While vehicle manufacturers continue to adopt technologies that make vehicles safer, the safety gains seen in the annual fatality statistics published by the National Highway Traffic Safety Administration (“NHTSA” or the “Agency”) have plateaued and, since approximately 2015, the number of fatalities has risen. NHTSA estimates that nearly 43,000 people died in vehicle-related accidents in 2021, approximately 10% more than in 2020. Seeing this trend, the Agency continues to pursue an active role in enforcing safety standards, investigating potential safety-related defects, and reviewing emerging technologies.

NHTSA’s Approach to Regulating Automated Vehicles and Automated Driver Assist Systems

As automated technologies continue to evolve, NHTSA has begun to develop its approach to regulating Automated Driving Systems (ADS) and Advanced Driver Assistance Systems (ADAS) technologies. The Agency’s approach involves the broad use of its information gathering tools to police technologies on public roads. Using the information it gathers through a wide variety of sources, NHTSA has been quick to investigate ADS-equipped vehicles being used in development projects.

Two primary sources NHTSA has used in reviewing automated technologies are (1) Standing General Orders (SGOs), which mandate reporting obligations for certain accidents and monthly reporting requirements for more than 100 vehicle manufacturers, suppliers, and vehicle operators, and (2) Information Requests.

SGO 2021-01, as amended

Initially issued in June 2021, SGO 2021-01 requires the subject manufacturers and operators to report to the Agency certain crashes occurring on publicly accessible roads that involve vehicles using Level 2 (L2) ADAS and Level 3 (L3) and above automation.

In June 2022, NHTSA released reports analyzing data reported under SGO 2021-01 and made available to the public non-confidential portions of the reported data. This publicly available data includes the following information:

• Name of the reporting entity;

• Make, model, and model year of the vehicle involved in the incident;

• A unique vehicle identifier;

• Incident information (e.g., incident month and year);

• A unique incident identifier;

• Incident scene (e.g., roadway type);

• Crash description (e.g., object crash occurred with);

• Post-crash information (e.g., indication of any investigation by a law enforcement agency);

• Narrative (e.g., description of the pre-crash, crash, and post-crash details).

On April 5, 2023, NHTSA issued the Second Amended SGO 2021-01, extending the duration of the SGO requirements for three years from April 5, 2023 (approximately two years beyond the duration identified in the First Amended SGO 2021-01). Effective May 15, 2023, the Second Amended SGO 2021-01 also made adjustments to definitions and reporting time periods. The Agency views these reports as important information gathering tools that ensure NHTSA learns of potential safety concerns with automated technologies through consistent and timely data collection. “Given the rapid evolution of these technologies and testing of new technologies and features on publicly accessible roads, it is critical for NHTSA to exercise its robust oversight over potential safety defects in vehicles operating with ADS and Level 2 ADAS.” Second Amended SGO 2021-01 at p. 2.

Information Requests

In addition to collecting crash data through SGO 2021-01, NHTSA has been actively investigating incidents involving ADS-equipped vehicles leading to several vehicle recalls. As part of these investigations, NHTSA continues to use broad information requests to the manufacturer of the incident vehicle as well as “peer information requests” to competitors. Although NHTSA has a long history of using peer information requests, it is increasing the frequency and breadth of such requests as they relate to these advanced technologies. NHTSA likely sees these investigations as a necessary part of understanding the evolving use of ADS and ADAS technologies.

NHTSA Continues to Pursue a Full Rulemaking Agenda in 2023

While actively investigating potential safety issues, NHTSA continues to develop a regulatory path for deploying ADS-equipped vehicles that lack traditional controls.

Amendments to NHTSA’s Crashworthiness Standards

On January 13, 2021, NHTSA’s Deputy Administrator signed a final rule amending portions of the 200-Series FMVSS (the crashworthiness standards) to remove barriers for Autonomous Vehicles (AVs) that lack traditional manual controls necessary for human drivers. Due to the transition in presidential administrations, NHTSA initially held off on publishing the final rule to permit the new administration to review the rulemaking; however, on March 30, 2022, NHTSA published the final rule in the Federal Register. The final rule was the culmination of multiple Federal Register notices, public discussions with stakeholders, and a March 2020 notice of proposed rulemaking (NPRM).

The final rule creates increased opportunities for certain AVs by updating and adding definitions within the 200-Series standards, modifying the application sections of several standards (e.g., by stating that FMVSS 203, Impact protection for the driver from the steering control system, and FMVSS 204, Steering control rearward displacement, do not apply to vehicles without steering controls), and adjusting spatial references in test procedures that rely on traditional vehicle controls that may not exist in AVs. The final rule also excluded from existing crashworthiness requirements AVs that are designed exclusively to carry property.

In finalizing the amendments to its crashworthiness standards, NHTSA sought to maintain the level of safety the prior crashworthiness standards upheld. The Agency intended these amendments to account for new vehicle designs and to ensure that vehicles using non-traditional controls remained subject to the crashworthiness standards. The Agency focused on traditional seating arrangements (forward facing) and did not amend requirements related to telltales and warnings (with one exception). These amendments have been well-received by the industry, which is eager to find a regulatory pathway to deploying AVs that would not require a lengthy and uncertain exemption process. The modest adjustments to the standards represent a sensible update to requirements that balance the Agency’s desire to maintain the standards for traditional vehicles, which the Agency has spent decades developing, and the need for regulatory clarity to facilitate developing ADS technologies.

New Office of Automation Safety

With respect to exemptions, NHTSA recently created the Office of Automation Safety to focus its internal resources on this developing portion of the industry. Within the Office of Automation Safety, NHTSA created the Automation Exemptions Division, which may facilitate NHTSA’s review of applications for temporary exemption under 49 U.S.C. § 30113, as well as vehicle testing exemptions that fall within 49 U.S.C. § 30114(A).

Regulatory Changes for Electric Vehicles

As the number of electric vehicles (EVs) in the U.S. expands, and with some prominent recalls involving batteries, NHTSA continues to evaluate standards and technologies that can advance safety for EVs. NHTSA’s rulemaking agenda includes a potential amendment to FMVSS 305, Electric-powered Vehicles; Electrolyte Spillage and Electrical Shock Protection. Currently, FMVSS 305 applies to certain vehicles with a gross vehicle weight rating below 10,000 pounds. To support this rulemaking agenda, NHTSA also is working with the Department of Energy (DOE) to leverage DOE’s expertise in battery research. Further, NHTSA has actively investigated incidents and impacted recalls that involve potential concerns with EV battery systems.

Other Notable Upcoming Regulatory Changes

NHTSA’s rulemaking agenda includes several additional notable rulemakings:

• Alternative options for rearview mirrors: In 2019, NHTSA published an advanced notice of proposed rulemaking (ANPRM) seeking comments on the use of camera-mounted systems (CMS) that would replace side-view mirrors as a compliance option under FMVSS 111, Rear visibility. NHTSA scheduled a notice of proposed rulemaking (NPRM) for its 2023 agenda.

• Assessment of FMVSS Test Procedures: In 2020, NHTSA published an ANPRM seeking comments on updating FMVSS test procedures to account for new vehicle designs, including electric vehicles. NHTSA scheduled an NPRM for its 2023 agenda.

• Nonpneumatic tires: NHTSA’s agenda for 2023 added an ANPRM related to use of nonpneumatic tires (NPTs) that would seek comments on how to amend current regulations to accommodate NPTs.

• Forward lighting: The Bipartisan Infrastructure Law mandated that NHTSA propose performance-based standards for vehicle headlamp systems to ensure that headlights are correctly aimed on the road and to require those systems to be tested on-vehicle to account for headlight height and lighting performance. The statute requires a final rule by November 15, 2023.

• Lane Departure and Lane-Keeping Assist Systems: The Bipartisan Infrastructure Law mandated that NHTSA establish a Federal Motor Vehicle Safety Standard requiring new vehicles to be equipped with a lane departure warning system that warns the driver to maintain the lane of travel, and a lane-keeping assist system that corrects the course of travel if the driver fails to do so. NHTSA’s agenda includes publishing a proposed safety standard in 2023.

The agenda also includes publishing final rules to upgrade the LATCH system for child seats, improve child protection in FMVSS 213, Child Restraint Systems, adopt advance glazing and anti-ejection safety countermeasures for motorcoaches, update requirements for event data recorders (EDRs), update the Part 512 requirements for requesting confidential treatment of materials submitted to NHTSA, and add amendments to the 5^th percentile crash dummy.

The automotive industry should anticipate more robust enforcement actions from NHTSA under the current administration. NHTSA has taken an increasingly hard line in denying petitions for inconsequential noncompliance as well as ensuring that manufacturers timely meet all reporting requirements under the Agency’s defect and noncompliance reporting regulations. The Agency’s particular interest in policing the scope of recalls is likely to continue through the liberal use of informal requests as well as formal investigations (such as the use of recall, audit and equipment queries).

To reduce enforcement risk, manufacturers must ensure that their internal safety evaluation and reporting procedures are up-to-date and that key personnel are properly trained to identify and escalate potential safety defects, FMVSS noncompliance, and other potentially reportable events. These procedures should include a process for confirming that all required filings are timely and complete, and that amendments or updates to reports are timely submitted. Manufacturers also should have processes in place to monitor regulatory developments and, where appropriate, participate in the rulemaking process by submitting comments and/or engaging with their industry associations to ensure that the Agency’s rulemakings reflect input from all stakeholders. The authors of this article assist automotive companies with these issues every day and are available to answer your questions.