with the standard[s] in good faith;
    (ii) the exemption would make easier the development or field 
evaluation of a new motor vehicle safety feature providing a safety 
level at least equal to the safety level of the standard;
    (iii) the exemption would make the development or field evaluation 
of a low-emission motor vehicle easier and would not unreasonably lower 
the safety level of that vehicle; or
    (iv) compliance with the standard would prevent the manufacturer 
from selling a motor vehicle with an overall safety level at least 
equal to the overall safety level of nonexempt vehicles.\12\
---------------------------------------------------------------------------

    \12\ 49 U.S.C. 30113(b)(3)(B).
---------------------------------------------------------------------------

    NHTSA's procedural regulations implementing these statutory 
requirements are codified at 49 CFR part 555, ``Temporary Exemption 
from Motor Vehicle Safety and Bumper Standards.''
    The statute and implementing regulations provide the Secretary and, 
as delegated, NHTSA with significant discretion in making these 
required determinations.\13\ As the expert agency in automotive safety 
and the interpretation of its existing standards, NHTSA has significant 
discretion in making the safety findings required under these 
provisions. Further, the broad authority to determine whether the 
public interest and general goals of the Vehicle Safety Act will be 
served by granting the exemption allows the Secretary to consider many 
diverse effects of the exemption, including: The overall safety of the 
transportation system beyond the analysis required in the safety 
determination; how an exemption will further technological innovation; 
economic impacts, such as consumer benefits; and environmental effects.
---------------------------------------------------------------------------

    \13\ Cf. Geier v. American Honda Motor Co., 529 U.S. 861, 883 
(2000) (explaining that, in the context of interpreting the Vehicle 
Safety Act's preemption provisions, ``Congress has delegated to DOT 
authority to implement the statute; the subject matter is technical; 
and the relevant history and background are complex and extensive,'' 
and, thus, ``[t]he agency is likely to have a thorough understanding 
of its own regulation and its objectives and is `uniquely qualified' 
to comprehend the likely impact of state requirements,'' concluding 
that, ``[i]n these circumstances, the agency's own views should make 
a difference.'') (internal citations omitted).
---------------------------------------------------------------------------

b. Low Speed Vehicles (LSVs) and FMVSS No. 500

    NHTSA defines a low-speed vehicle (LSV) as ``a motor vehicle, (1) 
[t]hat is 4-wheeled; (2) [w]hose speed attainable in 1.6 km 
[kilometers] (1 mile) is more than 32 kilometers per hour (20 miles per 
hour) and not more than 40 kilometers per hour (25 miles per hour) on a 
paved level surface, and (3) [w]hose GVWR [gross vehicle weight rating] 
is less than 1,361 kilograms (3,000 pounds).'' \14\
---------------------------------------------------------------------------

    \14\ 49 CFR 571.3.
---------------------------------------------------------------------------

    Unlike other vehicle categories that must meet a wide array of 
FMVSSs and other vehicle standards, LSVs are only required to meet a 
single standard: FMVSS No. 500, ``Low-speed vehicles.'' Currently, 
FMVSS No. 500 requires that LSVs be equipped with headlamps, stop 
lamps, turn signal lamps, taillamps, reflex reflectors, parking brakes, 
exterior and/or interior mirrors, a windshield constructed from FMVSS 
No. 205-compliant glazing, seat belts, a vehicle identification number, 
and a rear visibility system that complies with S6.2 of FMVSS No. 111 
(i.e., a backup camera). In addition, all electric LSVs manufactured on 
or after September 1, 2020 will be required to comply with FMVSS No. 
141, ``Minimum Sound Requirements for Hybrid and Electric Vehicles.''
    NHTSA created the LSV classification and established FMVSS No. 500 
in June 1998 in response to safety concerns over the growing use of 
golf cart-sized, 4-wheeled ``Neighborhood Electric Vehicles'' (NEVs) on 
public roads.\15\ In developing FMVSS No. 500, NHTSA determined that, 
given the speed and weight limitations of the LSV classification, and 
the closed or controlled environments in which LSVs typically operate 
(usually planned communities and golf courses), there was not a safety 
need to apply the full range of FMVSS to these vehicles. Moreover, at 
the time NHTSA was developing the LSV standard, some States had begun 
to enact laws limiting where and when speed-limited vehicles like LSVs 
could operate, and currently most States have enacted legal 
restrictions on where LSVs can operate.\16\ Accordingly, the safety 
equipment the that the agency determined should be required under FMVSS 
No. 500 is far more limited than what is required for other vehicle 
categories.
---------------------------------------------------------------------------

    \15\ 63 FR 33194 (June 17, 1998).
    \16\ See ``Summary of State Speed Laws, Twelfth Edition,'' 
December 2013, DOT HS 811 769, available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/summary_state_speed_laws_12th_edition_811769.pdf.
---------------------------------------------------------------------------

III. Nuro's Petition

    NHTSA received Nuro's petition for a temporary exemption on October 
23, 2018, seeking an exemption from three of the requirements that 
apply to LSVs: The exterior and/or interior mirror requirement (FMVSS 
No. 500, S5(b)(6)), the windshield requirement (FMVSS No. 500, 
S5(b)(8)), and the backup camera ``Linger time'' and ``Deactivation'' 
requirements (FMVSS No. 500, S5(b)(11); FMVSS No. 111, S6.2.4 & 
S6.2.5). In addition, Nuro requested an exemption from portions of the 
test procedures in FMVSS No. 111 that relate to the backup camera 
``Field of view'' and ``Size'' requirements. Nuro submitted its 
petition under the basis that an exemption would make easier the 
development or field evaluation of a low-emission vehicle (LEV) and 
that an exemption would not unreasonably lower the safety of that 
vehicle. As described in Nuro's petition, the vehicle for which Nuro 
requested an exemption, the ``R2X,'' would be an occupantless, electric 
LSV that is designed to be operated almost exclusively by an ADS. 
According to Nuro, the R2X would not be sold, but rather would be 
operated by Nuro in partnerships with grocery stores and other 
merchants to autonomously deliver goods to nearby customers.
    Nuro argued in its petition that provisions of FMVSS No. 500 from 
which it is seeking an exemption require the inclusion of safety 
features that do not serve a safety purpose on the R2X, due to the fact 
that the R2X is operated by an ADS and does not have any occupants. 
Moreover, Nuro argued that including these required features would 
reduce the safety of the R2X. Nuro's arguments for its three exemption 
requests are summarized in the table below:

[[Page 7829]]



----------------------------------------------------------------------------------------------------------------
                                                                                         Nuro's argument for why
 Requirement from which an exemption    Safety purpose of the   Nuro's argument for why    compliance would be
             is requested                    requirement         the safety purpose is      detrimental to the
                                                                not relevant to the R2X     safety of the R2X
----------------------------------------------------------------------------------------------------------------
Exterior Mirrors, FMVSS No. 500,       To provide the driver    The R2X's ADS does not   Exterior mirrors
 S5(b)(6).                              of the LSV with          use mirrors to           increase pedestrian
                                        information about the    perceive its             strike risk, and
                                        driving environments     surroundings for         interfere with the
                                        to the rear.             purposes of performing   R2X's pedestrian
                                                                 the driving task.        safety features such
                                                                                          as rounded corners.
Windshield made from FMVSS No. 205-    To prevent the ejection  The R2X does not have    FMVSS No. 205-compliant
 compliant glazing material, FMVSS      of vehicle occupants,    occupants who need       glazing is both heavy
 No. 500 S5(b)(8).                      and to ensure forward    protection, and the      and rigid and must be
                                        visibility for the       ADS does not require a   held in place by a
                                        driver.                  transparent windshield   rigid frame, and so it
                                                                 to perceive the          would interfere with
                                                                 driving environment in   plans to provide a
                                                                 front of the vehicle.    ``front-end safety
                                                                                          system, including
                                                                                          rounded contouring,
                                                                                          softer materials, and
                                                                                          a `crumple zone' '' on
                                                                                          exempted vehicles.
Backup Camera ``Linger time'' and      Linger time: To prevent  The R2X's ADS is not a   Because R2X's ADS uses
 ``Deactivation'' requirements, FMVSS   the driver from being    human. It can process    its rearview cameras
 No. 500 S5(b)(11); FMVSS No. 111       distracted by the        the information from     during forward motion
 S6.2.4 & S6.2.5 17.                    rearview image when      all of its cameras       to gain a
                                        traveling in the         simultaneously,          comprehensive
                                        forward direction.       regardless of the        understanding of its
                                       Deactivation: To allow    direction of their       environment and avoid
                                        deactivation of the      aim, without             collisions with
                                        image either when the    distraction.             vehicles or objects
                                        driver modifies the                               approaching from the
                                        view, or the vehicle                              rear, deactivating the
                                        direction selector is                             view to these cameras
                                        removed from the                                  while in forward
                                        reverse position.                                 motion would decrease
                                                                                          the vehicle's safety.
----------------------------------------------------------------------------------------------------------------

    In addition, while Nuro stated that the R2X would conform to the 
backup camera ``Field of view'' (FOV), ``Size,'' and ``Response time'' 
requirements (FMVSS No. 111, S6.2.1, S6.2.2, S6.2.3), Nuro requested an 
exemption from portions of the test procedures in FMVSS No. 111 related 
to those requirements, because the design of the R2X precluded those 
test procedure steps from being executed. Nuro provided an alternative 
test procedure that it argued would enable NHTSA to verify the R2X's 
compliance with the FOV and Size requirements through the use of the 
vehicle's remote operator system. Nuro supported its arguments with the 
analyses and documentation required under 49 CFR 555.6, which are 
discussed in our safety analysis below.
---------------------------------------------------------------------------

    \17\ As is explained later in this document, NHTSA has 
determined that Nuro's exemption request from the ``Deactivation'' 
requirement (FMVSS No. 111, S6.2.5) is moot. Therefore, although 
this request is discussed in this summary of Nuro's petition, it is 
not discussed in the agency's safety analysis or findings.
---------------------------------------------------------------------------

    Nuro stated in its petition that granting its exemption would be in 
the public interest and consistent with the Vehicle Safety Act because 
the R2X incorporates various design features that enable the ADS to 
operate reliably, and minimize safety risks that may occur if the ADS 
malfunctions or otherwise encounters a driving situation it cannot 
handle. Nuro also argued that enabling it to field test its ADS would 
lead to downstream environmental improvements and economic 
productivity.
    It is important to note that the most unusual characteristics of 
the R2X--its lack of occupants and autonomous operation--do not require 
an exemption to be included on the R2X, as there is nothing in the 
FMVSSs that preclude Nuro from manufacturing a fully compliant version 
of the R2X that includes these two novel design features.\18\ In fact, 
within two months of submitting its petition, Nuro began testing on 
public roads an occupantless, low-speed ADS vehicle that the company 
states it has certified as FMVSS-compliant. Nuro deployed this vehicle, 
the ``R1,'' in December 2018 as part of a grocery delivery testing 
program in partnership with a Kroger location in Scottsdale, Arizona. 
Based on Nuro's descriptions in its public comment, NHTSA understands 
the R1 to have been an occupantless, low-speed ADS vehicle that has a 
very similar design to the R2X, except that the R1 was equipped with 
exterior mirrors, a windshield constructed out of FMVSS No. 205-
compliant glazing, and a backup camera that meets the ``Linger time'' 
requirement of FMVSS No. 111, S6.2.4. (See Figures 1 and 2 below for a 
visual comparison of the R1 and R2X vehicles.) For purposes of NHTSA's 
analysis of Nuro's petition, NHTSA assumes that a compliant version of 
the R2X would also differ from an exempted R2X in that the compliant 
R2X would be equipped with these features. This assumption is 
reasonable because such equipment is required by law unless subject to 
an exemption.
---------------------------------------------------------------------------

    \18\ The Vehicle Safety Act provides that, for aspects of 
vehicle performance that are not covered by an FMVSS, the only 
Federal restriction on the vehicle's performance is that the vehicle 
cannot contain a defect that poses an unreasonable risk to safety. 
Because ADS driving capability is not regulated under the FMVSS, and 
LSVs are not required to have human-operated driving and signaling 
controls, no regulatory barrier prevents Nuro from deploying the 
R2X's ADS on a fully compliant version of the vehicle. Moreover, 
given Nuro's track record with on-road testing of its ADS systems, 
NHTSA does not have a basis to believe that the R2X's ADS poses an 
unreasonable risk to safety.

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[[Page 7830]]

[GRAPHIC] [TIFF OMITTED] TN11FE20.000

IV. Notice of Receipt

    NHTSA published its Notice of Receipt of Nuro's exemption petition 
in the Federal Register on March 19, 2019.\19\ In addition to 
summarizing the petition, the Notice of Receipt posed 39 questions for 
the public on a variety of topics, including the appropriateness of the 
LEV exemption basis, the safety of the R2X, the performance of the 
R2X's ADS, whether an exemption would be in the public interest, and 
potential terms or conditions that NHTSA may impose should the agency 
grant the petition. Given the novel issues raised by the fact that the 
R2X is an occupantless ADS vehicle, NHTSA provided the public with a 
60-day comment period, instead of the 30 days normally provided for an 
exemption petition.
---------------------------------------------------------------------------

    \19\ 84 FR 10172.
---------------------------------------------------------------------------

    In response to the Notice of Receipt, NHTSA received 24 comments 
from a variety of commenters, including trade associations, individual 
manufacturers, advocacy groups, and individuals. The trade associations 
that submitted comments were the Alliance of Automobile Manufacturers 
(the Alliance), the American Trucking Associations (ATA), the Consumer 
Technology Association (CTA), the Association for Global Automakers 
(Global), and the National Society of Professional Engineers (NSPE). 
NHTSA also received comments from the individual vehicle manufacturer 
Local Motors. The advocacy groups that submitted comments were the 
American Automobile Association (AAA), the American Association of 
Motor Vehicle Administrators (AAMVA), Advocates for Highway Safety 
(Advocates), Center for Auto Safety (CAS), DEVCO, and Securing 
America's Future Energy (SAFE). In addition, NHTSA received comments 
from Kroger, Inc., the Mercatus Center of George Mason University, the 
Center for Autonomous Vehicles and Sensor Systems, Edge Case Research, 
the Mayor of Scottsdale, Arizona, and the Scottsdale, Arizona Chief of 
Police. In addition, NHTSA received a comment from the petitioner 
itself. The major points raised by the commenters are briefly 
summarized below, and are discussed in greater detail in later sections 
of this document.
    The principal comments made by commenters who were generally 
critical of Nuro's petition were:
     The LEV basis is an inappropriate basis under which to 
consider Nuro's petition because the purpose of that exemption basis is 
to encourage the development of low-emission propulsion technologies.
     The petition did not include sufficient information about 
the ability of the ADS to perform the driving task (especially as 
compared to a human driver), the R2X's Operational Design Domain (ODD), 
or the operational details of Nuro's remote operator system.
     The petition did not include documentation demonstrating 
the efficacy of some of the safety features Nuro describes in the 
petition, such as pedestrian ``crumple zones.''
     The petition does not sufficiently address the issue of 
cybersecurity.
     If NHTSA were to grant the petition, the agency should 
impose extensive reporting requirements on Nuro that include providing 
NHTSA and/or the public with information about ADS performance. These 
reporting requirements should last for the life of the vehicle.
     Nuro should be required to coordinate extensively with 
local authorities in the communities in which the R2X will operate.
    The principal comments made by commenters who were generally 
favorable to Nuro's petition were:
     The LEV basis is an appropriate exemption basis under 
which to consider Nuro's petition because the R2X meets the 
qualifications for being an LEV, and because one benefit of vehicles 
like the R2X is lower overall emissions.
     The ability of the ADS to perform the driving task should 
not be considered as part of NHTSA's safety analysis of Nuro's 
petition, because the compliant version of the R2X against which NHTSA 
must compare an exempted R2X would also be equipped with an ADS.
     The three requirements from which Nuro sought an exemption 
do not serve a safety purpose on a vehicle that is operated exclusively 
by an ADS.
     If NHTSA were to deny the petition, this would effectively 
require Nuro to equip the R2X with extraneous equipment (i.e., mirrors 
and glazing material) that could decrease the safety of the vehicle.

[[Page 7831]]

     If NHTSA imposes terms that include mandatory data 
reporting, it should not be unreasonably broad, and should be limited 
to the two-year exemption period.
    NHTSA also received several comments that were either general 
discussions of the role of exemptions in the regulation of ADS 
vehicles, or previously published newspaper articles or academic papers 
that discuss automated vehicle policy generally. While the policy 
considerations and issues discussed in these comments are certainly 
relevant to NHTSA's and the Department's Automated Vehicle policy 
generally, they are not directly pertinent to the findings that NHTSA 
must make regarding Nuro's specific petition, and thus are not 
extensively discussed in this document. However, we note that the 
agency shares some of the concerns some of the commenters raised about 
ADS safety, and has conditioned this exemption grant on terms that the 
agency believes will appropriately mitigate potential risk and ensure 
the agency can maintain adequate oversight of deployed R2X vehicles.
    Following the publication of the Notice of Receipt, at Nuro's 
written request, NHTSA met with representatives of Nuro on April 11, 
2019, at NHTSA headquarters.\20\ Nuro stated that it requested the 
meeting to provide the agency with an opportunity to improve the 
agency's understanding of the R2X's specifications and how it would be 
used. Nuro offered to participate in a more technical follow-up call, 
which took place on July 18, 2019. Both of these meetings clarified 
various operational and technical details about the R2X (e.g., the 
capacity of the vehicle's propulsion battery), as well as some details 
about the operation of the vehicle's ADS. The agency did not learn any 
new information relevant to its evaluation of Nuro's petition. Finally, 
NHTSA held an additional call with Nuro on August 23, 2019, to request 
clarification on how Nuro intended to certify that the R2X complies 
with the portions of FMVSS No. 111 backup camera requirements from 
which Nuro did not seek an exemption. As Nuro did not seek an exemption 
for the performance requirements discussed in this call, the 
information NHTSA learned in this call was not germane to the agency's 
decision to grant or deny the petition. NHTSA's decision to grant 
Nuro's petition is based entirely on public information and views 
provided in the petition and public comments.\21\
---------------------------------------------------------------------------

    \20\ NHTSA's regulations entitle any interested person to, upon 
written request to the agency, appear informally before an 
appropriate official to discuss an exemption petition or an action 
taken in response to a petition. See 49 CFR 555.7(c).
    \21\ These discussions are described in a memorandum that can be 
found in the docket indicated in the header of this notice.
---------------------------------------------------------------------------

V. Selection of Statutory Basis for Analyzing the Merits of the 
Petition

    NHTSA has determined that it is appropriate to consider Nuro's 
petition under both the ``Low-Emission Vehicle'' (LEV) and ``Equivalent 
overall safety'' (EOS) exemption bases, and has decided to evaluate 
Nuro's petition under both bases.
    Nuro submitted its petition for an exemption from FMVSS No. 500 
under the LEV exemption basis, which authorizes NHTSA to grant an 
exemption if doing so ``would make the development or field evaluation 
of a low-emission motor vehicle easier and would not unreasonably lower 
the safety level of that vehicle.'' \22\ NHTSA also sought comment on 
whether it would also be appropriate to consider Nuro's petition under 
the ``new safety feature'' (``NSF'') \23\ or ``equivalent overall 
safety'' (``EOS'') \24\ exemption bases.\25\ The key substantive 
difference between the LEV basis and these other two bases is that LEV 
basis would allow for the deployment of a vehicle that lowers safety, 
so long as that lowering is not unreasonable.
---------------------------------------------------------------------------

    \22\ 49 U.S.C. 30113(b)(3)(B)(iii)
    \23\ 49 U.S.C. 30113(b)(3)(B)(ii)
    \24\ 49 U.S.C. 30113(b)(3)(B)(iv)
    \25\ See Notice of Receipt, Question 3.
---------------------------------------------------------------------------

    NHTSA received comments on the appropriateness of the LEV exemption 
basis from AAMVA, Advocates, Global, and SAFE. AAMVA and Advocates both 
argued that the LEV exemption basis may not be appropriate despite the 
R2X's LEV status because the specific requirements from which Nuro 
requested an exemption are unrelated to the R2X's electric propulsion 
system. According to AAMVA, the NSF basis would be preferable because 
the design features that are the subject of the exemption relate to the 
removal of the driver (although AAMVA does not explain why this makes 
the NSF basis preferable over EOS).\26\ Advocates did not express a 
view on what an appropriate basis would be, but did express concern 
that the LEV basis would allow for lowering the level of safety of the 
exempted vehicle, even if NHTSA did not find such a lowering to be 
unreasonable.\27\
---------------------------------------------------------------------------

    \26\ See NHTSA-2019-0017-0025.
    \27\ See NHTSA-2019-0017-0026.
---------------------------------------------------------------------------

    Conversely, Global \28\ and SAFE \29\ argued that the LEV basis is 
appropriate for Nuro because vehicles like the R2X could potentially 
reduce emissions by reducing the number of trips made in conventional 
(i.e., internal combustion engine) vehicles, and by performing the 
driving task more efficiently. In addition, SAFE notes that NHTSA has 
previously granted petitions on the LEV basis for exemptions that are 
not directly related to the development of a new low-emission 
propulsion system, and that the petitioners in those cases argued that 
their primary purpose for seeking an exemption was either the 
development of low-emission propulsion technologies \30\ or to allow a 
vehicle with a new low-emission propulsion technology to be brought to 
market more quickly or cheaply.\31\
---------------------------------------------------------------------------

    \28\ See NHTSA-2019-0017-0022.
    \29\ See NHTSA-2019-0017-0016.
    \30\ E.g., Toyota Motor North America, Inc.; Grant of Petition 
for Temporary Exemption from an Electrical Safety Requirement of 
FMVSS No. 305, 80 FR 101.
    \31\ E.g., Greenkraft Inc.; Grant of Application for a Temporary 
Exemption from FMVSS No. 108, 80 FR 12057.
---------------------------------------------------------------------------

    First, NHTSA has determined that the LEV basis is appropriate for 
Nuro's petition. Based upon its interpretation of both the Vehicle 
Safety Act and part 555, and consistent with prior agency grants of 
exemption petitions, NHTSA has determined to grant the petition under 
the LEV basis. The Vehicle Safety Act requires that NHTSA find that the 
exemption is in the public interest and consistent with the Vehicle 
Safety Act and (1) that the vehicle is an LEV, (2) that an exemption 
would make easier the development or field evaluation of the vehicle, 
and (3) that an exemption would not unreasonably lower the safety of 
the vehicle. It does not state that NHTSA must find a nexus between the 
exemption and the LEV status of the exempted vehicle.\32\ Further, part 
555 also does not explicitly require this nexus.\33\ The agency notes 
that not

[[Page 7832]]

requiring a nexus actually incentivizes that more vehicles with 
advanced technologies be designed with low emission technologies, even 
off the shelf technologies, which furthers the overarching goal of 
allowing more LEVs on the roads. Finally, granting an exemption under 
this basis is consistent with the agency's past practice in its earlier 
grants to both Toyota and Greenkraft, as cited by SAFE.
---------------------------------------------------------------------------

    \32\ We note, however, that it is within NHTSA's discretion to 
determine what constitutes an ``unreasonable'' lowering of vehicle 
safety. While NHTSA does not need to make this determination here 
because we have found no decrease in safety, the innovativeness and 
emission-reducing potential of the low emission technology in the 
vehicle may be a factor in considering whether any lowering of 
safety is reasonable or not, as a more innovative technology may 
have greater environmental benefits than a more established 
technology. On the other hand, established technologies that have 
been mass produced for years and have widespread availability, such 
as those underpinning battery electric vehicles, cannot reasonably 
justify much, if any, lessening of safety.
    \33\ The agency acknowledges that part 555.2 explains that the 
purpose of the exemption process is to ``provide a means by which 
manufacturers of motor vehicles may obtain temporary exemptions . . 
. on the basis of . . . facilitation of the development of . . . 
low-emission engine features,'' and that one of the required 
submissions demonstrating safety under part 555.6(2)(i) is, ``[a] 
detailed description of how the motor vehicle equipped with the low-
emission engine would, if exempted, differ from one that complies 
with the standard.'' NHTSA, though, does not believe that either of 
the provisions require a nexus, but simply reflect a general purpose 
of the requirement and information that should be submitted if 
relevant. In all events, the language of the governing statute 
controls, as discussed above.
---------------------------------------------------------------------------

    We also agree with AAMVA and Advocates that, since innovation 
related to safety and mobility is the central focus of Nuro's petition, 
the agency may also consider the petition under the EOS or NSF ground. 
Nuro, in its comments, expressed openness to being considered under the 
EOS basis instead of the LEV, though Nuro did not amend its application 
as part of these comments.\34\ For these reasons, we have considered 
whether the petition should also be granted under the NSF or EOS bases.
---------------------------------------------------------------------------

    \34\ See NHTSA-2019-0017-0023. On page 3, Nuro states: ``We 
believe the information in the petition, as supplemented in these 
comments, supports a determination under 49 U.S.C. 
30113(b)(3)(B)(iv) that R2X has an overall safety level at least 
equal to the overall safety level of nonexempt vehicles, and would 
not object if the Department chose to grant the petition on that 
basis.''
---------------------------------------------------------------------------

    As between the NSF and EOS bases, NHTSA has determined that the EOS 
basis is more appropriate than the NSF basis here. Although it is 
possible that an exemption could make easier the development or field 
testing of a new (i.e., innovative) safety feature, either the R2X's 
ADS or one of the other features described in the application (e.g., 
the pedestrian crash protection systems), those technologies are not 
intended to provide a level of safety equivalence compliance with FMVSS 
No. 500, which does not contemplate ADS driving competence or 
pedestrian safety. Rather, those features are intended to improve the 
safety of aspects of performance that are not regulated under FMVSS No. 
500. Because the NSF basis limits the scope of the agency's safety 
analysis to how an exemption would impact safety solely in terms of 
performance under an individual standard, whereas the EOS basis allows 
NHTSA to consider aspects of a vehicle's safety performance, the EOS 
basis would allow the agency to weigh broader considerations of safety 
that may not be captured at the individual standard level.
    For these reasons, NHTSA has decided to evaluate Nuro's petition 
under both the LEV and EOS exemption bases.

VI. Safety Analysis

    In order to make the statutorily required safety findings to grant 
an exemption under either the LEV or EOS basis, NHTSA must first 
determine whether the level of safety of an exempted vehicle would be 
lower than that of a compliant vehicle. If, based on this analysis, 
NHTSA finds that an exemption would not lower overall safety of the 
vehicle, NHTSA is permitted to grant the petition under both exemption 
bases. Thus, if NHTSA determines that an exemption would not lower the 
safety of the vehicle (which would obviate the need under the LEV basis 
to make the second finding of whether safety is unreasonably lowered), 
the entire safety analysis under the EOS and LEV bases would be 
identical. NHTSA's analysis would only diverge under the two bases if 
NHTSA finds that safety would be lowered, in which case the agency must 
deny the petition under the EOS basis, and may only grant the petition 
under the LEV basis upon finding that an exemption would not 
unreasonably lower the safety of the vehicle.\35\
---------------------------------------------------------------------------

    \35\ We note that NHTSA has determined that the other two 
findings NHTSA must make for both bases as part of its evaluation of 
Nuro's petition--whether granting the exemption would be in the 
public interest and consistent with the Vehicle Safety Act--are 
identical regardless of the exemption basis. As these are not safety 
findings, they are not discussed in this section.
---------------------------------------------------------------------------

    Because the mirror, windshield, and backup camera ``Linger time'' 
requirements are discrete aspects of vehicle performance, we discuss 
them individually in separate subsections below. Note that, because 
NHTSA has deemed moot Nuro's request for exemptions from the backup 
camera ``Deactivation'' requirement, it is not included our safety 
analysis. Rather, the reasons we deemed this request moot are explained 
in a later section.

a. An Exemption From the Requirement That an LSV be Equipped With 
Exterior and/or Interior Mirrors Would Not Lower the Safety of the R2X

    NHTSA has determined that an exemption from the requirement that 
LSVs be equipped with exterior and/or interior mirrors would not lower 
the safety of the R2X, and in fact may incrementally increase the 
safety of the R2X, because mirrors would not serve a safety-related 
purpose on an occupantless LSV operated by an ADS, and the presence of 
protruding exterior mirrors on such a vehicle may increase strike risk 
for pedestrians and other vulnerable road users.
    FMVSS No. 500, S5(b)(6) requires that LSVs be equipped with an 
``exterior mirror mounted on the driver's side of the vehicle and 
either an exterior mirror mounted on the passenger's side of the 
vehicle or an interior mirror.'' Nuro argued in its petition and its 
public comment that, because the safety purpose of these mirrors is to 
enable a human driver to observe objects to the rear of the vehicle, 
the mirror serves no safety function on the R2X. First, according to 
Nuro, the ADS uses an array of sensors to detect objects behind the 
vehicle. Moreover, Nuro states that mirrors serve no auxiliary safety 
purpose for people outside of the vehicle, and their omission reduces 
the risk of striking pedestrians and lowers the mass of the vehicle.
    Commenters who discussed the mirror requirement agreed with Nuro 
that exterior mirrors did not serve a safety function on the R2X. The 
Alliance,\36\ Local Motors,\37\ and the Scottsdale, Arizona Chief of 
Police \38\ all state that the three safety features for which Nuro has 
requested an exemption do not serve a functional purpose on an ADS 
vehicle like the R2X. CTA stated in its comment that if NHTSA were to 
deny Nuro's exemption, the agency would effectively require Nuro to add 
what CTA terms ``extraneous equipment'' that would likely raise the 
risk and severity of a pedestrian strike.\39\
---------------------------------------------------------------------------

    \36\ See NHTSA-2019-0017-0020.
    \37\ See NHTSA-2019-0017-0017.
    \38\ See NHTSA-2019-0017-0019.
    \39\ See NHTSA-2019-0017-0015.
---------------------------------------------------------------------------

    NHTSA agrees with Nuro and the commenters that that mirrors do not 
serve a safety function on a vehicle with no occupants that is operated 
by an L4 ADS, since the ADS perceives the driving environment using a 
suite of sensors that do not rely on the mirrors. Further, NHTSA has 
concluded that the fact that the mirrors protrude from the vehicle 
means that they could potentially increase the risk of injury to 
pedestrians or cyclists, however incrementally and thus concurs with 
Nuro's assertion in the petition about this potential benefit.\40\ 
Moreover, we note that ancillary benefits that mirrors provide, such as 
providing a warning to

[[Page 7833]]

vehicle occupants about hazards (such as approaching cyclists) when 
opening the vehicle door, are not a concern in a vehicle with no 
occupants. Therefore, the removal of said mirrors would, at worst, have 
no impact on the overall level of safety of the vehicle.
---------------------------------------------------------------------------

    \40\ Although the mirrors on LSVs are not required to meet the 
performance criteria in FMVSS No. 111, NHTSA implicitly acknowledges 
through that standard that outside mirrors do present some level of 
safety hazard to pedestrians, because the standard requires that 
outside mirrors be free of ``sharp points or edges that could 
contribute to pedestrian injury.'' FMVSS No. 111, S5.2.1. We see no 
reason why outside mirrors on LSVs would not also present a 
pedestrian strike risk.
---------------------------------------------------------------------------

b. An Exemption From the Requirement That an LSV be Equipped With FMVSS 
No. 205-Compliant Windshield Would Not Lower the Safety of the R2X

    NHTSA has determined that an exemption from the requirement that 
LSVs be equipped with a windshield constructed from FMVSS No. 205-
compliant glazing materials would not lower the safety of the R2X 
because a compliant windshield would not serve a safety-related purpose 
on an occupantless LSV operated by an ADS, due to the fact that a 
windshield is not necessary to assure (human) driver visibility, nor is 
it needed to protect occupants in a crash.
    FMVSS No. 500, S5(b)(8) requires that LSVs be equipped with ``a 
windshield that conforms to the Federal motor vehicle safety standard 
on glazing materials (49 CFR 571.205).'' FMVSS No. 205, ``Glazing 
materials,'' is an equipment standard for glazing materials (i.e., 
glass) used in vehicles to both ensure driver visibility and to 
minimize the risk of occupants being ejected from the vehicle in a 
crash. In its petition, Nuro argued that an FMVSS No. 205-compliant 
windshield would not serve a safety need on the R2X because (1) the R2X 
would not have occupants, so there is no risk that human occupants 
could be injured by an impact with glazing or ejected from the R2X, and 
(2) the R2X uses an ADS to perform the driving task, which does not 
require a transparent windshield to observe the driving environment. 
Nuro further argued that removing the windshield would, in fact, 
improve the safety of the R2X because a windshield constructed out of 
FMVSS No. 205-compliant glazing could injure pedestrians in a collision 
due to its rigidity (if the glazing does not break), or due to the harm 
that could result should the glazing shatter. Nuro also argues that 
equipping the R2X with a compliant windshield would interfere with the 
operation of the R2X's pedestrian ``crumple zones,'' which are designed 
to reduce pedestrian injuries in a crash, because equipping the R2X 
with a compliant windshield would necessitate a more rigid design. Nuro 
notes that, while the R2X would not be equipped with a windshield, the 
front of the vehicle will be equipped with a ``plate'' that resembles 
the appearance of a windshield but is not constructed out of compliant 
glazing, and which deforms to provide pedestrian/cyclist protection in 
case of a crash. Nuro stated that this ``plate'' will serve the 
windshield ancillary safety function of providing other road users with 
a visual cue for the front of the vehicle (and thus, its direction of 
movement).
    Commenters generally did not dispute Nuro's argument that an FMVSS 
No. 205-compliant windshield would not serve a safety purpose on a 
vehicle without occupants. The Alliance \41\ and Local Motors \42\ 
explicitly agreed with Nuro's analysis that a windshield would not 
serve a safety purpose, and CTA stated that, if NHTSA were to deny 
Nuro's exemption, it would effectively require Nuro to add what CTA 
terms ``extraneous equipment'' that would likely raise the risk and 
severity of a pedestrian strike.\43\ While Advocates \44\ and AAMVA 
\45\ did not dispute Nuro's argument that a windshield was not 
necessary, they expressed concern that Nuro did not provide sufficient 
information to assess the effectiveness of the R2X's pedestrian 
``crumple zones'' and rounded edges for mitigating pedestrian injuries 
(though it should be noted that FMVSS No. 500 does not contain 
performance requirements for pedestrian injury mitigation).\46\ The 
Alliance noted that front-end stiffness of LSVs is not regulated under 
FMVSS No. 500.
---------------------------------------------------------------------------

    \41\ See NHTSA-2019-0017-0020.
    \42\ See NHTSA-2019-0017-0017.
    \43\ See NHTSA-2019-0017-0015.
    \44\ See NHTSA-2019-0017-0026.
    \45\ See NHTSA-2019-0017-0025.
    \46\ AAMVA also raised the concern that NHTSA should ensure that 
the material used for the front end of the R2X would keep cargo from 
being ejected in a crash at least as well as an FMVSS No. 205-
compliant windshield. However, NHTSA notes that the R2X does not 
appear to be designed in such a way that a windshield would be the 
only, or even the primary, barrier separating the cargo compartments 
from the outside. See NHTSA-2019-0017-0023.
---------------------------------------------------------------------------

    In its comment, Nuro explained further why it believes that not 
equipping the R2X with an FMVSS No. 205-compliant windshield will 
increase the safety of the R2X.\47\ According to Nuro, the R2X would 
require very sturdy A-pillars to support the weight of an FMVSS No. 
205-compliant windshield, which make it necessary that the front 
outboard corners of the vehicle (which would support the windshield) be 
rigid. Thus, an R2X that complies with the windshield requirement could 
not incorporate the front-end pedestrian ``crumple zone'' crash 
mitigation feature described in its petition. Nuro states that, if 
exempted, the R2X's A-pillars would not need to support as much weight, 
so they could be designed to be deformable in a crash, which would 
allow the front end of the vehicle to absorb impact energy at the sides 
as well as in the center. In addition, Nuro states that the R2X 
voluntarily complies with both FMVSS No. 305, ``Electric-powered 
vehicles: electrolyte spillage and electrical shock protection,'' (49 
CFR 571.305) \48\ and the Bumper Standard (49 CFR part 581).
---------------------------------------------------------------------------

    \47\ See NHTSA-2019-0017-0023.
    \48\ FMVSS No. 305 requires that electric vehicles meet certain 
requirements relating to electrical safety after multiple types of 
barrier crashes that the standard requires to be conducted at speeds 
that exceed 25 mph, the maximum speed for an LSV. See, e.g., FMVSS 
No. 305, S6.1. However, these barrier crashes are typically 
performed using a tow cable to propel the vehicle (as opposed to the 
vehicle's own propulsion system), so it would be possible to run 
these tests on an LSV like the R2X. We note that Nuro does not state 
whether ``compliance'' with FMVSS No. 305 means that the R2X would 
meet the standard's performance criteria after being crashed at the 
R2X's maximum speed of 25 mph, or after being crashed at the higher 
speeds articulated in the standard's test procedures.
---------------------------------------------------------------------------

    NHTSA has concluded that an exemption from the windshield 
requirement would not lower the level of safety of the R2X because the 
safety concerns that the windshield addresses--protecting occupants 
from ejection and intrusion, and ensuring occupants (particularly a 
human driver) can see the driving environment--are not present in the 
R2X, due to its lack of occupants and its operation by an ADS that 
relies on cameras and sensors instead of a human driver.\49\ 
Accordingly, not equipping the R2X with a compliant windshield would, 
at a minimum, have no net safety impact on the R2X. We note that 
NHTSA's determination that an exemption from the windshield requirement 
would not lower the safety of the R2X does not rely on the 
effectiveness of its pedestrian ``crumple zones'' or other safety 
features because, as Advocates and others have noted, Nuro has not 
provided documentation to support the effectiveness of these features. 
While NHTSA encourages manufacturers to include additional safety 
features that are not required under the FMVSS, the lack of data to 
support the effectiveness of these features precludes the agency from 
considering the safety impact of these features in its safety finding.
---------------------------------------------------------------------------

    \49\ We assume that Nuro has designed the R2X so that the 
sensors used by the ADS are not obstructed by whatever material is 
used to cover the front of the vehicle in place of FMVSS No. 205-
compliant glazing.

---------------------------------------------------------------------------

[[Page 7834]]

c. An Exemption From the Requirement That an LSV's Backup Camera Meet 
the ``Linger Time'' Requirement of FMVSS No. 111 Would Not Lower the 
Safety of the R2X

    NHTSA has determined that an exemption from backup camera ``Linger 
time'' requirement (FMVSS No. 111, S6.2.4) would not lower the safety 
of the R2X because the safety concern underlying the linger time 
requirement--driver distraction--does not exist for an occupantless LSV 
operated by an ADS.
    FMVSS No. 500, S5(b)(11) states that LSVs ``shall comply with the 
rear visibility requirements specified in paragraphs S6.2 of FMVSS No. 
111.'' One of the requirements that falls under FMVSS No. 111, S6.2.4, 
limits the duration of the system's ``Linger time,'' which is the 
period in which a rearview image continues to be displayed by the 
backup camera system after the vehicle's transmission has been shifted 
out of reverse gear. Per S6.2.4, the rearview image produced by the 
backup camera system ``shall not be displayed after the backing event 
has ended.'' NHTSA explained in the final rule establishing the backup 
camera requirement that the safety justification for the linger time 
restriction was the possibility that a driver would be distracted by a 
rearview image.\50\ FMVSS No. 111, S6.2.4 currently requires that the 
``Linger time'' period end at the end of the ``backing event.'' \51\
---------------------------------------------------------------------------

    \50\ 79 FR 19177, 19219.
    \51\ FMVSS No. 111 defines the ``backing event'' as an amount of 
time which starts when the vehicle's direction selector is placed in 
reverse, and ends at the manufacturer's choosing, when the vehicle 
forward motion reaches: (a) A speed of 10 mph, (b) a distance of 10 
meters traveled, or (c) a continuous duration of 10 seconds, 
whichever the manufacturer chooses. FMVSS No. 111, S4.
---------------------------------------------------------------------------

    In its petition, Nuro argued that the ``Linger time'' requirement 
does not serve a safety purpose on the R2X because the safety risk it 
is intended to mitigate against--the possibility that a human driver 
would be distracted by the rear visibility image when traveling in the 
forward direction--is not a concern for the R2X, since the R2X uses an 
ADS that is not susceptible to distraction. Nuro further argues that an 
exemption from the ``Linger time'' requirement would, in fact, improve 
the safety of the R2X, as it would eliminate a condition in which the 
R2X's rear-facing camera and sensors shut off, which Nuro says has the 
effect of partially blinding the ADS.
    NHTSA agrees with Nuro that distraction is unlikely to be a concern 
for the R2X's ADS, which is not a human and thus would not be 
susceptible to cognitive distraction.\52\ And we see no reason why 
permitting the ADS to use an additional source of information about the 
driving environment would reduce the safety of the R2X.
---------------------------------------------------------------------------

    \52\ The specific distraction that we discussed in the backup 
camera final rule--the prolonged illumination of the required image 
at night--would not be an issue for the R2X, since the ADS does not 
rely on an illuminated display to perceive the rearview image.
---------------------------------------------------------------------------

d. An Exemption From Portions of the FMVSS No. 111 ``Field of View and 
Image Size Test Procedure'' and ``Image Response Time Test Procedure'' 
Would Not Lower the Safety of the R2X

    NHTSA has determined that an exemption from the provisions in the 
FMVSS No. 111 ``Field of view and image size test procedure'' relating 
to fuel tank loading (S14.1.2.2), driver's seating position 
(S14.1.2.5), and steering wheel adjustment (S14.1.7); and an exemption 
from the provisions of the FMVSS No. 111 ``Image response time test 
procedure'' relating to the driver's door and activation of the 
starting system (S14.2(a)-(c)); would not lower the safety of the R2X 
because the R2X's backup camera would still be required to produce a 
rearview image that meets the substantive performance requirements for 
``Field of view'' (S6.2.1),''Size'' (S6.2.2), and ``Response time'' 
(S6.2.3).
    While Nuro states in its petition that the R2X meets these 
substantive requirements--and thus meets the minimum level of 
performance established by the standard--Nuro requested an exemption 
based on language in a 2016 Chief Counsel's interpretation letter 
issued to Google in 2016.\53\ Nuro cited and quoted language from 
NHTSA's letter to Google in making this request for an exemption. Nuro 
stated: ``Previously, the Department has interpreted `driver' and 
`operator' in FMVSS No. 111 as referring to the self-driving system in 
cases of autonomous vehicles. However, in its letter to Google, the 
Department noted the need for a testing procedure to satisfy itself 
that the images provided to the self-driving system meet the 
requirements for field of view, image size, timing, and durability.'' 
\54\
---------------------------------------------------------------------------

    \53\ See Letter from P. Hemmersbaugh, NHTSA, to C. Urmson, 
Google (Feb. 4, 2016), https://www.nhtsa.gov/interpretations/google-compiled-response-12-nov-15-interp-request-4-feb-16-final.
    \54\ See NHTSA-2019-0017-0002, at 17 (footnote omitted).
---------------------------------------------------------------------------

    In its discussion of FMVSS test procedures, NHTSA's letter to 
Google explained: ``As self-driving technology moves beyond what was 
envisioned at the time when standards were issued, NHTSA may not be 
able to use the same kinds of test procedures for determining 
compliance.'' \55\ The letter explained that ``since the [Vehicle] 
Safety Act creates a self-certification system for compliance, NHTSA's 
verification of a manufacturer's compliance . . . is based on our 
established test procedures.'' \56\ Although the letter recognized that 
test procedures are for NHTSA's use in compliance testing, the letter 
also stated that ``in order for NHTSA to interpret a standard as 
allowing certification of compliance by a vehicle manufacturer, NHTSA 
must first have a test procedure or other means of verifying such 
compliance.'' \57\ To enable Google to certify its vehicles in the 
absence of appropriate test procedures, the agency suggested that 
Google may seek exemptions, as Nuro noted in its petition.\58\
---------------------------------------------------------------------------

    \55\ Letter from P. Hemmersbaugh, NHTSA, to C. Urmson, Google 
(Feb. 4, 2016), https://www.nhtsa.gov/interpretations/google-compiled-response-12-nov-15-interp-request-4-feb-16-final.
    \56\ Id.
    \57\ Id.
    \58\ See NHTSA-2019-0017-0002, at 13.
---------------------------------------------------------------------------

    NHTSA notes that the 2016 interpretation letter to Google diverged, 
without explanation, from NHTSA's longstanding position that 
manufacturers are not required to certify compliance based on NHTSA's 
FMVSS test procedures.\59\ While beyond the

[[Page 7835]]

scope of this notice, NHTSA intends to clarify the application of test 
procedures in a subsequent notice.\60\ However, prior to revisiting 
this issue, NHTSA is considering Nuro's request for an exemption from 
provisions of the test procedures on its merits.\61\
---------------------------------------------------------------------------

    \59\ NHTSA has expressed this concept in both rulemaking and 
letters of interpretation going back several decades. See, e.g., 76 
FR 15902, 15905 & 08 (Mar. 22, 2011) (explaining that 
``manufacturers are not required to test their products in the 
manner specified in the relevant safety standard, or even to test 
the product at all, as their basis for certifying that the product 
complies with all relevant standards. A manufacturer may evaluate 
its products in various ways to determine whether the vehicle or 
equipment will comply with the safety standards and to provide a 
basis for its certification of compliance. Depending on the 
circumstances, the manufacturer may be able to base its 
certification on actual testing (according to the procedure 
specified in the standard or some other procedure), computer 
simulation, engineering analysis, technical judgment or other means 
. . . manufacturers can use their judgment, including engineering or 
technical judgment, to certify vehicles. Testing, as provided in the 
FMVSS, is not required as a matter of law to certify a vehicle. 
Instead, sound judgment may be used.'') (footnote omitted); 36 FR 
5856 (Mar. 30, 1971) (``Manufacturers have the responsibility of 
ensuring, by any methods that constitute due care, that their 
products meet the requirements at the stated level. Normally this is 
done by setting their own test conditions slightly on the `adverse 
side' of the stated level.''); Letter from A. Cooke, NHTSA, to K. 
Manke, Dakota Manufacturing (Apr. 15, 2008), https://isearch.nhtsa.gov/files/07-005971as%20underride%20guards.htm (``Keep 
in mind that the test procedures in FMVSS No. 223 describe how NHTSA 
will test guards for compliance with the standard's requirements, 
and are not binding upon guard manufacturers. A manufacturer is not 
required to use the standard's procedures when certifying compliance 
with the standard.''); Letter from E. Jones, NHTSA, to D. Cole, 
Nat'l Van Conversion Ass'n, Inc. (Nov. 1, 1988), https://isearch.nhtsa.gov/files/3140o.html (``I would like to point out that 
manufacturers are not required by Standard No. 302 to test the 
flammability of their vehicles in only the manner specified in the 
standard. The standard only sets the procedure that the agency will 
use in its compliance testing.'').
    \60\ NHTSA believes that this issue is more appropriately 
addressed in a separate Federal Register notice, rather than in this 
notice addressing a specific petition from a specific manufacturer.
    \61\ NHTSA notes that under its prior, longstanding position 
that manufacturers are not required to certify compliance based on 
NHTSA's FMVSS test procedures, Nuro's request for an exemption from 
provisions of the test procedures would likely have been considered 
moot.
---------------------------------------------------------------------------

    Nuro notes that the R2X is an electric vehicle and does not have a 
gas tank that can be fully loaded with fuel--an express requirement of 
the FMVSS No. 111 test procedures--and, pursuant to the Google 
interpretation described above, is therefore incapable of being 
certified as compliant with the standard.
    Similarly, because of the R2X's occupantless design and exclusive 
ADS operation, the vehicle is not equipped with a driver's seat or a 
display screen, which means that NHTSA is not able to independently 
verify this compliance using the test procedures in FMVSS No. 111.\62\ 
An exemption from the test procedure provisions that require manual 
operation by a human driver to execute would not permit Nuro to equip 
the R2X with a backup camera system that, if installed on a 
conventional vehicle, would produce a rearview image that fails to 
comply with FMVSS No. 111; rather, it permits Nuro to certify the R2X's 
rearview image, which is transmitted directly to the R2X's ADS during 
normal operation, would be able to meet the substantive requirements 
for field of view, size, and response time if it were displayed on a 
screen in a conventional vehicle. Put another way: An exemption from 
the test procedures would not, in any way, permit Nuro to equip the R2X 
with a subpar backup camera system; rather it enables Nuro to 
demonstrate that the R2X's backup camera system transmits to the ADS 
the visual information that would be needed to meet the minimum 
performance criteria in FMVSS No. 111, even if the test procedures in 
FMVSS No. 111 cannot be performed using the R2X.
---------------------------------------------------------------------------

    \62\ Note that FMVSS No. 111 does not require that LSVs be 
equipped with a display screen; it only requires that the LSV 
produce a ``rearview image'' that meets the criteria of S6.2. While 
most conventional vehicles with human drivers comply with this 
requirement through the use of a screen on which the rearview image 
is displayed, the R2X does not have such a screen because, since it 
cannot be operated by a human driver, such a screen is unnecessary.
---------------------------------------------------------------------------

    As part of its exemption request, Nuro provided suggestions for how 
NHTSA could modify the FMVSS No. 111 test procedures to accommodate the 
R2X's unique design:

------------------------------------------------------------------------
                                   Reason it cannot    Nuro's suggested
     Required test condition         be performed        modification
------------------------------------------------------------------------
S14.1.2.2, ``Fuel tank loading''  The R2X is an       Conduct the test
                                   electric vehicle    with the battery
                                   that runs on a      at full charge
                                   charge in a         capacity.
                                   battery, not on
                                   fuel in a fuel
                                   tank.
S14.1.2.5, ``Driver's seat        The R2X has no      Treat a remote
 positioning''.                    driver's seat, or   operator's seat
                                   designated          as the driver's
                                   seating position    seating position.
                                   of any kind.
S14.7, ``Steering wheel           The R2X has no      Conduct the test
 adjustment''.                     steering wheel.     with the wheels
                                                       pointed in the
                                                       forward
                                                       direction, as
                                                       would be
                                                       consistent with
                                                       the test state in
                                                       the standard.
S14.2, ``Image response time      The R2X has no      Perform the test
 test procedure''.                 driver's door to    procedure using
                                   open or close.      the cargo
                                                       compartment
                                                       doors, which are
                                                       the primary
                                                       method for
                                                       accessing the
                                                       interior of the
                                                       R2X.
------------------------------------------------------------------------

    Given the design differences between the R2X and a typical LSV, 
NHTSA has determined that Nuro's proposed modifications to the FMVSS 
No. 111 test procedures are reasonable, since they would condition the 
R2X in the same way as would the test procedures in the standards if 
applied to a conventional vehicle. Most commenters did not discuss 
whether NHTSA should grant Nuro's request for an exemption from the 
FMVSS No. 111 test procedures, or their views on the adequacy of Nuro's 
suggested modifications. The only comment on this subject was from 
AAMVA, which stated that it was ``skeptical'' of what is meant by 
treating the remote operator seat as a driver's seating position. We 
think that Nuro's suggestion to use the remote operator as a stand-in 
for the driver, for purposes of compliance certification, is 
reasonable. The purpose of the FMVSS No. 111 ``Field-of-view,'' 
``Size,'' and ``Response time'' requirements are to ensure that the 
image displayed communicates information about the area behind the 
vehicle to the driver in a format that the driver is able to understand 
from the start of the backing event. If the rearview image meets the 
``Field of view,'' ``Size,'' and ``Response time'' criteria when viewed 
by a remote operator who is located a similar distance from the 
rearview image screen as would be a human driver in a conventional 
vehicle, NHTSA believes this would be sufficient to demonstrate that 
Nuro exercised reasonable care in certifying the R2X because it 
indicates that the ADS is receiving the same information that a human 
driver would receive from the backup camera system in a conventional 
vehicle, and that this information is being transmitted at the start of 
the backing event. Similarly, we believe that Nuro's suggestion that it 
perform test procedures with a fully charged battery in lieu of a 
fully-loaded gas tank, for purposes of compliance certification, is 
reasonable.
    Advocates claimed that the act of applying a vehicle's brakes to 
prevent a back over crash is an integral part of the safety purpose of 
the backup camera, and that NHTSA should therefore incorporate into its 
analysis whether the R2X would appropriately brake in response to an 
object in the backup camera zone. We do not agree with Advocates that 
FMVSS No. 111 extends to how the vehicle must react in response to the 
presence of an object behind the vehicle. Although Congress enacted the 
K.T. Safety Act (the statute that mandated NHTSA to create the backup 
camera requirement) to reduce back over crashes, FMVSS No. 111 requires 
that the driver be provided with information that would enable the 
driver to take action to avoid a back over

[[Page 7836]]

crash.\63\ Specifying appropriate performance requirements for ADS 
brake activation would require significant research that is not 
feasible for purposes of this exemption, applicable to a limited number 
of vehicles. NHTSA notes, however, that Nuro, like all motor vehicle 
manufacturers, must safeguard against safety-related defects.\64\ NHTSA 
would not hesitate to exercise its defect authority should information 
indicate that an ADS does not appropriately brake in response to the 
presence of objects in its vicinity. NHTSA also mitigates any potential 
risk through the limited number of vehicles that can be produced 
pursuant to this exemption, and through the terms and conditions 
described below.
---------------------------------------------------------------------------

    \63\ NHTSA considered this technology as part of the rulemaking 
that established the backup camera requirement. In the Final Rule on 
the subject, NHTSA acknowledged that ``it may be possible that 
automatic braking or other future systems offer comparable or 
greater protection to the public without the use of a rearview 
image,'' but noted that the agency was ``not currently aware of any 
established, objective, and practicable way of testing such systems 
to ensure that they offer a minimum level of protection to the 
public.'' 79 FR 19178, 19203 (Apr. 7, 2014). NHTSA has not yet taken 
action to add an automatic braking element to the backup camera 
requirements in FMVSS No. 111.
    \64\ See 49 U.S.C. 30112(a)(3), 30118-20.
---------------------------------------------------------------------------

VII. Nuro's Requests for Exemptions From the LSV Mirror, Windshield, 
and Backup Camera ``Linger Time'' Requirements Are Granted Under Both 
the ``Low-Emission Vehicle'' (LEV) and ``Equivalent Overall Safety'' 
(EOS) Exemption Bases

    Based on the contents of Nuro's public petition and the comments 
received in response to the Notice of Receipt, NHTSA has made the 
findings required to grant Nuro's petition for an exemption from the 
mirror, windshield, and backup camera ``Linger time'' requirements 
under both the Low-Emission Vehicle basis and the Equivalent Overall 
Safety basis.

a. Findings Specific to the LEV basis

i. The R2X Is a Low-Emission Vehicle
    A vehicle is considered a low-emission vehicle for the purposes of 
Sec.  [thinsp]30113 of the Vehicle Safety Act if it emits air 
pollutants significantly below the standards for new vehicles 
applicable to the vehicle set under Sec.  [thinsp]202 of the Clean Air 
Act. Since the R2X is an electric vehicle and would not emit any such 
pollutants, it is a low-emission vehicle under Sec.  [thinsp]30113. 
This issue was not contested in the public comments. Further, as 
discussed above, there is no need for the agency to find a nexus 
between the fact that the vehicle is an LEV and the reason the vehicle 
is non-compliant.

ii. An Exemption From the Mirror, Windshield, Backup Camera ``Linger 
Time'' Requirements, and Portions of the Backup Camera Test Procedures 
Relating to Rearview Image FOV, Size, and Response Time, Would Not 
Unreasonably Lower the Safety Level of the R2X

    Given that an exemption from the mirror, windshield, and backup 
camera ``Linger time'' requirements would not lower the level of safety 
of the R2X, NHTSA finds that an exemption would not unreasonably lower 
the safety of the R2X as compared to that of a compliant R2X. In 
addition, NHTSA finds that, because an exemption from the FMVSS No. 111 
test procedure provisions relating to fuel tank loading (S14.1.2.2), 
driver's seating position (S14.1.2.5), steering wheel adjustment 
(S14.1.7), and the opening of the driver's door and activation of the 
starting system (S14.2(a)-(c)) would not affect whether the R2X's 
backup camera system meets the substantive requirements for ``Field of 
view'' (S6.2.1), ``Size'' (S6.2.2), and ``Response time'' (S6.2.3), an 
R2X exempted from these test procedure provisions would not lower the 
safety of the vehicle. Because NHTSA finds that safety would not be 
lowered, NHTSA does not reach the question of whether safety would be 
unreasonably lowered.

iii. An Exemption From the Mirror, Windshield, and Backup Camera 
``Linger Time'' Requirements Would Make Easier the Development or Field 
Evaluation of the R2X

    An exemption from the mirror, windshield, and backup camera 
``Linger time'' requirements would make easier the development or field 
evaluation of the R2X because it will permit Nuro to deploy the R2X 
without equipping the vehicle with extraneous safety features that, as 
noted earlier, NHTSA has found to not serve a safety function on an 
occupantless low-speed ADS vehicle.
    Nuro argues in its petition that compliance with these requirements 
potentially imposes costs on Nuro and make it more difficult to field 
test the R2X because compliance ``increases pedestrian strike risk, 
adds mass, and worsens the impact of collisions.'' NHTSA agrees that, 
because compliance would require the R2X to be equipped with additional 
equipment, compliance with the standard would increase the cost of 
performing field evaluations of the R2X due to higher manufacturing 
costs and design restrictions. NHTSA also agrees that increased weight 
would make field evaluation of the vehicle harder by limiting the 
utility of the R2X as a delivery vehicle, because extra equipment may 
increase the curb weight of the vehicle, which could decrease the 
amount of cargo it can carry. (LSVs are required to have a GVWR of 
3,000 pounds or below, regardless of the curb weight of the vehicle.) 
\65\
---------------------------------------------------------------------------

    \65\ See 49 CFR 571.3
---------------------------------------------------------------------------

    While the exemption from the backup camera linger time requirement 
would not impact the manufacturing cost or weight of the vehicle, NHTSA 
finds that granting an exemption from that requirement would also make 
easier the field evaluation of the R2X because it would allow the R2X's 
ADS to operate continuously with full sensor input at all times, which 
would aid with Nuro's evaluation of the ADS's performance.

b. Findings Specific to the EOS Basis

i. An R2X Exempt From the Mirror, Windshield, Backup Camera ``Linger 
Time'' Requirements, and Portions of the Backup Camera Test Procedures 
Relating to Rearview Image FOV, Size, and Response Time, Would Have an 
Overall Level of Safety Equivalent to That of a Nonexempt Vehicle
    Because an exemption from the mirror, windshield, and backup camera 
``Linger time'' requirements would not lower the level of safety of the 
R2X, NHTSA finds that an R2X exempted from these requirements would 
have a level of safety at least equal to that of a compliant version of 
their R2X. In addition, NHTSA finds that because an exemption from the 
FMVSS No. 111 test procedures relating to fuel tank loading 
(S14.1.2.2), driver's seating position (S14.1.2.5), steering wheel 
adjustment (S14.1.7), and the opening of the driver's door and 
activation of the starting system (S14.2(a)-(c)) would affect whether 
the R2X's rearview image meets the substantive ``Field of view'' 
(S6.2.1), ``Size'' (S6.2.2), and ``Response time'' (S6.2.3) 
requirements, an R2X exempted from these test procedure provisions 
would provide a level of safety equivalent to a vehicle tested in 
accordance with the FMVSS No. 111 test procedures.
ii. Compliance With FMVSS No. 500 Would Prevent Nuro From Selling the 
R2X
    Compliance with FMVSS No. 500 would prevent Nuro from commercially 
deploying the R2X because it requires the R2X to be equipped with the 
three additional features that are the subject of this exemption 
(exterior and/or interior mirrors, a windshield

[[Page 7837]]

constructed from FMVSS No. 205-compliant glazing materials, and a 
backup camera that meets the ``Linger time'' requirement of FMVSS No. 
111).
    We note that, while the statutory language for the EOS states that 
NHTSA must find that compliance with the FMVSS would prevent Nuro from 
``selling'' the R2X, this language does not limit the application of 
the statutory basis to only vehicles that will be offered for sale 
(which Nuro states the R2X will not). Rather, to grant an exemption 
under the EOS basis, NHTSA must find that compliance with the standard 
would prevent Nuro from selling the R2X regardless of whether Nuro 
actually intends to sell the R2X. Section 30113 of the Vehicle Safety 
Act does not require that a vehicle exempted under the EOS basis enter 
into interstate commerce only through a sale, and NHTSA can think of no 
reasonable safety-related policy justification for reading such a 
requirement into the statute. Accordingly, we have determined that Nuro 
may introduce the R2X into interstate commerce by means other than 
selling, even if the vehicle is exempted under the EOS basis.

c. Granting Nuro's Petition Is Consistent With the Public Interest and 
the Vehicle Safety Act

    As discussed above, the Vehicle Safety Act and its implementing 
regulations provide the Secretary and, by delegation, NHTSA with broad 
authority and discretion in determining whether granting the petition 
is consistent with the public interest and Vehicle Safety Act. Here, 
NHTSA finds that granting Nuro's petition is consistent with the public 
interest and 49 U.S.C. Chapter 301 because an exemption would enable a 
limited-risk deployment \66\ of an occupant-less ADS-equipped vehicle 
that has been designed without any residual consideration of human 
occupants that are not actually able to be inside the vehicle. Further, 
granting the petition will provide the agency with valuable information 
that can facilitate its knowledge of ADS functionality to advance 
future policy and regulatory decisions. Given the agency's above 
determination in the safety findings that the exemption will not lower 
the safety of the R2X as compared to a compliant version of the 
vehicle, and could instead provide incremental benefits to vehicle 
safety due to certain design changes, the agency believes that these 
reasons are more than sufficient to justify this finding.
---------------------------------------------------------------------------

    \66\ In terms of vehicle size, weight, and speed, as well as 
limited operational design domain and fleet size.
---------------------------------------------------------------------------

    More specifically, allowing for the introduction of the R2X as it 
has been designed by Nuro to optimize its performance as an occupant-
less vehicle could further the development of new and innovative 
vehicle automation technologies, which may in turn lead to future 
benefits for vehicle safety, the environment, and the economy. While 
the extent of the anticipated benefits of ADS vehicles like the R2X are 
uncertain, commenters Local Motors and SAFE suggested that these 
vehicles could provide a variety of benefits, including increased 
safety (because ADS vehicles may reduce the number of crashes caused by 
human error), decreased emissions (because ADS vehicles could perform 
the driving task more efficiently and, in the case of the R2X, 
efficiently combine trips), and socioeconomic benefits (because ADS 
vehicles could provide expanded goods delivery services to poor and/or 
underserved communities).
    While NHTSA cannot fully predict the extent to which these benefits 
will materialize in the future and, more specifically, the effect that 
granting this petition would have on those benefits, the agency 
understands that development of the ADS technology necessary to make 
these potential benefits possible requires the technology be used on 
vehicles that are designed from the ground-up to be automated and in 
real-world (non-simulated) environments, both to validate the safety of 
the current ADS technologies and to expose those technologies to new 
situations in which ``machine learning'' capabilities can be used to 
improve performance.\67\ In all events, the exemption request must be 
considered based upon the information available to the agency at this 
time, and NHTSA may revisit the issues here in the future as 
circumstances warrant. By virtue of filing this petition, Nuro believes 
that this exemption would better facilitate their development of this 
technology. Given that the R2X has a much lower top speed and lower 
weight than a typical passenger motor vehicle, and that the R2X will 
not have occupants, NHTSA believes that LSV-based ADS vehicles like the 
R2X provide a low-risk platform for validating and improving ADS 
technologies.\68\
---------------------------------------------------------------------------

    \67\ We note that the FAST Act (Pub. L. 114-94, 129 Stat. 1312 
(Dec. 4, 2015) amended the Vehicle Safety Act to permit vehicle 
manufacturers that existed before December 2015 to operate 
uncertified vehicles on public roads for purposes of testing and 
evaluation. See 49 U.S.C. 30112(b)(10). As Nuro has only been a 
manufacturer since 2018 (see https://vpic.nhtsa.dot.gov/mid/manufacturer/details/18808), Nuro does not qualify for this 
exclusion and so must certify its vehicles as FMVSS-compliant, or 
obtain a temporary exemption, before deploying them in any capacity 
on public roads.
    \68\ We note that our determination that the R2X is a lower-risk 
platform for testing ADS technologies is, in part, premised on Nuro 
taking its responsibility for the safety of its vehicles seriously, 
which includes compliance with the terms set out at the end of this 
notice. If NHTSA determines that Nuro has violated the terms laid 
out at the end of this notice, NHTSA may determine at that time that 
the exemption is no longer in the public interest, and may withdraw 
the exemption. See 49 CFR 555.8(d)(1).
---------------------------------------------------------------------------

    Finally, granting this exemption is in the public interest and 
consistent with the Vehicle Safety Act because it would encourage the 
development of new safety and automated technologies, like ADS, with an 
eye toward future regulatory changes. To this end, NHTSA believes that 
both the public interest and the goals of the Vehicle Safety Act would 
be best served if NHTSA were able to maintain a dialogue with Nuro 
about its experience operating the R2X, which may help inform the 
agency's future policy decisions towards ADS technologies. Accordingly, 
NHTSA has decided to condition the grant of an exemption on Nuro 
providing the agency with specified periodic and incident-based 
reporting of information about the R2X's ADS, notwithstanding that the 
driving capability of the ADS is not relevant to the requisite safety 
findings.

VIII. Nuro's Request for an Exemption From the Backup Camera 
``Deactivation'' Requirement Is Moot

    NHTSA has deemed moot Nuro's request for an exemption from the 
backup camera ``Deactivation'' requirement (FMVSS No. 111, S6.2.5) 
because the requirement does not mandate that the backup camera 
deactivate when the vehicle shifts out of reverse, as Nuro assumed in 
its petition. Accordingly, an exemption from the ``Deactivation 
requirement'' is not necessary for Nuro to design the R2X to operate 
with the backup camera activated at all times, which was Nuro's stated 
purpose of requesting an exemption.
    The deactivation requirement specifies the circumstances in which 
the backup camera image may be deactivated, i.e., when ``the driver 
modifies the view, or the vehicle direction selector is removed from 
the reverse position.'' Contrary to Nuro's understanding, S6.2.5 does 
not require the backup camera to deactivate; rather, the requirement 
prohibits the backup camera from being deactivated prior to either of 
the two specified conditions being met. That is, S6.2.5 requires that

[[Page 7838]]

the rearview image be displayed prior to either the driver manually 
modifying the view or the gear selector being taken out of reverse. The 
requirement does not mandate that the image shall cease to be visible 
when one of these conditions is met. Thus, assuming the driver has not 
manually modified the rearview image, S6.2.5 would permit the rearview 
image to be displayed even after the gear selector had been taken out 
of reverse; \69\ but, per S6.2.4, it may not be displayed after the end 
of the backing event, as that term is defined in S4.
---------------------------------------------------------------------------

    \69\ The only restriction on when the rearview image must be 
deactivated is the linger time requirement (S6.2.4), from which we 
have decided to grant Nuro an exemption, as is explained in the 
previous section.
---------------------------------------------------------------------------

    Since the deactivation requirement in S6.2.5 permits, but does not 
require, deactivation of the rearview image when the vehicles is taken 
out of reverse, Nuro's request for exemption from the requirement is 
moot.

IX. Other Issues Raised by Commenters

a. Relevance of the Driving Capability of the R2X's ADS

    Several commenters raised the issue of whether, and the extent to 
which, the driving ability of the R2X's ADS was relevant to the safety 
findings NHTSA must make to grant an exemption under Sec.  30113, under 
any basis. Advocacy groups, including AAMVA,\70\ Advocates,\71\ and 
NSPE,\72\ assumed, without providing a legal basis for their 
assumption, that the ability of the R2X's ADS to perform the driving 
task must be a major factor for NHTSA to consider in its evaluation of 
Nuro's petition. These groups argued that Nuro's petition did not 
include sufficient information about the ADS for NHTSA to grant an 
exemption because Nuro did not include documentation of the various 
testing it had done in developing its ADS, though these groups 
generally did not specify in detail what data they believed Nuro should 
have provided. However, one safety advocate, CAS, did include a 
discussion of why it believed the driving ability of the R2X's ADS 
should be an element of NHTSA's in its safety findings.\73\
---------------------------------------------------------------------------

    \70\ See NHTSA-2019-0017-0025.
    \71\ See NHTSA-2019-0017-0026.
    \72\ See NHTSA-2019-0017-0011.
    \73\ See NHTSA-2019-0017-0024.
---------------------------------------------------------------------------

    According to CAS, the driving ability of the R2X's ADS is relevant 
because the FMVSS often have ``an implicit human operator bias.'' 
Accordingly, CAS argues that manufacturers of ADS vehicles must be 
required to demonstrate that the manufactures ``have successfully 
replicated in their automatic systems the human sensory capability, 
responses, and judgement implicit in the specific FMVSS for which an 
exemption is sought.'' Using the mirror requirement as an example, CAS 
argues that, for Nuro to be exempted from the LSV mirror requirement, 
its petition must demonstrate that the R2X's ADS will respond as a 
human using mirrors would in a potential crash scenario. However, CAS 
does not cite a legal basis for reading into the FMVSS a requirement 
that the ADS must react in a certain way in these driving scenarios. 
While other comments from advocacy groups were not as thorough as CAS 
in their discussion of the relevance of the ADS, they all roundly 
criticized Nuro's petition for a perceived lack of information about 
the ADS and other related subjects (such as the ODD and remote operator 
system) they claim are relevant to the safety findings NHTSA must make.
    On the other side, SAFE, Local Motors, and the Alliance, argued in 
their comments that the driving capability of the R2X's ADS is not 
relevant to the safety findings NHTSA must make to grant an exemption. 
According to SAFE, the R2X's ADS is not relevant to NHTSA's safety 
findings because the exemption statute requires NHTSA to determine how 
the safety level of the non-compliant R2X would differ from that of a 
compliant vehicle, which in this case, would be a compliant 
occupantless, low-speed ADS vehicle.\74\ Thus, based on SAFE's logic, 
NHTSA's findings must focus on the safety implication of non-compliance 
as it relates to the specific standards from which an exemption is 
sought, not on how safe an exempted vehicle would be generally.\75\ 
Using similar logic, Local Motors argued that ``ADS performance 
measurement is less meaningful to the specific features being 
omitted,'' although Local Motors did encourage NHTSA to require some 
information reporting to maintain oversight of the vehicles.\76\ The 
Alliance argued for the same outcome--that the R2X's ADS should not be 
considered in NHTSA's safety findings--but justified its argument on 
the grounds that ADS competency should not be considered because it is 
already ``addressed'' through the Voluntary Safety Self-Assessment 
(VSSA) criteria and the Department's ADS 2.0 and AV 3.0 guidance.\77\
---------------------------------------------------------------------------

    \74\ See NHTSA-2019-0017-0016.
    \75\ We note that SAFE discusses only the LEV and NSF bases, but 
its point could be applicable to the EOS basis as well.
    \76\ See NHTSA-2019-0017-0017.
    \77\ See NHTSA-2019-0017-0020.
---------------------------------------------------------------------------

    NHTSA agrees with SAFE and Local Motors that the ADS does not 
factor into the comparative safety findings NHTSA must make to grant an 
exemption under either the EOS or LEV bases in this instance. As we 
briefly explained at the start of the ``Safety Analysis'' section, 
neither the statute nor regulations call upon NHTSA to assess the 
absolute level of safety of the exempted vehicle in question and find 
whether the vehicle's safety exceeds some minimum threshold that exists 
in the abstract. Instead, the agency is tasked with making a judgment 
about relative safety, i.e., whether an exempted, noncompliant version 
of a highly automated R2X would have a level of safety equivalent to 
that of a nonexempt, compliant version of a highly automated R2X. As we 
noted, Nuro has stated that an R2X that is exempted from the 
requirements of FMVSS No. 500 would use the same ADS as an R2X that is 
fully compliant, which would rely on the same sensors and would perform 
the same classifying, decision making and executing functions. Thus, 
because a compliant version of the R2X would also operate using an ADS, 
there is no meaningful difference in the safety impact of the ADS 
between a compliant and non-compliant R2X.\78\
---------------------------------------------------------------------------

    \78\ As noted earlier, the Vehicle Safety Act permits 
manufacturers to include any design feature they want on a vehicle 
so long as the vehicle conforms to the FMVSS, and the vehicle does 
not contain a defect that poses an unreasonable risk to safety. 
Thus, the ADS would be subject to NHTSA's defects authority, and 
some aspects of its competence may be appropriately considered in a 
defect investigation of the R2X by NHTSA.
---------------------------------------------------------------------------

    While we agree with the Alliance that the driving performance of 
the ADS is not germane to the safety findings NHTSA must make to grant 
Nuro's petition, we do not agree with the Alliance that the VSSA 
process is the appropriate framework NHTSA should use to exercise 
oversight of ADS vehicles that are produced subject to an exemption. 
First, as stated in NHTSA's ADS 2.0 guidance, and reemphasized in the 
Department's AV 3.0 and other statements, VSSAs are completely 
voluntary and the agency has no mechanism with which to compel their 
submission. VSSAs are intended to be documents by which ADS developers 
convey to the public information about how safety is factored into the 
development of the ADS in several specific critical areas and, thus, 
are not intended to be tools of regulatory oversight. Further, the 
agency is not, in this notice, foreclosing the possibility that, in 
considering whether to grant an ADS-related exemption petition for a 
vehicle that is requesting exemption

[[Page 7839]]

from many more FMVSS requirements than Nuro, NHTSA would determine that 
the competency of the ADS is relevant to making the requisite safety 
finding. Rather, the agency has simply determined that such an analysis 
is not necessary here.
    It is important to note that, while the driving capability of the 
R2X's ADS was not a factor in NHTSA's findings concerning whether the 
agency should grant Nuro's petition, as described above, nothing in 
this decision precludes NHTSA from seeking information about the ADS as 
part of a defect investigation, just as the agency would be able to 
seek information about the ADS in an investigation of a FMVSS compliant 
ADS-equipped vehicle. Neither this decision nor the Vehicle Safety Act 
prohibits NHTSA from mitigating ADS-related risks in determining the 
number of vehicles to exempt or the terms that apply to the exemption. 
Accordingly, NHTSA has conditioned this exemption grant on terms that 
the agency believes will mitigate risk and ensure the agency can 
maintain adequate oversight of deployed R2X vehicles. The agency has 
included several terms that require Nuro to report both general and 
incident-related information to NHTSA, including certain data about the 
operation of the R2X and its ADS. As described above, NHTSA believes 
granting this petition is in the public interest in part because this 
data will assist the agency both with its oversight of the R2X, and 
with developing regulatory changes to facilitate the safe introduction 
of fully compliant ADS vehicles.

b. ADS-Related Data Reporting

    Several commenters also raised the issue of whether, and to what 
extent, NHTSA should require Nuro to report data about the operation of 
the R2X to the agency. While most commenters agreed that some required 
post-grant data reporting requirement would be appropriate, the 
commenters disagreed on whether this reporting should include 
information about the operation of the R2X using the ADS.
    The commenters in favor of broad reporting requirements that cover 
information about the operation of the R2X and/or its ADS included 
advocacy groups like Advocates, CAS, and AAMVA, as well as the 
manufacturer Local Motors. Advocates argued that NHTSA should use the 
exemption process to increase the agency's understanding of ADS 
technologies through ``required data sharing,'' though it did not 
provide detail as to what data it believed would be useful for NHTSA to 
collect, nor what exactly is meant by ``sharing.'' \79\ Both CAS \80\ 
and AAMVA \81\ suggest that NHTSA should ``monitor'' and require 
periodic reporting from Nuro, though they do not specify details of the 
scope or frequency of this monitoring and reporting. Local Motors 
suggested that NHTSA could require reporting of information related to 
route hazards, near misses, collision incidents, injuries, and 
disengagements of the ADS.\82\ Regardless of what is reported, both 
AAMVA and Advocates argue that, because the R2X could potentially 
operate beyond the two-year exemption period, and could develop over 
time through software changes, any reporting requirements should last 
for the entirety of the R2Xs' useful life.
---------------------------------------------------------------------------

    \79\ See NHTSA-2019-0017-0026.
    \80\ See NHTSA-2019-0017-0024.
    \81\ See NHTSA-2019-0017-0025.
    \82\ See NHTSA-2019-0017-0017.
---------------------------------------------------------------------------

    Commenters who argued against significant reporting requirements 
included the Alliance and Nuro itself. The Alliance argued that data 
reporting on the operation of the R2X and/or its ADS should not be 
required, both because of what it refers to as the ``limited'' nature 
of Nuro's exemption request, and because NHTSA has the VSSA process to 
obtain this information.\83\ The Alliance argues that if NHTSA does 
impose any reporting requirements, such requirements should be limited 
to the specific exemptions from the FMVSS requirements at issue in the 
petition, and that information about the ADS should be pursued in other 
ways, such as through a pilot program. In addition, the Alliance argues 
that, if there are any reporting requirements, they should not extend 
beyond the two-year exemption period. While Nuro did not object to 
reporting generally, it did suggest that NHTSA should only require 
reporting of information relating to a small subset of potential crash 
events, or narrowly tailored to the discrete aspects of vehicle 
performance affected by individual exemptions (which would omit 
reporting of any information about the operation of the R2X or its 
ADS).\84\
---------------------------------------------------------------------------

    \83\ See NHTSA-2019-0017-0020.
    \84\ See NHTSA-2019-0017-0023.
---------------------------------------------------------------------------

    NHTSA has determined that limiting reporting requirements in the 
way suggested by the Alliance and Nuro would not be appropriate, 
because it could harm the public interest both by hindering NHTSA's 
oversight of the R2X and limiting NHTSA's ability to learn from 
information from Nuro to potentially inform future activities. 
Accordingly, NHTSA has decided to include terms that would require both 
crash-related information that is sent to the agency very soon after 
any crash, and periodic reporting of general information about the 
operation of the R2X, and that this reporting should extend throughout 
the useful life of the vehicles produced pursuant to the exemption.

c. Compliance With FMVSS Requirements Not Applicable to the R2X

    AAMVA argues in its comment that Nuro should be required to apply 
for an exemption from the requirement that LSVs come equipped with an 
FMVSS No. 209-compliant seat belt, despite the vehicle's lack of 
designated seating positions, because AAMVA is concerned that allowing 
this would set a precedent that manufacturers could simply decide that 
certain FMVSS requirements do not apply to their vehicles.\85\ NHTSA 
does not agree with AAMVA's assertion that Nuro is free to choose which 
FMVSS apply. FMVSS No. 500 is quite clear as to the seat belt 
requirement. It is written as an ``if-equipped'' requirement; that is, 
it requires that an LSV have an FMVSS No. 209-compliant seat belt at 
each designated seating position (DSP). Since the R2X does not have any 
DSPs, it is not required to have any seat belts. All LSVs with DSPs are 
subject to the requirements of FMVSS No. 209.
---------------------------------------------------------------------------

    \85\ See NHTSA-2019-0017-0025.
---------------------------------------------------------------------------

    Similarly, CAS argues that NHTSA should require that the R2X be 
equipped with an FMVSS No. 401-compliant trunk release in its cargo 
compartments as a term of granting the petition.\86\ Although NHTSA 
encourages Nuro to make its vehicles as safe as possible, and to 
consider installing trunk releases, FMVSS No. 401 does not apply to 
LSVs. Under section 30113 and Part 555, the question that Nuro's 
petition puts before NHTSA is whether Nuro should be exempted from 
three of the requirements to which its vehicle is subject under FMVSS 
No. 500.
---------------------------------------------------------------------------

    \86\ See NHTSA-2019-0017-0024.
---------------------------------------------------------------------------

    The question of whether LSVs should be subject to additional 
performance requirements is outside the scope of this proceeding, and 
the agency does not have a legal basis to impose additional FMVSS 
requirements on the R2X, either as a pre-condition of granting an 
exemption, or as a term for maintaining an exemption grant. However, 
the agency may consider whether to include a trunk release requirement 
should we decide in the future to amend the FMVSS to specifically 
regulate occupantless delivery vehicles, as described in the Notice of 
Receipt for this petition.

[[Page 7840]]

d. Cybersecurity

    Three commenters--CAS, NSPE, and Patrick Coyle--all raised 
cybersecurity concerns as well. CAS states that ``end-to-end 
encryption,'' which Nuro states the R2X's communications will have, is 
insufficient to assure cybersecurity alone.\87\ CAS also commented that 
safety-critical cybersecurity issues should be covered by Nuro's safety 
plan and that there should be ongoing assessments of Nuro's compliance 
with this plan. Similarly, NSPE states that the cybersecurity measures 
Nuro describes in its petition are insufficient, given the dangers an 
ADS vehicle could pose if hacked, and says that NHTSA should withhold 
approval until Nuro submits a detailed cybersecurity plan.\88\ Mr. 
Coyle, a private individual, also states that Nuro's petition does not 
contain an adequate discussion of cybersecurity.\89\
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    \87\ See NHTSA-2019-0017-0024.
    \88\ See NHTSA-2019-0017-0011.
    \89\ See NHTSA-2019-0017-0004.
---------------------------------------------------------------------------

    Although the agency has no reason to believe that the cybersecurity 
risk between the R2X and a hypothetical compliant version of the R2X 
are any different, given the critical importance of cybersecurity, we 
have decided it would be in the public interest to include terms 
requiring Nuro to report any cybersecurity incidents and safety-
critical cybersecurity vulnerabilities, and cease operation of all R2X 
vehicles if a cybersecurity incident that has an effect on safety 
occurs until the incident has been remedied.

e. Engagement With Local Authorities

    Both AAMVA and AAA argue in their comments that community 
engagement would be important to ensuring the safe operation of the 
exempted vehicles and to gaining consumer acceptance. AAMVA stated that 
NHTSA should carefully consider how state and local authorities would 
be affected by the presence of exempted vehicles, and suggested that 
the acceptability of features like remote operation as a risk 
mitigation strategy should be up to State and local authorities.\90\ 
AAA also stated that petitioners should describe outreach efforts in 
their petition.\91\
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    \90\ See NHTSA-2019-0017-0025.
    \91\ See NHTSA-2019-0017-0021.
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    Although the question of whether Nuro adequately engaged with the 
local communities in which it is deploying the R2X is not a factor in 
the safety findings NHTSA must make to grant Nuro's petition, NHTSA 
agrees that community outreach and compliance with local regulation is 
important for both the safe operation of the R2X within the community 
(e.g., safely interacting with first responders in an emergency) and 
social acceptance of the vehicles. For this reason, NHTSA has 
determined it is in the public interest to include terms that require 
Nuro to certify that it has engaged with and gained any legally 
necessary approval of all State and local authorities in the 
communities in which the R2X will be deployed.

X. Number of Vehicles

    The Vehicle Safety Act provides that NHTSA may grant an exemption 
under the LEV and EOS bases for the production of a maximum of 2,500 
vehicles during any 12-month period.\92\ Nuro is permitted to produce 
up to 2,500 exempted R2X vehicles during any 12-month period of the 
exemption, or a maximum of 5,000 exempted vehicles over the full two-
year exemption period.
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    \92\ 49 U.S.C. 30113(d).
---------------------------------------------------------------------------

XI. Terms

    The Vehicle Safety Act grants the Secretary, as delegated to NHTSA 
significant discretion to condition the grant of an exemption ``on 
terms [NHTSA] considers appropriate.'' 49 U.S.C. 30113(b)(1) 
(delegation of authority at 49 CFR 1.95). Pursuant to this authority, 
NHTSA's grant of an exemption is subject to the terms set out in the 
Appendix following the preamble. Although, as we have noted, the 
performance of the R2X's ADS need not be addressed for this exemption, 
the Vehicle Safety Act does not limit the agency's authority solely to 
terms and conditions directly relevant to its specific determination. 
This is particularly true in instances, such as here, where the agency 
has considered the potential benefits of automation in its public 
interest finding, and where the party seeking the exemption is using a 
novel form of technology.
    The exemption Nuro is receiving today is the first exemption NHTSA 
has granted under section 30113 to permit the deployment of an ADS 
vehicle that will be used for commercial purposes. As such, NHTSA 
appreciates that there will likely be heightened public interest about 
the vehicles allowed under this exemption petition, as evidenced by the 
public comments, and, the agency has decided to include provisions 
concerning the performance of the ADS in the terms for this exemption. 
NHTSA notes that violation of these terms may lead NHTSA to determine 
that the exemption is no longer in the public interest, which is a 
ground for the agency to terminate the exemption under 49 CFR 555.8(d). 
NHTSA may also take other appropriate enforcement action.
    The terms NHTSA has chosen are designed to enhance the public 
interest and include post-crash reporting, periodic reporting, 
particular terms concerning cybersecurity, and certain general 
requirements. The post-crash reporting requirements would provide NHTSA 
with information necessary to understand the cause of the crash 
(including any role the ADS may have played), so the agency can take 
appropriate remedial action--up to and including requiring a recall, or 
even terminating the exemption and include the type of information the 
agency may request as a matter of course in any safety defect 
investigation involving an ADS-equipped vehicle. The periodic reporting 
requirements are intended to provide NHTSA with information about the 
operation of the R2X on public roads to facilitate improved safety 
oversight. NHTSA has also included restrictions on Nuro to ensure that 
the company is in a position to learn of and quickly resolve 
cybersecurity incidents related to safety. The general requirements are 
intended to ensure that Nuro removes from operation any vehicle 
determined not to be safe, Nuro comply with all relevant State and 
local laws, retain ownership of the vehicles, and provide a hotline for 
safety concerns.
    We note that the terms we have included in this notice are similar 
to terms NHTSA has previously imposed on the importation of 
noncompliant ADS vehicles under 49 CFR part 591, though, consistent 
with the differing requirements of part 591, Nuro's exemption will 
allow for commercial deployment, rather than simply testing and 
demonstration. Finally, though not included in the terms below, Nuro 
must also comply, as a matter of law, with the requirements for a label 
that must be affixed to its exempted vehicles under part 555.9.

XII. Conclusion

    In accordance with 49 U.S.C. 30113(b)(3)(B)(iii) and (iv), the 
agency is granting Nuro NHTSA Temporary Exemption No. EX 20-01 from 
paragraphs S5(b)(6) and S5(b)(8) of FMVSS No. 500; and paragraphs 
S6.2.4, S14.1.2.2, S14.1.2.5, S14.1.7, and S14.2(a)-(c) of FMVSS No. 
111; provided that Nuro complies with the terms and conditions 
described in the Appendix to this document. The exemption shall be 
effective from February 11, 2020 to February 10, 2022.

[[Page 7841]]

Appendix: Terms

1. Reporting Following a Crash

    As soon as practicable, but no later than 24 hours after the R2X 
is involved in any crash in which either (1) the R2X is in motion, 
or (2) the R2X is struck by another motor vehicle, Nuro must inform 
NHTSA's Office of Vehicle Safety Compliance (OVSC) that the crash 
took place.
    As soon as practicable, but no later than 7 calendar days after 
Nuro informs OVSC of a crash, Nuro must report to NHTSA the data 
elements specified in Table I.\93\
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    \93\ These data elements are based on the requirements in 49 CFR 
part 563, Event Data Recorders, with data elements related to 
occupant protection systems omitted. For purposes of reporting the 
data elements in this table, ``End of Event Time'' means the moment 
at which the vehicle's cumulative delta-V within a 20 ms time period 
becomes 0.8 km/h (0.5 mph) or less.

                     Table I--Reported Data Elements
------------------------------------------------------------------------
                                 Recording interval/    Data sample rate
         Data element             time  (relative to      (samples per
                                      time zero)            second)
------------------------------------------------------------------------
Delta-V, longitudinal.........  0 to 250 ms or 0 to                 100.
                                 End of Event Time
                                 plus 30 ms,
                                 whichever is shorter.
Maximum delta-V, longitudinal.  0-300 ms or 0 to End                N/A.
                                 of Event Time plus
                                 30 ms, whichever is
                                 shorter.
Time, maximum delta-V.........  0-300 ms or 0 to End                N/A.
                                 of Event Time plus
                                 30 ms, whichever is
                                 shorter.
Delta-V, lateral..............  0-250 ms or 0 to End                100.
                                 of Event Time plus
                                 30 ms, whichever is
                                 shorter.
Maximum delta-V, lateral......  0-300 ms or 0 to End                N/A.
                                 of Event Time plus
                                 30 ms, whichever is
                                 shorter.
Time, maximum delta-V, lateral  0-300 ms or 0 to End                N/A.
                                 of Event Time plus
                                 30 ms, whichever is
                                 shorter.
Time, maximum delta-V,          0-300 ms or 0 to End                N/A.
 resultant.                      of Event Time plus
                                 30 ms, whichever is
                                 shorter.
Lateral acceleration..........  N/A..................               N/A.
Longitudinal acceleration.....  N/A..................               N/A.
Normal acceleration...........  N/A..................               N/A.
Speed, vehicle indicated......  -5.0 to 0 sec........                 2.
Engine throttle, % full.......  -5.0 to 0 sec........                 2.
Service brake, on/off.........  -5.0 to 0 sec........                 2.
Ignition cycle, crash.........  -1.0 sec.............               N/A.
Ignition cycle, download......  At time of download..               N/A.
------------------------------------------------------------------------

    The data elements specified in Table I must be reported in 
accordance with the range, accuracy, and resolution specified in 
Table II.

                                     Table II--Reported Data Element Format
----------------------------------------------------------------------------------------------------------------
             Data element                   Minimum range               Accuracy                Resolution
----------------------------------------------------------------------------------------------------------------
Lateral, Longitudinal and normal       At option of             At option of             At option of
 acceleration.                          manufacturer.            manufacturer.            manufacturer.
Longitudinal, Longitudinal Maximum,    -100 km/h to + 100 km/h  10%........  1 km/h.
 Lateral, Lateral Maximum delta-V.
Time, maximum delta-V, longitudinal    0-300 ms, or 0--End of   3 ms.......  2.5 ms.
 and lateral.                           Event Time plus 30 ms,
                                        whichever is shorter.
Time, maximum delta-V, resultant.....  0-300 ms, or 0--End of   3 ms.......  2.5 ms.
                                        Event Time plus 30 ms,
                                        whichever is shorter.
Speed, vehicle indicated.............  0 km/h to 200 km/h.....  1 km/h.....  1 km/h.
Engine throttle, percent full........  0 to 100%..............  5%.........  1%.
Ignition cycle, crash and download...  0 to 60,000............  1 cycle....  1 cycle.
----------------------------------------------------------------------------------------------------------------

    In addition, Nuro must provide NHTSA's OVSC with the following 
information about the status of the ADS and/or remote operator 
before and during the crash event:
     If the ADS was in control of the vehicle during the 
event, a detailed timeline of the 30 seconds leading up to the 
crash, including a detailed read-out and interpretation of all 
sensors in operation during that time period, the ADS's object 
detection and classification output, and the vehicle actions taken 
(i.e., commands for braking, throttle, steering, etc.).
     If a remote operator took over control of the vehicle 
prior to the event, a detailed timeline of the 30 seconds leading up 
to the remote operator taking over control, including a detailed 
read-out and interpretation of all ADS sensors in operation during 
that time period, the ADS's object detection and classification 
output, and the vehicle actions taken (i.e., commands for braking, 
throttle, steering, etc.).
     If a remote operator was in control of the R2X at any 
point during or up to 30 seconds before the event, Nuro must provide 
a detailed timeline of any actions the remote operator took that 
affected the crash event, as well as any technical problems that 
could have contributed to the crash (signal latency, poor field of 
view, etc.).
    Finally, Nuro must provide NHTSA with any additional information 
about the event that NHTSA deems pertinent for determining either 
crash or injury causation, including additional information related 
to the ADS or remote operator system.

2. Periodic Reporting

    Beginning 90 days after the date of the exemption grant, and at 
an interval of every 90 days thereafter, Nuro must submit to NHTSA's 
OVSC a report detailing the operation of each R2X vehicle in 
operation during that time period. This report may provide this 
information either in aggregate or on a per-vehicle basis, but it 
must include the following:
     A calculation of the total miles the vehicle has 
traveled using the ADS during the report period, and heat maps of 
the geofenced area in which the vehicle operates to illustrate 
travel density. Nuro must provide the same information for miles 
traveled using a remote operator.
     Detailed descriptions of any material changes made to 
the R2X's Operational Design Domain (ODD) or ADS software during the 
reporting period.
     Detailed descriptions of any incidents in which the R2X 
has violated any local or state traffic law, whether operating using 
the ADS or under remote operation.
     Detailed descriptions of any incidents in which the R2X 
has experienced a sustained

[[Page 7842]]

acceleration of at least 0.7g on any axis for at least 150 ms, or of 
any incidents in which the vehicle has an unexpected interaction 
with humans or other objects (other than crashes that require 
immediate reporting).
     Detailed descriptions of all instances in which a 
public safety official, including law enforcement, has attempted to 
interact with an R2X, such as to pull it over, or has contacted Nuro 
regarding an attempted interaction with the R2X.
     Detailed descriptions of any ``minimal risk condition 
fallback'' \94\ or ``remote operator takeover'' \95\ events that 
have occurred, even if no crash has occurred. If the event has 
occurred because the vehicle self-diagnosed a malfunction of a 
vehicle system, the report must include a detailed description of 
the cause and nature of the malfunction, and what remedial steps 
were taken. If the event was caused by the vehicle encountering a 
complex or unexpected driving situation, the report must include a 
detailed timeline of the ADS's decision-making process that led to 
the event, including any difficulties the ADS had in detecting and 
classifying objects. For any remote operator takeover event, Nuro 
must provide information about any technical issues encountered, 
such as signal latency.
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    \94\ The term ``minimal risk condition fallback'' refers to a 
situation in which the ADS pulls over using a ``failsafe 
trajectory,'' as described on page 21 of Nuro's VSSA, which Nuro 
submitted as an attachment to its comment. See Docket No. NHTSA-
2019-0017-0023.
    \95\ The term ``remote operator takeover'' refers to a situation 
in which a remote operator takes control of a vehicle either because 
the ADS recommends remote operation, or because the remote operator 
deems it appropriate without being prompted by the ADS.
---------------------------------------------------------------------------

    In addition, Nuro must make necessary staff available to meet 
with NHTSA staff quarterly to discuss the status of its deployment 
program.

3. Cybersecurity

     Nuro must have a documented cybersecurity incident 
response plan that includes its risk mitigation strategies and the 
incident notification requirements listed below.
     Nuro must cease operations of all R2X vehicles 
immediately upon becoming aware of any cybersecurity incident \96\ 
involving the R2X and any systems connected to the R2X that has the 
potential to impact the safety of the R2X.
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    \96\ As used in these terms, ``incident'' is defined as an 
occurrence that jeopardizes the functionality, confidentiality, 
integrity, or availability of a vehicle computing platform through 
the potential use of an exploit. ``Exploit'' refers to an action 
that takes advantage of a vulnerability to cause unintended or 
unanticipated behavior to occur on computer software and/or 
hardware.
---------------------------------------------------------------------------

     No later than 24 hours after being made aware of a 
cybersecurity incident, Nuro must inform NHTSA's Office of Defects 
Investigations (ODI) of the incident. Nuro must also respond to any 
additional requests for information from NHTSA on the cybersecurity 
incident.
     Prior to resuming its operation of R2X vehicles 
following the discovery of a cybersecurity incident, Nuro must 
inform NHTSA of the steps it has taken to patch the vulnerability 
and mitigate the risks associated with the incident, and receive 
NHTSA approval to resume operation.

4. Other Conditions

     Nuro must be capable of issuing a ``stop order'' that 
causes all deployed R2X vehicles to, as quickly as possible, cease 
operations in a safe manner, in the event that NHTSA or Nuro 
determines that the exempted vehicles present an unreasonable or 
unforeseen risk to safety.
     Nuro must coordinate any planned deployment of the R2X 
or change to the ADS/ODD with state and local authorities with 
jurisdiction over the operation of the vehicle as required by the 
laws or regulations of that jurisdiction.
     The R2X must comply with all state and local laws and 
requirements at all times while in operation. Each vehicle must be 
duly permitted, if applicable, and authorized to operate within all 
properties and upon all roadways traversed.
     Nuro must maintain ownership and operational control 
over the R2Xs that are built pursuant to this exemption for the life 
of the vehicles.
     Nuro must create and maintain a hotline or other method 
of communication for the public and Nuro employees to directly 
communicate feedback or potential safety concerns about the R2X to 
the company.

    Authority:  49 U.S.C. 30113 and 49 U.S.C. 30166; delegations of 
authority at 49 CFR 1.95 and 49 CFR 501.4.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.95 and 501.4.
James C. Owens,
Acting Administrator.

[FR Doc. 2020-02668 Filed 2-10-20; 8:45 am]
BILLING CODE 4910-59-P