THE VIEW Legal Brief ????

Mark D Johnson NHTSA goes all in for V2V

The NPRM proposes a particular technology to enable V2V

communications, namely DSRC. Governmental agencies, including NHTSA, generally avoid naming a specific technology in the rules ❞

rulemaking proceeding proposing to mandate that light vehicles be enabled for vehicle-to-vehicle (V2V) wireless communications. NHTSA’s Notice of Proposed Rulemaking (NPRM), released on December 13, 2016, follows an August 2014 Advance Notice of Proposed Rulemaking, which set forth a research and develop- ment plan to support the goal of eventually mandat- ing V2V communications for light vehicles. Specifically, NHTSA’s December 2016 NPRM pro-


poses a new Federal Motor Vehicle Safety Standard (FMVSS), #150 (“V2V Communications”). NHTSA further proposes that V2V communications be conducted using the Dedicated Short Range Communications (DSRC) data transmission technology in the 5.9 GHz spectrum band allocated by the Federal Communica- tions Commission (“FCC”). Manufacturers of light vehi- cles are to implement the V2V requirement in three phases: installed in 50 percent of light vehicles man- ufactured two years after adoption of the Final Rule; installed in 75 per cent of new vehicles manufactured three years after the Final Rule; and installed in all new vehicles manufactured four years after the Final Rule. (Public comments on the NPRM may be submitted to NHTSA until April 12, 2017 at under Docket No. NHTSA-2016-0126. ) Politically, the NPRM could face an uphill battle with

Mark D Johnson is an attorney-at- law based in Washington, DC


the new Trump Administration. Although the Obama Administration clearly pushed to release the NPRM before President Trump’s inauguration on January 20, 2017, the fact of its release is not a guarantee that the new administration will ultimately enact the V2V man- date. Just 10 days into his administration, President Trump signed an Executive Order requiring that exec- utive agencies, including the US Department of Trans- portation (DOT) and NHTSA, identify for elimination at least two existing regulations for every new regulation that is issued. Regardless of the NPRM’s merits, and its release just before Trump took office, the agencies will have to justify the NPRM by naming two existing regu- lations for elimination. While agencies often routinely identify out-of-date and/or unneeded regulations to

n the waning days of the Obama Administration, the National Highway Traffic Safety Administra- tion (NHTSA) met its commitment to initiate a

be cut, this is the first time that an agency must con- duct this form of a regulatory “balancing” act. The Executive Order includes an additional condi-

tion in this analysis, a condition that has received less attention. President Trump is also requiring that the costs associated with a new regulation must be offset by the costs saved by eliminating the existing regula- tions. In other words, implementing the new regulation must result in a net zero cost. As required by federal law, the NPRM includes a 40-year cost projection for the V2V mandate that considers four cost factors: (1) vehicle -installed radio devices; (2) implementation of a V2V message security credential management system; (3) equipment and network support for V2V messages; and (4) vehicle fuel economy impact from heavier vehi- cles with installed V2V equipment. The Executive Order specifies that guidance will be forthcoming regarding how the agencies are to perform this cost comparison between the new and old regulations. However, the Executive Order makes no mention whether this com- parison is to include cost savings that may result from the new regulation. V2V communications are expected to result in significant cost savings from vehicle crashes and injuries and fatalities avoided and the NPRM includes this analysis as well. Substantively, the Trump Administration might

object to mandating a particular technology – DSRC – for V2V communications. At her nomination hearing, new DOT Secretary Elaine Chao spoke positively of the benefits of new transportation technologies. She is also expected to be more “business-friendly,” espe- cially when considering new regulations, as compared to the Obama Administration. The proposed V2V man- date might therefore be viewed by the Trump Admin- istration as unfriendly to business precisely because it would require vehicle OEMs to install V2V equipment, thus imposing new costs on industry. In addition, the NPRM proposes a particular tech-

nology to enable V2V communications: DSRC. Gov- ernmental agencies, including NHTSA, generally avoid naming a specific technology in the rules; instead, agencies identify performance requirements to achieve a particular desired result and the private sec- tor is enabled to develop its own systems and technol-

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