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Introduction

The closing years of the Obama administration saw a whirlwind of regulatory activity from NHTSA, including multiple consent orders, record penalties, and soaring recall numbers. The more aggressive enforcement posture, hailed as the “New Normal,” has largely remained in place as the Trump administration has been slow to bring in new political leadership to the agency. Although the Trump administration’s regulatory philosophy is still unclear, the future direction of the agency is beginning to come into focus as the new year gets underway. NHTSA is significantly boosting its investigative staff and implementing structural changes in its enforcement office, changes that are almost certain to lead to more defect investigations. The agency also recently revised its autonomous vehicle policy, setting forth twelve “Priority Safety Design Elements” for automated vehicles. This year, the industry expects to see passage of autonomous vehicle legislation, which has bipartisan support in both the Senate and the House. Passage of such legislation will inevitably trigger a flurry of activity at the agency as it races to meet congressionally mandated rulemaking deadlines. Thus, we expect 2018 to be another busy year for NHTSA and the industry.

Strengthened Enforcement Staff and Enhanced Enforcement Tools

NHTSA is reportedly seeking to double the staff in its Office of Defects Investigation by this spring. It has also structurally reorganized its enforcement office. Previously, NHTSA divided its defect investigations among three divisions based on defect categories: the vehicle integrity division; the vehicle controls division; and the medium and heavy vehicle, motorcycle, and motor vehicle equipment division. Potential safety defects were prescreened by the Defects Assessment Division, which presented potential defect trends to the division with related subject-matter expertise. Collectively, they would determine whether the agency should formally investigate a matter. While data informed these decisions, the agency’s decision-making often relied on subjective factors.

Recently, NHTSA decided to reform its investigative approach, reorganizing the ODI into five investigative divisions – four of which are dedicated to passenger vehicles, with each division assigned to specific vehicle manufacturers; and one dedicated to all issues related to medium and heavy vehicles, motorcycles, and motor vehicle equipment. Importantly, NHTSA will no longer separate the screening process from the investigative one. The divisions will now handle all issues related to their assigned manufacturers or vehicle/equipment types, including screenings and investigations. This new approach approximates some of the work NHTSA has done with manufacturers under consent orders, who have met with NHTSA on a regular basis to discuss all potential safety-related issues they may be reviewing. NHTSA is looking to leverage what it has learned from these consent orders and apply similar techniques industrywide, including asking manufacturers that are not under consent orders whether they are willing to hold similar meetings with the agency.

NHTSA is also seeking to leverage the mountains of information and data it regularly collects – vehicle owner questionnaires, customer complaints, early warning and  fatal accident reports, and more – using sophisticated data-mining techniques. It has also begun working with manufacturers to identify new data sources that may help uncover potential safety issues sooner.

Underlying these structural changes is what may be a dramatic shift in NHTSA’s investigations. The U.S. Department of Transportation’s Office of Inspector General has criticized the agency for lacking consistency in investigative decisions and outcomes. In response, NHTSA has begun developing a risk matrix that would inform its investigative priorities by providing an objective tool for evaluating risks based on the number of reported failures and the severity of their consequences.

As the agency appears poised to further enhance its investigative capabilities, vehicle and component manufacturers should 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 other 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);
  • Conduct thorough training of key personnel across the organization – domestically and globally – on these procedures and the importance of bringing potential safety concerns to the attention of appropriate personnel or safety committees.

Autonomous Vehicles

As vehicle technologies continue to push forward, the industry is keenly interested in how Congress and NHTSA will step in to provide relief from the patchwork of developing state regulations and address current federal regulatory obstacles to the deployment of fully autonomous vehicles. While these questions remain open, proposed legislation and guidance from NHTSA are helping to bring some of the key themes related to these questions into focus.

— Autonomous Vehicle Legislation

On September 6, 2017, the U.S. House of Representatives passed the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act (SELF DRIVE Act), the first major federal effort to regulate autonomous vehicles beyond 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,” according to a press release. The bipartisan bill seeks to accomplish these goals by:

  • Clarifying that NHTSA would regulate the design, construction, and performance of automated vehicles and systems, and expressly preempting differing or conflicting state laws;
  • Requiring manufacturers to submit a safety assessment certification to NHTSA;
  • Requiring manufacturers to develop a detailed cybersecurity plan for automated vehicles;
  • Directing NHTSA to establish an advisory council dedicated to helping the agency remain current on emerging technologies;
  • Requiring manufacturers to develop a written privacy plan specifying how data from automated vehicles will be collected, used, shared, and stored; and
  • Expanding NHTSA’s exemption authority to facilitate development or field evaluation of highly automated vehicles.

A few weeks after the House passed its bill, a similar bill, the American Vision for Safer Transportation Through Advancement of Revolutionary Technologies Act (AV START Act), was unanimously approved by the Senate Committee on Commerce, Science and Transportation. The Senate bill, which differs substantially from the House bill, will have to be reconciled with the House version if the bill advances.

Because there appears to be bipartisan support for many of the ideas contained in these two bills, autonomous vehicle legislation in some form could well make its way into law this year. Final passage would be a welcome step forward in federal regulation, paving the way for the mass deployment of these exciting technologies that are expected to save thousands of lives. Manufacturers should ensure that they stay up to date with these developments.

— NHTSA’s Revised Automated Vehicles Policy

On September 15, 2017, the DOT and NHTSA released their “Automated Driving Systems (ADS): A Vision for Safety 2.0,” which updates and supersedes the Federal Automated Vehicles Policy (FAVP), released in September 2016. Believing they can play a unique role in supporting industry innovation and informing and educating the public about vehicle automation, DOT and NHTSA issued this policy document, referred to as ADS 2.0, to provide voluntary guidance as to what they believe are design best practices for testing and safely deploying automated driving.

These voluntary guidelines address cybersecurity, human-machine interface, crashworthiness, consumer education and training, and post-crash behavior of vehicles with automated driving systems. Specifically, ADS 2.0 sets forth the following best practices:

  1. A robust design and validation process that includes hazard analysis and safety risk assessment;
  2. A description of the vehicle’s operational design domain, including specific operating conditions for the vehicle, such as road types, speeds, areas, geo-fencing, and environmental conditions;
  3. A strategy for “Object and Event Detection and Response” that details how the driver or vehicle will detect and respond to any circumstance while driving;
  4. A design fallback or minimal risk condition that determines what the failsafe mode will be if and when it is triggered;
  5. A robust validation method that includes simulation, test track, and on-road testing;
  6. A strategy for handling human-machine interface that determines when to alert the driver to take over vehicle controls;
  7. A cybersecurity plan that is built from the product’s development and will share information with the Automotive Information Sharing and Analysis Center (Auto-ISAC);
  8. Designs that continue to incorporate crashworthiness standards;
  9. A post-crash strategy that contemplates how to handle and possibly move vehicles involved in crashes;
  10. A method for recording and preserving data that may be needed in crash investigations;
  11. Educating consumers regarding how to operate these technologies; and
  12. Compliance policies for the mix of federal, state, and local laws.

ADS 2.0 also encourages manufacturers to submit to NHTSA, and the public, a Voluntary Safety Self-Assessment that demonstrates the manufacturer is: (1) considering the safety aspects of automated technologies; (2) engaging with NHTSA; (3) encouraging industry safety norms for the technologies; and (4) building public trust, acceptance, and confidence through transparent testing and deployment of automated driving systems and vehicles. Due to persistent concerns regarding the safety of automated driving technologies, manufacturers deploying these technologies will likely look for ways to demonstrate conformity with these design principles through a safety self-assessment or similar public outreach. Publicly sharing aspects of a safety assessment or similar materials may be an important strategy in facilitating broad acceptance of these technologies, particularly as more of these assessments become public.

NHTSA is currently drafting a third revision of its autonomous vehicle guidelines, Federal Automated Vehicle Policy (FAVP) 3.0. We will report on these new guidelines when they are published later this year.

— NHTSA’s V2V Communications NPRM

The future of NHTSA’s proposed rule on vehicle-to-vehicle communication in all light-duty vehicles, issued in December 2016, is uncertain.  Under its Notice of Proposed Rulemaking (NPRM), the agency would issue a new federal motor vehicle safety standard that would require new 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 short-range radio communication 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.

In November 2017, there were published reports that NHTSA was going to axe the proposed rule. But NHTSA later clarified that it was still considering the proposal and evaluating responses from the industry and the public. Whether a final rule is adopted and what such a rule would look like remains to be seen. Regardless, many in the industry have made significant investments in V2V technologies and will likely continue to develop them, regardless of whether the rule becomes final. As the technology develops and proves its viability, expect NHTSA to continue to play a role in this area, as the agency occupies a unique position to resolve potential coordination problems among competing technologies.