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      2. 疫情沖擊下的中國汽車產業加速制度創新和升級
        Haiwen Client Alert - Regulatory Environment still Evolving for China's Automobile Industry even with COVID-19 Pandemic
        2020/5/15 16:22:32  點擊率[619]  評論[0]

            China’s automobile production capacity is gradually recovering from the COVID-19 pandemic while challenges still tough at the demand side. Through the first four months of 2020, various government departments have been promulgating policies and regulations to promote the automotive industry. This client alert of Haiwen aims to sort out the important industrial policies and regulations recently introduced with respect to new energy vehicles (NEVs) and intelligent connected vehicles (ICVs), and provide reference for practitioners in the automotive sector and investors focusing on such industry.
            Major take-aways from this article:
            Industry access policies for NEVs will be adjusted soon
            Extension of subsidy period for NEVs
            Rewards are to take the place of subsidies for encouraging Fuel Cell Vehicles
            Ongoing efforts on the standardization work of NEVs
            The regulatory system of extended producer responsibilities applicable to
            the automobile industry
            Increasing deployment of electric vehicles (EVs) to benefit public services
            Release of innovative development strategies for ICVs
            Framework of telematics standards tends to be complete
            Comments sought on the Guidelines for the Development of the Network
            Data Security Standards which also cover telematics
            The purchase activity of ICV manufacturers may be subject to cyber security
            Standards for the Classification of Vehicle Driving Automation is on the way
            Industry Access Policies for NEVs Will Be Adjusted Soon On April 7, 2020, the Ministry of Industry and Information Technology (MIIT) released the revised draft Administrative Provisions on the Access of New-Energy Vehicle Manufacturers and Products for public comment.
            The Draft for Comment deletes the requirements for "design and development capacity" concerning the industry access by NEV manufacturers, reducing the requirements for access review from 17 items to 9 items, among which the number of fail-one-for-all items is also reduced from 8 to 5. This revision may impact the industry in ways of (a) facilitating the introduction of overseas-designed vehicle models by multinational vehicle enterprises to manufacture in China; and (2) stimulating investment in the manufacturing of NEVs, and supporting the NEV "new forces" (such as NIO) and top NEV brands to rapidly expand production capacity by leveraging the OEM mode.
            While the number of items subject to access review decreases sharply, the Draft for Comment supplements several review requirements for FCEVs, which, with the combinative effect of other parts of this article, clearly indicates that the regulatory authorities of the industry are paying more and more attention to FCEVs.
            With respect to NEV products, the Draft for Comment makes subversive adjustments to the structure and item setting on the table of major technical parameters of such products, and currently there are 40 items of "basic characteristic parameters of vehicles" and 102 items of "characteristic parameters of new energy vehicles".
            In addition, pursuant to the Draft for Comment, the permitted suspension of NEV production has been prolonged from 12 months to 24 months or longer, which is consistent with the provisions of the third paragraph of Article 34 of the Administrative Measures on Access of Road Motor Vehicle Manufacturers and Products promulgated in November 2018. A motor vehicle manufacturer is not allowed to go through any alteration formalities of access if the production suspension is longer than the permitted period, and the resumption of production shall be subject to verification of access conditions. The aforementioned changes will support the NEV manufacturers to resist the business pressure generated by the COVID-19 epidemic.
            Extension of Subsidy Period for NEVs
            On April 23, 2020, four ministries and commissions, including the Ministry of Finance (MOF) and MIIT, jointly issued the Circular on Improving the Fiscal Subsidy Policies for the Promotion and Utilization of New Energy Vehicles (the "MOF Circular "), extending the effective period of fiscal subsidies applicable to NEVs to the end of 2022, and the subsidy standards shall not be lowered in 2020. The subsidy standards will be lowered by 10% in 2021 and 20% in 2022 against the standard applicable in the immediate previous year respectively. In principle, the number of subsidized vehicles will be capped at about 2 million for each year.
            Rewards to Take the Place of Subsidies for Encouraging FCEVs
            As specified in the MOF Circular, the encouraging policies for FCEVs would be changed from the original government subsidies. In the future, the central government will select certain demonstration cities focusing on technology breakthroughs of key components and parts of FCEVs and the industrialized application of such technologies (the relevant implementation rules will be promulgated separately). The target is to in about four years establish the industrial chain of hydrogen energy and FCEVs and to achieve R&D breakthroughs of related key technologies.
            Ongoing Efforts on the Standardization Work of NEVs On April 16, 2020, MIIT issued the Key Tasks for the Standardization Work of New Energy Vehicles in 2020, setting out the action list for standardization work in the categories of complete electric vehicles, FCEVs, power battery and electric charging facilities. The tasks worthy of attention include:to complete the establishment of (a) standards of safety requirements after EV collision; (b) standards of testing methods to identify the pure EVs’ energy consumption and driving range and the energy consumption of hybrid EVs; and (c) standards of safety requirements for EVs’ battery exchange;initiation of a project for (a) standards for testing methods of the power performance of pure and hybrid EVs; (b) standards for hydrogenation communication agreements;(c) standards of safety requirements for FCEVs after collision; and (d) standards for FCEVs' engines, air compressors, vehicle-mounted hydrogen systems and other key components;pre-research for (a) relevant standards of safety performance evaluation method and test specifications of EVs in use; (b) standards of safety test methods of power batteries;and (c) revision on standards of specifications and dimensions of power batteries; and accelerating the formulation of (a) standards of the hydrogenation gun and hydrogenfilling orifice of FCEVs; and (b) relevant EV standards for the interoperability requirements and testing for wireless charging, and the electromagnetic compatibility.
            The Regulatory System of Extended Producer Responsibilities Applicable to the Automobile Industry
            On March 23, 2020, MIIT issued the Key Points for Industrial Energy Conservation and Comprehensive Utilization in 2020, requiring to promote the development of power storage battery recycling system for NEVs and urge enterprises to accelerate the
            performance of traceability and recycling responsibilities. Furthermore, the Implementing Plan for the Pilot Program of Extended Responsibilities of Automobile Product Manufacturers shall be studied and formulated.
            On December 25, 2016, the General Office of the State Council issued the Plan for Promoting the Extended Producer Responsibility System (the "Plan"), requiring producers in certain industries to assume resource and environmental responsibilities for their products in the entire life cycle by extending such responsibilities from the production stage to the stages of product design, circulation and consumption,recycling, waste disposal, etc. The manufacturers of NEVs and power storage batteries shall be responsible for the establishment of waste battery recycling network,and collect and publish recycling information to ensure that the waste batteries are recycled according to standards and disposed of safely. Power storage battery manufacturers shall implement the product code and establish the whole life cycle traceability system.
            On July 2, 2018, MIIT issued the Interim Provisions on the Traceability Management of Recycling of Power Storage Batteries Used for New Energy Vehicles, establishing a management platform to collect information on the whole process of production,sales, use, retirement, recycling and utilization of power storage batteries, and to monitor the performance of recycling responsibilities by responsible entities at all stages. NEV manufacturers shall, within the prescribed time limit after the production/import and sale of vehicles, and the maintenance, replacement, recycling for warehousing and delivery out of warehouses of power storage batteries, report information to the traceability management platform.
            On December 16, 2019, MIIT released two departmental rules concerning the comprehensive utilization of waste power storage batteries of NEVs, encouraging manufacturers of NEVs and power storage batteries to participate in the establishment of new projects that use waste power storage batteries of NEVs in a reasonable manner, and putting forward specific requirements for technologies, equipment and techniques of such projects.
            Increasing Deployment of EVs to Benefit Public Services On March 13, 2020, twenty-three ministries and commissions led by the National Development and Reform Commission (NDRC), jointly issued the Implementing Opinions on Promoting the Expansion of Consumption and the Improvement of Quality to Speed up the Formation of a Powerful Domestic Market, urging local governments to gradually put more subsidy support on the local transport operation with NEVs instead of the simple purchase of NEVs, and focus on supporting urban public transport. On March 16, the No. 1 Department of Equipment Industry of MIIT organized a video conference to listen to the opinions and suggestions of industry institutions and enterprises on promoting the electrification of vehicles used in public services. The next step is to prepare for an action plan on the utilization of EVs in public services, and actively promote the EV use in such fields as public transportation, urban sanitation, postal services, taxis, commuters and light-duty logistics and distribution services.
            Release of Innovative Development Strategies for ICVs
            On February 10, 2020, eleven ministries and commissions led by NDRC, jointly issued the Innovative Development Strategies for Intelligent Vehicles, outlining the blueprint for the development of intelligent vehicle industry with China standards from six perspectives, i.e.,the technological innovation system, industrial ecological system,infrastructure system,system of regulations and standards, product supervision system and cyber security system. We believe that the strategies of the infrastructure system and the system of laws, regulations and standards deserve special attention.
            As far as the infrastructure system of intelligent vehicles is concerned, the strategies emphasize the promotion of intelligent road infrastructure, and the construction of (a)a wide-coverage vehicular wireless communication network, (b) the capacity of highprecision vehicular space-time benchmark service covering the whole country, (c) the road traffic geographic information system covering the national road network, and (d) the national intelligent vehicle big data cloud control infrastructure platform. These strategic goals initially respond to the core concerns of intelligent vehicle development such as V2X communications, road navigation, high precision maps, traffic command platform, and so on.
            As far as the legal and standard system of intelligent vehicles is concerned, the strategies call for making studies into legal issues and ethics rules in respect of the recognition of "machine drivers", assumption of liabilities by various different stakeholders, cyber security, data management, etc. in connection with the intelligent vehicles, and making clear legal rights, obligations and liabilities of relevant stakeholders. The strategies further require formulating laws,regulations and norms regulating the testing, industry access, use, supervision, and other aspects of intelligent vehicles,and revising and improving laws and regulations on road traffic safety and geographic information surveying and mapping. These research directions and fields do capture the key points on this theme.
            Framework of Telematics Standards Tends to Be Complete
            On April 15, 2020, the MIIT, the Ministry of Public Security and the National Commission of Standardization Administration jointly issued the Guidelines for Development of the National Industry Standard System for Network of Vehicles (Intelligent Management of Vehicles). The overall framework of the national industrial standard system for telematics is shown as follows:
            Within the abovementioned framework, the guidelines for developing the ICV standard system were released on December 27, 2017, and the guidelines for developing the national telematics standard system concerning (a) the general requirements, (b) the information and communication and (c) the electric products and services were released on June 8, 2018. At present, only the guidelines for developing standard systems of intelligent transportation have not been issued. These guidelines constitute the blueprint for formulating the national telematics standard system, and provide an important reference for understanding the overall technical framework of ICVs.
            Comments Sought on the Guidelines for Development of the Network Data Security Standards Which Also Cover Telematics
            On April 10, 2020, the Department of Science and Technology of the MIIT sought public comments for the Guidelines for Development of the Network Data Security Standards (Draft for Comment), with the public-input process to be concluded on May 9, 2020.The framework of this network data security standard system consists of four categories, i.e., basic generality,key technologies, security management and key fields.Telematics is one of the "key fields" within the data security standard system.
            According to the Draft for Comment, the telematics data security concerns cover a full rage of connection and data interaction processes within vehicles, between vehicles,between vehicles and roads, between vehicles and people, and between vehicles and service platorms, and the data security and privacy protection run through all stages of the vehicle networking. The data security standards in respect of vehicle networking mainly include (a) the data security of cloud platform for vehicle networking, (b) the data security of V2X communications, (c) the data security of ICVs and (d) the mobile app data security for vehicle networking.
            The Purchase Activity of ICV Manufacturers May Be Subject to Cyber Security Review
            On April 13, 2020, eleven ministries and commissions led by the Office of the Central Leading Group for Cyberspace Affairs jointly issued the Measures for Cyber Security Review (the "Measures"). Starting from June 1, 2018, cyber security review (CSR) shall be conducted against the network products and services purchased by critical information infrastructure (CII) operators if such purchase has or may have national security implications.
            Under the Measures, CII operators must apply for CSR prior to concluding contracts with providers of such products and services as the core network equipment, highperformance computers and servers, large-scale storage equipment, large-scale database and application software, cyber security equipment and cloud computing services which may have significant impacts on the security of CII. If the application for CSR is filed after the execution of the contract, it shall be provided for in the contract that the contract shall not become effective until the CSR is cleared. The examination period may last 45 to 60 working days. If different opinions from the regulatory authorities result in entry into the special review process, the overall review cycle may be more than 105 working days.
            Important network and IT system operators in the field of highway and waterway transport may be identified as CII operators. As for automakers and after-sales service providers, in consideration of the following factors and trends, the Measures may have increasing impact on their long-term operations though the short-term implications may be limited.
            (1) From, to and with each ICV unit, ICV manufacturers or data processing operators acting on their behalf have been carrying out data collection,storage, processing and utilization through sensors, chips and telecom networks in the vehicle or on the road,for the purposes of, e.g., structuring data to train and upgrade autopilot algorithms, and continuously OTA uploading to driving automation and other vehicle systems. With the incremental registration of its ICVs, an ICV maker’s risks in relation to data security and information protection within such data transmission network will gradually enlarge;
            (2) An ICV unit that keeps doing V2X data exchange will more and more become a node in the network. Unauthorized intrusions into ICV computer systems and malicious control of vehicles will pose a major threat to the development of ICV industry and public transport security;and
            (3) Top automakers are actively turning to the role of comprehensive transport service providers, so as to directly enter the transportation service industries and operate the related service networks.
            Over time,each ICV within the transport service system could form part of a public transport network. In this sense, the leading ICV manufacturers and service providers supplying and operating an ICV fleet are most likely to be identified as CII operators.In the process of ICV development,automakers need to remain sensitive about the CII identification and CSR requirements,adjusting their working protocols to ensure legal compliance under the Measures.
            Standards for the Classification of Vehicle Driving Automation Is on the Way
            On March 9, 2020, the Department of Science and Technology of the MIIT sought public comments on the draft for approval of the Levels of Vehicle Driving Automation as a recommended national standard, and the public consultation process was concluded on April 9. Basically, the Draft for Approval adopts six levels of 0-5 classification, which are similar to SAE practice, to define the different levels of autonomous driving.
            As a summary:
            (1) Level 0 driving automation system is roughly equivalent to the ADAS function in the present market;
            (2) Levels 1 and 2 only require the driving automation system to continuously perform lateral/longitudinal vehicle motion control, and have the corresponding capabilities of objective and event detection and response (OEDR). Level 1 differs level 2 by requiring either lateral or longitudinal vehicle motion control, while level 2 requires both;
            (3) Different from levels 1 and 2, levels 3-5 driving automation systems may perform all dynamic driving tasks (DDTs);
            (4) Levels 3 and 4 driving automation systems only require the full DDT function to be activated and performed within the operational design conditions (ODCs),each of which needs to identify the upcoming failure to meet any ODC andtherefore make request to intervene (in the case of level 3) or activate the DDT
            fallback (in the case of level 4); while level 5 has no ODC restriction;
            (5) Level 3 driving automation system differentiates itself from levels 4 and 5 primarily on its need of "DDT fallback-ready user". Level 3 driving automation system shall detect the availability of the DDT fallback-ready user,and reserve time for the user’s response, and implement the risk mitigation strategy when the DDT fallback-ready user fails to respond; while a level 4 or level 5 driving automation system shall, without the intervention of DDT fallback-ready user, be able to activate the DDT fallback and achieve the minimal risk condition (MRC) in the case of, among others, driving automation system failure or other vehicle system failure;
            (6) The less significant difference between level 3 driving automation system and levels 4 and 5 vests in the fact that level 3 can only identify the driving automation system failure, but levels 4 and 5 can additionally identify other vehicle system failures; and
            (7) When the user requests to exit the driving automation system, levels 0-3 must immediately release the control of vehicle, while levels 4 and 5 may postpone the release of control in the event of safety risk.
            Apparently the foregoing driving automation classification and the defined roles of users and systems set forth in the draft for approval create the basis of liability assumptions between the designer/automaker and the user of ICVs or driving automation systems. It will significantly influence the theory of accountability and the principle for producing evidences to tackle the disputes arising from the design,production, use, repair and maintenance of ICVs.Ending Words On December 3, 2019, the Department of Industrial Equipment of the MIIT sought public comments on the Development Plan for the New Energy Automobile Industry(2021-2035) (Draft for Comment), initiating a profound discussion on both "new energy" and "intelligent and connected" vehicles. Just three months later, however,the 5 levels of ICV classification set forth in such Draft for Comment was amended by the Science and Technology Department of the MIIT in the aforesaid draft recommended standards of the Levels of Vehicle Driving Automation, which perfectly stands for the fast development of knowledge, technology and policy in this area. We look forward to the wisdom and vision contained in this long term industry plan,leading the new energy and intelligent connected vehicles sector through the economic downturn yet to come to the end.
            Disclaimer:This article represents the author's personal views and is for your reference only.Neither this article nor any part of it constitutes any legal opinion or recommendation in any jurisdiction. If you have any questions or needs, please contact Mr. Rui Feng(fengrui@haiwen-law.com).