United States: NHTSA And Motor Vehicle Safety - January 23, 2019

Last Updated: January 29 2019
Article by Christopher H. Grigorian and R. Nicholas Englund


The National Highway Traffic Safety Administration (NHTSA), the primary regulator of motor vehicles and motor vehicle equipment, continues to be active in investigating potential safety-related defects and noncompliance with Federal Motor Vehicle Safety Standards (FMVSS). As the deployment of advanced vehicle technologies continues to accelerate, NHTSA has been increasing its enforcement capacity and looking for ways to encourage further innovation in automated technologies. NHTSA's approach to autonomous vehicles has been and will likely continue to be a wait-and-see approach, while leveraging its research capacities and conducting industry outreach to further understand the building blocks of advanced driver assistance systems (ADAS) to enable the agency to develop future regulations that do not stifle innovation.

Agency Investigations

NHTSA has been working to double the headcount in its Office of Defects Investigation (ODI). Over the past year, the agency has added a number of new investigators and reorganized its enforcement office. In concert with the staff additions and structural changes, NHTSA has continued developing a more data-driven approach to determining whether to open an investigation.

Looking to leverage what NHTSA learns during periodic meetings with manufacturers under Consent Orders, the agency has sought similar, voluntary meetings with major OEMs and large Tier One suppliers. Manufacturers are not required to agree to these meetings and NHTSA's expectations for these meetings are not clear, but regular contact with ODI and the Office of Vehicle Safety Compliance (OVSC) can be beneficial in understanding NHTSA's focus and can aid in building a constructive relationship with the agency. When engaging in these informal meetings, manufacturers should look to understand what the agency's expectations are, particularly in terms of what information NHTSA expects to be shared. Suppliers should also be sensitive to their customers' views with respect to these meetings and how their information might be shared with NHTSA.

NHTSA also continues to seek ways to leverage the mountains of data that it regularly collects – vehicle owner questionnaires (VOQs or customer complaints sent directly to NHTSA), early warning reports, accident reports, and more – using sophisticated data-mining techniques. For more than a year, NHTSA has been working with manufacturers to develop risk matrices to guide its decision-making around the opening of formal investigations. The agency's intention has been to develop a matrix for specific risk categories, such as engine compartment fires, and build a table that weighs the likely safety consequences of a particular condition (severity) against the number of occurrences (frequency). Comparing the severity with the rate, the matrix would use data currently collected by or available to NHTSA to determine when a formal investigation should be opened for a particular issue. NHTSA has worked with a number of manufacturers to develop the matrices and has stated its intention to make them public to demonstrate a more objective and transparent process. NHTSA has yet to officially release specific matrices and it appears they are still under development.

NHTSA's investigations staff was active throughout 2018, opening more than 30 formal investigations, including six engineering analyses and 14 preliminary evaluations. As new investigators become fully integrated into NHTSA and additional support is added, manufacturers should anticipate that NHTSA will continue to actively open formal investigations, as well as make more informal contact with manufacturers to discuss potential safety issues prior to opening a formal investigation. Manufacturers should actively monitor NHTSA's VOQ data for complaints related to their products to prepare themselves for potential questions from NHTSA. Manufacturers should also have processes in place to enable them to promptly and effectively respond to NHTSA inquiries.

NHTSA also has made changes in its Recall Management Division (RMD), which oversees the administration of recalls filed by manufacturers. In 2018, the Department of Transportation's Office of the Inspector General released a report that was critical of certain aspects of NHTSA's oversight of passenger vehicle recalls. The report found that NHTSA's processes lacked documentation and management controls and did not "ensure that remedies are reported completely and in a timely manner." Relevant to manufacturers, the criticisms also included NHTSA's failure to follow up on required documents that were not submitted during the recall, lack of processes for monitoring equipment recalls, failure to monitor the scope of recalls, and failure to verify recall completion rates. Since these criticisms, NHTSA has increased its focus on ensuring that manufacturers timely submit all the required documents and information. For example, NHTSA has begun looking more closely at defect information reports to ensure that the description of the recall scope provides a clearer explanation regarding how the scope was chosen.

RMD's focus on timely and complete documentation will continue through 2019 and the foreseeable future. NHTSA also recently lost its chief of RMD and will likely look to a replacement who will continue RMD's push for increased oversight of recalls. Manufacturers should audit their recall submissions to ensure they are up to date and complete. They should also take the following actions to reduce their compliance risk:

  • Implement (or update) safety compliance policies that provide internal guidance to company personnel for identifying and investigating potential safety defects and FMVSS noncompliances;
  • Implement (or update) procedures for complying with all associated NHTSA reporting requirements (e.g., defect reporting, early warning reporting, and reporting certain non-safety bulletins and customer communications);
  • Revisit early warning reporting procedures to ensure they capture all relevant information (for suppliers, this means fatality claims and notices);
  • Ensure recall documents are complete and timely filed; and
  • Conduct thorough training of key personnel across the organization – domestically and globally – on these procedures and on the importance of bringing potential safety concerns to the attention of appropriate personnel or safety committees.

Autonomous Vehicles

The U.S. Department of Transportation (USDOT) has been actively reviewing regulations throughout the country's ground-transportation network (motor vehicles, rail, commercial vehicles, transit companies, and internal infrastructure) to promote regulatory consistency; to adopt flexible, technology-neutral policies that promote competition and innovation; to modernize regulations and remove regulatory barriers to advanced and autonomous technologies in transportation; and to provide guidance, best practices, and pilot programs to promote automation throughout the transportation network. These principles were explained in detail in the USDOT's Automated Vehicles 3.0: Preparing for the Future of Transportation ("AV 3.0") released in September 2018. AV 3.0 builds on and clarifies prior policy statements released in September 2016 (AV 1.0) and September 2017 (AV 2.0). Due to the rapid changes in autonomous vehicle technologies, the industry should anticipate further refinements to the policy in 2019.

AV 3.0 contains principles that will guide future policies. A key principle is the focus on removing regulatory barriers that may constrain the development of automation and issuing voluntary guidelines rather than regulations that may stifle innovation. The policy also states that NHTSA's current safety standards do not prevent the development, testing, and sale of ADAS in vehicles that comply with current FMVSS, including maintaining traditional controls for human-operated vehicles. Current regulations, however, may pose regulatory barriers for alternative designs, such as non-traditional seating arrangements or vehicles with steering wheels and pedals. In light of these statements, AV 3.0 states that USDOT, including NHTSA, will interpret and adapt regulatory definitions of "driver" and "operator" to recognize automated systems. Further, NHTSA plans to continue using the self-certification approach to safety standards (as opposed to the type-approval approach used in Europe) and actively seek to remove regulatory barriers.

NHTSA has taken steps to meet these goals. It has published requests for public comments and held public meetings regarding potential barriers to autonomous functions in vehicles. It has also requested comments on a potential pilot program to collect data on the operation of autonomous vehicles and comments related to potential standards involving advanced technologies, such as adaptive driving beam systems and camera-based rear-visibility systems. NHTSA has also been actively researching methods for evaluating and testing ADAS. These have included the following NHTSA- and USDOT-sponsored studies:

  • "Human Factors Design Guidance for Level 2 and Level 3 Automated Driving Concepts," DOT HS 812 555 (Aug. 2018);
  • "Functional Safety Assessment of an Automated Lane Centering System," DOT HS 812 573 (Aug. 2018);
  • "A Framework for Automated Driving System Testable Cases and Scenarios – Final Report," DOT HS 812 623 (Sep. 2018); and
  • "Low-Speed Automated Shuttles: State of the Practice," DOT-VNTSC-OSTR-18-03 (Sep. 2018).

This growing body of research will guide NHTSA's future evaluation of ADAS and Level 3 through Level 5 autonomous vehicles. Manufacturers working in the ADAS space should study this research, take advantage of the opportunity to publicly comment on NHTSA's proposals, and reach out to NHTSA to ensure Agency personnel remain apprised of the latest technologies. As these technologies grow more specialized and the interaction among various vehicle components becomes more complex, manufacturers should work with the Agency to ensure that NHTSA understands their technology well enough to regulate and investigate potential failures appropriately.

--Autonomous Vehicle Legislation

On September 6, 2017, the House of Representatives passed the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution ("SELF DRIVE") Act, H.R. 3388. The SELF DRIVE Act was the first major federal effort to regulate autonomous vehicles beyond the previously adopted "voluntary" guidelines. The SELF DRIVE Act aims to improve NHTSA's "ability to adapt federal safety standards to this emerging technology, and clarify federal and state roles with respect to self-driving cars."

A few weeks after the House passed its bill, a similar bill, the American Vision for Safer Transportation through Advancement of Revolutionary Technologies ("AV START") Act, S. 1885, moved out of the Senate Committee on Commerce, Science and Transportation by unanimous vote. The Senate bill would have excluded commercial trucks from key provisions and contained several differences with the House version. The AV START Act has languished in the Senate for over a year and, at the time of this writing, negotiations within the Senate are underway to address the concerns of certain senators, but the bill does not appear poised to pass. With a new Congress in January 2019, these bills will need to be re-introduced and will potentially be changed to reflect the make up of the new Congress and changes to vehicle technology since the bills were originally introduced.

-- NHTSA's V2V Communications NPRM

The future of NHTSA's proposed rule on vehicle-to-vehicle communication in all light-duty vehicles remains in flux. Under the proposed rule, the Agency would issue a new FMVSS No. 150 that would require new light vehicles to be capable of sending and receiving "Basic Safety Messages" related to the vehicle's speed, heading, brake status, and other information to and from other vehicles over dedicated short-range radio communication (DSRC) devices.

In addition to vehicle positional and behavioral data, V2V and so-called vehicle-to-infrastructure (V2I) communications could potentially transmit environmental data, such as road conditions, to surrounding vehicles.

There continues to be a debate on whether the use of DSRC or cellular technology will be the future of V2X communications (the combination of V2V, V2I, and any other devices that will communicate). Significant investment in V2X technologies has already been undertaken and will likely continue, regardless of whether NHTSA's rule becomes final. Two major OEMs have announced that they have or will roll out vehicles using DSRC. The debate, however, continues and will likely become more interesting when the forthcoming 5G wireless system begins to come online. As the technology develops and proves its viability, expect NHTSA and USDOT, with its authority over transportation infrastructure, to continue to play a role in this area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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