National

Administrative Rules of Road Testing of Self-Driving Vehicles Promulgated----A

Brief Comment on Administrative Rules on the Administration of Road Testing of

Intelligent Connected Vehicles

National Administrative Rules of Road Testing of

Self-Driving Vehicles Promulgated----A Brief Comment on Administrative Rules on

the Administration of Road Testing of Intelligent Connected Vehicles

Hongbin ZHANG, Yang

ZHAO, He YANG

I.Background

Autonomous

Vehicles, also referred to as “self-driving cars’’, “driverless cars”,

"smart cars" and “intelligent connected vehicles” (“ICVs”) are rapidly developing in China

and the government has given serious consideration to the development of the smart

car industry. The ICV industry has been listed as one of the ten key areas for development

as part of the Made in China 2025 strategy, and the Medium and Long Term

Development Plan of the Automobile Industry identifies the development of ICVs

as providing breakthrough opportunities in the transformation and upgrade of

the automobile industry.[1]

Road tests play an essential role in the

development and application of technology for ICVs. Since December 2017,

various guidances, implementation rules and other documents relating to the

road testing of ICVs ("Local Rules")

have been successively issued in locations including Beijing, Shanghai,

Chongqing. In addition, road testing facilities for ICVs have been built in

Shanghai, Chongqing, Beijing, Zhejiang, Changchun (Jilin), Wuhan (Hubei), Wuxi

(Jiangsu) and elsewhere. The legislative and practical insights acquired during

the testing processes addressed in these Local Rules have provided a solid

foundation for the issuance of nationwide unified administrative rules relating

to ICVs.

On April 12, 2018, the Ministry of

Industry and Information Technology, the Ministry of Public Security and the

Ministry of Transportation jointly issued the Administrative Rules of Road Testing of Intelligent Connected Vehicles

(for Trial Implementation) (the "Administrative

Rules"), which subsequently came into force on May 1, 2018. The

Administrative Rules are the first regulatory document on road testing of ICVs

at the national level. By standardizing and unifying the Local Rules, they have

served to accelerate the development of road testing processes for ICVs in

China.

While there has undoubtedly been an

enthusiastic response to the convenience – and the entertainment value – of

ICVs, a recent pedestrian death caused by an Uber autonomous vehicle in

Arizona, USA has highlighted that safety should always be uppermost in ICV

development and road testing. The Administrative Rules take the approach that

safety should be the overriding concern in the road testing of ICVs. We provide

the following commentary on the issue of smart car safety as it is addressed in

the Administrative Rules.

II. Safety Guarantee

I: Admission and Management of the Testing Party

The Administrative Rules set out the

requirements and conditions for test vehicles, test subjects and test drivers,

and include a number of requirements for the management of tests so as to

ensure safety during the road testing of ICVs.

1.    Test

Vehicles: Six Requirements

The Administrative Rules set out six

specific requirements for test vehicles, relating to their registration,

mandatory items for testing, switching between self-driving and manual modes,

data recording and real-time information monitoring, testing locations, and

third-party verification of testing. Detailed requirements are as follows:

i. An ICV test vehicle cannot be

registered as a motor vehicle;

ii. Mandatory items for testing should

satisfy relevant requirements for corresponding vehicles, with the exception of

durability. If a particular mandatory

testing item is not met due to the self-driving function, it will need

to be proved that this has not in any way jeopardized the safety performance of

the vehicle;

iii. Is able to be steered both

manually and automatically, and can be switched safely, rapidly and easily

between the self-driving and manual driving modes;

iv. Includes the capability to

record, store and monitor the status of the vehicle, providing real-time

information about the current vehicle control mode and other specified

information, and can automatically record and store data for at least 90

seconds prior to any vehicle accident or malfunction, with the data stored for

at least three years;

v. Field tests for test vehicles

shall be conducted only in locations approved for testing, such as closed roads

or sites;

vi. The self-driving function of

test vehicles shall be tested and verified by a third-party testing institute

with the necessary inspection license as specified in the Administrative Rules.

In addition, in order to ensure safety

during testing, the Administrative Rules stipulate that during a test, a test

vehicle shall not carry any person or freight that is

not of relevance to that test. The Administrative Rules

further stipulate that the self-driving mode shall

not be employed during an ongoing test, except when the test vehicle is running

on roads designated for testing, and that the testing vehicle shall be driven

manually from the parking lot to the road designated for testing purposes.

In terms of the requirements on test

vehicles, the Administrative Rules appear to draw lessons from the road test

rules issued by various local government authorities, and in particular those

of the Shanghai local government authority.

2.    Test Subjects: Seven Conditions

The

Administrative Rules set out seven conditions for test subjects, relating to

the nature of the business entity, the scope of business, the capacity to

compensate in the event of an accident, test evaluation, remote monitoring,

event record analysis and conformity with laws and regulations.

Detailed requirements are as follows. The test should:

i. Be an independent legal entity

registered within the territory of the People's Republic of China;

ii. Have the relevant business

capacity for intelligent ICVs, such as automobile and spare parts

manufacturing, research and development of technology, and experimentation and

testing;

iii. Have the financial capacity to

cover civil compensation for any damages caused to people or property by ICVs

during testing;[2]

iv. Have its own evaluation rules

for the testing of the self-driving functions of ICVs;

v. Have the capability to conduct

real-time, remote monitoring of test vehicles;

vi. Have the capability to record,

analyze and reproduce events performed by test vehicles;

vii. Comply with other conditions

required by laws, regulations and rules.

The Administrative Rules do not set out

any special requirements for foreign invested enterprises, with the above

provisions applied equally to wholly foreign invested enterprises and to

Sino-foreign joint ventures registered in China.

Comparing the Administrative Rules with

the rules of road testing previously issued by Beijing, Shanghai and other

cities suggests that the Administrative Rules have for the most part taken as

their basis the Shanghai rules relating to the conditions for the testing

subject.

3.    Test

Drivers: Eight Requirements

Based on the rules of road testing

issued in Beijing and Shanghai, the Administrative Rules include eight

requirements for test drivers on elements including employment or labor service

contracts, self-driving training, and major traffic violation records.

Specifically, test drivers should:

i. an employment contract or a labor service

contract with the test subject;[3]

ii. Have held a driving license for driving the corresponding type of vehicle

and have driving experience of at least three years;

iii. Not in the three most recent demerit periods have received twelve points

under the demerit point system;

iv. In the past year, have no record of serious traffic violations, for

example driving at a speed exceeding 50% of the upper limit or violating

traffic light rules;

v. Have no record of drink-driving or taking State-controlled psychotropic or

narcotic drugs;

vi. Have no record of traffic accidents causing death or serious personal

injuries;

vii. Have familiarity with the testing rules and operation of self-driving

vehicles following self-driving training sessions provided by the test subject,

and be capable of responding to emergencies; and

viii. Comply with other requirements specified in laws, regulations and rules.

In addition, in order to ensure safety,

and on the basis of insights gained from the accident caused by Uber’s

self-driving vehicles, the Administrative Rules specify that a test driver must

always be seated in the driver’s seat of the test vehicle, must observe the

driving status of the test vehicle and the surrounding environment during the

entire test process, and be ready at all times to take control of the vehicle.

III. Safety Guarantee

II: Revocation of Testing Notice

The Administrative Rules set out various

requirements on test vehicles, test subjects and test drivers in order to

ensure the safety of testing. At the same time, the Administrative Rules refer

to the road testing rules issued in Beijing and Shanghai, and especially the

rules in Shanghai, and empower the competent authorities to revoke a testing

notice under certain conditions. The Administrative Rules stipulate that should

any of the following safety issues arise during the testing period, the

competent authorities can revoke the testing notice and suspend the test:

1. The relevant competent

authorities of the provincial or municipal government believe that the testing

activities carry major safety risks;

2. The test vehicle is involved

in a serious violation of traffic rules, such as violating traffic light rules,

driving in the wrong direction, or other serious traffic violations for which

the penalty under traffic law may be to temporarily detain or to revoke the

driving license or to hold the violator in custody;

3. The party owning the test

vehicle has the main responsibility in a serious traffic accident, which, for

example results in serious personal injury, death or significant damage to a

vehicle.

There is currently no specific provision

in Administrative Rules as to what subsequent impact the revocation of a

testing notice might have on the testing subject, such as whether the testing

subject can re-apply for a test and if so how long it would need to wait to

re-apply for such test. These details await further definition in future Local

Rules.

IV. Safety Guarantee

III: Assumption of Liability for Accident

In order to assign responsibility to the

violating parties involved in traffic violations or accidents during an ongoing

test, the Administrative Rules provide a specific section, entitled "Handling

of Traffic Violations and Accidents", in which they clarify how to handle

traffic violations, identify the liability of the parties involved, and specify

the relevant departments responsible for handling accidents and imposing

punishment. The Administrative Rules also stipulate the obligations of the

concerned parties and the reporting requirements on the test subjects and

provincial and municipal competent authorities following any accident. Details are

as follows:

1. In the event of a traffic

violation being committed during an ongoing test, the traffic administrative

department of the public security authority shall deal with the test driver

according to the existing laws and regulations regarding road traffic safety;

2. In the event of a traffic

accident occurring during an ongoing test, the liability of the concerned party

shall be determined according to existing road traffic safety laws and

regulations, and the liability for damages shall be determined in accordance

with relevant laws, regulations and judicial interpretations. Where a crime has

been committed, criminal liability shall be pursued according to law.

In summary, in the event of any traffic

violation, the liability should be assumed by the test driver, and in the case

of traffic accidents, the party assuming the liability for the accident and

damages should be determined according to the law. The Administrative Rules do

not specify in any detail the liability of the test subject. Whether the test

subject, as an employer, should assume overall liability for compensation,

whether they should assume joint liability with the employee, or whether the

producer and/or seller of the test vehicle should assume product liability may

require determination from subsequent legislation or judicial practice.

V. Conclusion

The promulgation of

the Administrative Rules goes a long way to meet the urgent demand for

direction in the development of the ICV industry, providing unified rules for

road testing of ICVs, and guaranteeing the legal basis for road testing of ICVs

at a national level. Key questions for participants in the ICV industry are

likely to include how to satisfy the safety requirements as set out in

Administrative Rules, and how each subject might assume liability for any

accident.

With the evolution of road testing

practice in an ever-increasing number of cities, we will continue to pay heed

to issues such as how the Local Rules may be amended according to the

requirements of Administrative Rules, and how various local governments may

interpret and specify the safety requirements and assumptions of liability as

set out in the Administrative Rules.

HongBin Zhang    Partner          Tel: 86 10 8553 7625              Email:[email protected]

Yang Zhao

Associate      Tel: 86

10 8553 7807              Email: [email protected]

He Yang          Associate      Tel: 86 10 8553 7731      Email: [email protected]

[1]See the

records of the joint press conference on Administrative

Rules of Road Testing of Intelligent Connected Vehicles (for Trial

Implementation) held by the Ministry of Industry and Information

Technology, the Ministry of Public Security and the Ministry of Transportation

on April 12, 2018: http://www.miit.gov.cn/n1146290/n1146397/c6128823/content.html.

[2] The Administrative

Rules require the test subject to purchase compulsory accident liability insurance,

as well as accident liability insurance of no less than RMB 5 million or self-driving

road testing accident indemnity of not less than RMB 5 million for each test

vehicle.

[3] This provision

refers to the Beijing rules on road testing, and adds the requirement of “or

entering into labor service contract” in addition to the Beijing rule of

“entering into employment contracts.”