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In December 2020, NHTSA posted a significant Notice of Interpretation with important ramifications for manufacturers of autonomous vehicles. The Notice Regarding the Applicability of NHTSA FMVSS Test Procedures to Certifying Manufacturers updates the Agency’s position taken in a 2016 letter to Google on the relationship between FMVSS and AVs with novel designs lacking traditional controls, e.g. a steering wheel, brake pedal, etc.

Traditionally, under NHTSAs self-certification process, manufacturers were not required to test a vehicle’s performance under the specific conditions of a particular FMVSS. Instead, generally speaking, they were permitted to self-certify using simulations or engineering analysis. But despite alternatives to certification through testing by the manufacturer, the FMVSS themselves still provided a means for actually testing vehicles against defined performance criteria. The issue in this recent notice, however, “regards the situation where NHTSA is not able to test a vehicle in accordance with the FMVSS test conditions and procedures due to its design.” As with the previous 2016 Google interpretation, this is particularly significant for vehicles designed without manual controls like a steering wheel or brake pedal. Continue Reading NHTSA Makes a U-Turn on AV Regulation in Latest Notice of Interpretation

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As ADAS technologies proliferate in a largely unregulated environment, human factors scientists are studying consumer adoption to a wide array of manufacturers’ offerings. Recently, in collaboration with human factors scientists from Exponent, Dykema Member Michael Carey examined the current state of ADAS availability in new vehicles with discussion of various regulatory and litigation considerations. Click here to read the article “Safety and Regulatory Considerations of Advanced Driver Assistance Systems (ADAS),” published in the ABA Tort Trial and Insurance Practice Section Newsletter.

To sign up for The Open Road: Automotive Law Blog email updates, please click here. 

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On November 19, 2020, NHTSA issued an Advance Notice of Proposed Rulemaking (“ANPRM”) asking interested parties and the public to provide the agency with information intended to help NHTSA devise a “Framework for Automated Driving Safety” that will allow the agency to implement safety standards for the operation and performance of automated driving systems. Comments are due 60 days after the ANPRM is published in the Federal Register. NHTSA last addressed AV in March, when it issued a Notice of Proposed Rulemaking addressing occupant safety and crashworthiness for AVs that do not have typical seating configurations. This notice addresses operation of the automated systems in SAE Level 4 and 5 vehicles.  Continue Reading NHTSA Releases Advance Notice of Proposed Rulemaking For Automated Driving System Safety

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Despite the Cataclysm of COVID-19 Shutdowns, Automotive Operations Had Successful Reopenings

The abrupt shutdown of U.S. automotive industry in March 2020 during the COVID-19 pandemic and continued stay-at-home orders through April led to fears that the pandemic would prevent resumption of industry operations for the foreseeable future. A survey of automotive industry executives conducted last month by Dykema, MICHAuto and The Right Place confirmed that 84% of the automotive company respondents were required to shut down their U.S. operations. About 50% of such respondents reported a required shut-down of operations in Mexico as well.

Given the widespread impact of the pandemic on the industry, plans for a re-start of regular operations were threatened by anticipated supply chain disruptions, incorporation of new worker safety procedures and favorable reception by employees, and intermittent shutdowns caused by positive COVID-19 cases. Although these obstacles may have stymied the endeavor, they did not prevent the automotive company respondents from successful reopenings. Despite certain well-publicized exceptions, survey results showed that the re-start of automotive operations went smoothly. Only 20% of automotive company respondents reported having to suspend operations after reopening for COVID-19 related issues, with only 5% having to suspend in Mexico or Europe.

“The smooth restart is a testament to the strength of Michigan’s automotive industry. OEMs and suppliers were not only able to pivot to manufacturing PPE equipment in the face of a global pandemic, but that the re-opening was organized, thoughtful, and implemented almost seamlessly,” said Glenn Stevens Jr., executive director of MICHauto and the vice president of Automotive and Mobility initiatives for the Detroit Regional Chamber. “In order for automotive to stay open and continue operations, we need other industries to follow suit in employing critical and smart safety measures, both at work and at play. That is what will drive a path to recovery.”

Use the links below to see all insights from respondents on how COVID-19 affected the U.S. economy and the automotive industry.

Flash Survey Results and Summary

Flash Survey Infographic

Dykema, MICHauto and The Right Place will host a webinar on August 13 at 11:00 a.m. ET to review the survey results and discuss the impact of COVID-19 on the future of the automotive industry. Click here to register. Should you have any questions or if you would like more information, please contact your Dykema attorney or any member of Dykema’s Automotive Industry Group.

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The automotive industry is a critical component of the U.S. economy connecting a wide range of industries, from part and raw material suppliers to providers needed for the day-to-day sale and operation of vehicles. In July 2020, Dykema, MICHauto and The Right Place canvassed automotive executives, professionals and service providers to gauge their perspectives on the U.S. economy and the automotive industry and, particularly, the effect of the COVID-19 pandemic.

Click on the links below for insights regarding how respondents feel COVID-19 affected the U.S. economy and the automotive industry. Continue Reading Results Are In! Dykema, MICHauto and The Right Place COVID-19 Automotive Outlook Flash Survey

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Partnering with MICHauto and The Right Place, Dykema developed a five-minute flash survey to evaluate the current state of the automotive industry. Please click here to participate in the survey. The results will be analyzed to provide insight regarding the impact COVID-19 has had on businesses in the automotive industry. Dykema will also share feedback received regarding how operations could change moving forward. Your response to this short survey is anonymous.

Click here to share your input.

To sign up for The Open Road: Automotive Law Blog email updates, please click here. 

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What Do You Do When Your Contract Does Not Contain A Force Majeure Clause?

As the coronavirus disease (COVID-19) continues to spread rapidly throughout the United States—and the world—commercial relationships are being thrown into disarray, resulting in the disruption of supply chains, cancellations of events, and closures of restaurants and other businesses. Several states have declared a state of emergency (including banning large group gatherings and mandating that certain business shutter for the time being). Many companies are requiring that their employees work remotely. As a result of the substantial impact on “business as usual” operations, companies are facing decisions about what to do when COVID-19 circumstances make it difficult (if not impossible) to comply with certain contractual obligations. Will COVID-19 provide your company with a legal defense excusing performance?

If you are operating under a contract governed by United States law, the first place to look for the answer is within the four corners of the contract document itself. Specifically, check your contracts to determine whether there are force majeure or other impossibility of performance-type clauses. If not, are you out of luck? The answer differs depending on the subject matter of the contract. Continue Reading Is Your Contract Virus-Proof? [Part II]

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Michigan Governor Whitmer signed Executive Order 2020-77 today, permitting manufacturing workers to resume work as part of the MI Safe Start Plan. Manufacturing workers, including workers in the automotive industry, are allowed to resume work on May 11, 2020, one week ahead of the planned restart date of certain Michigan automakers. See Executive Order No. 2020-77, Section 10(k).

However, this resumption of work is subject to stringent precautionary measures and safeguards identified in the Order, including detailed requirements outlined in Section 11(k). These requirements include, among several other requirements: Continue Reading Automotive Manufacturing Workers Allowed to Resume Work Next Week in Michigan

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Data security is not just hackers in cyberspace. It also exists in the physical world, and some of it relates to pedestrian but necessary security protocols for nuts-and-bolts objects. A recent report of a data leak shows how focusing exclusively on active systems can lead to unexpected and potentially problematic results.

In the story linked above, a manufacturer of connected vehicles replaced a number of its data storage appliances. A white-hat hacker reported that he had purchased four of the replaced units from eBay and found that they still contained the customers’ personal data, including the owners’ home and work locations, all saved wifi passwords, calendar entries from the customers’ phones, call lists and address books from paired phones, and Netflix and other stored session cookies. This incident follows a report from white-hat hackers last year who discovered drivers’ personal information in the electronic systems of salvaged vehicles. Continue Reading Data Security: What Happens at the End of the Road?

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While the coronavirus has sent shockwaves through every service sector, the impact on the transportation industry has been especially severe. Automotive plants have shut down, new car sales have plummeted, and Uber and Lyft have reduced their workforce as social distancing has drastically reduced the demand for ride-hailing. In a world where stay-at-home orders are the norm, all forms of mobility have seen an abrupt decline and the entire transportation economy has suffered. Providers of shared mobility services like Uber, Zipcar, and Turo have struggled to sustain themselves in a world where consumers are ultra-conscious of human contact.

In a post-coronavirus world, mobility businesses will have economic incentives to deploy updated health practices to reassure their customers. But there are legal liabilities to consider as well. Lawsuits relating to the coronavirus outbreak have already begun and many more are expected. The threat of exposure-related lawsuits are of particular concern, especially as businesses reopen amidst uncertainty about the continued dangers of contracting the virus. Continue Reading Life After Coronavirus: New Challenges for New Mobility Services