On March 10, 2022, Deputy NHTSA Administrator Steven Cliff signed a “first-of-its-kind” final rule revising occupant protection standards for automated vehicles. The rule “updates the occupant protection Federal Motor Vehicle Safety Standards [“FMVSS”] to account for vehicles that do not have traditional manual controls associated with a human driver because they are equipped with automated driving systems [“ADS”].” This is essentially NHTSA’s first attempt to address the effects of vehicle automation on crashworthiness systems.
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Adapting the Law to Autonomous Vehicles
Increasingly, sophisticated autonomous vehicles (AVs) use computers both for guidance purposes and for the collection and processing of data, including information whose collection and dissemination is controlled by generally applicable (or “legacy”) privacy and data security law.
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NHTSA Requires Reporting of Autonomous or Assisted-Driving Vehicle Crashes
On June 29, the National Highway Traffic Safety Administration (“NHTSA”) issued an order requiring autonomous vehicle and advance driver assistance systems manufacturers and operators to report serious crashes within a day of learning of them. The order applies specifically to manufacturers and operators of vehicles equipped with SAE Level 2 advanced driver assistance systems (ADAS) or SAE Levels 3-5 automated driving systems (ADS).
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SAE Updates J3016 Standard for Automated Driving Systems With More Clarity and New Terms and Definitions
On April 30, 2021, SAE International updated its “Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles,” labeled SAE J3016_202104. This updated version cancels and supersedes the June 2018 version, labeled SAE J3016_201806. Its basic framework remains intact with six levels of driving automation, ranging from no driving automation (Level 0) to full driving automation (Level 5).
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Proposed Amendment to Advance Self-Driving Cars is Postponed Amidst Rising Safety Concerns
As first reported by Reuters on April 22, Sens. Gary Peters (D-Mich.) and John Thune (R-S.D.) had recently released drafts of an amendment that would allow the National Highway Traffic Safety Administration (NHTSA) to exempt 15,000 self-driving vehicles per manufacturer from safety standards that were written for human drivers. Within three years, that figure would rise to 80,000, and after four years, manufacturers could ask NHTSA to increase exemptions beyond 80,000 vehicles. At this time, NHTSA only allows exemptions of up to 2,500 vehicles per manufacturer.
In a statement, Sen. Peters said the amendment would “ensure that the innovation and testing around autonomous vehicles can continue happening safely under the watchful eye of the Department of Transportation.” The Senators had planned to attach the amendment to “The AI Scholarship-for-Service Act,” a bill providing $100 billion for science and technology research and development with the aim of maintaining U.S. competitiveness with China.
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Hot Topics in Electric Vehicles: Battery Fires
The recent Tesla fire in Houston reportedly took four-plus hours to extinguish completely because of continued flareups. This highlights some of the challenges faced by auto manufacturers (and fire departments) as electric vehicles start to take over the roads, including unique issues related to lithium-ion fires. Dykema attorneys Deron Wade, Jeff Cox and Rebekah Hudgins recently presented a litigation update addressing: “How Going All Electric May Impact the Future of Fire Litigation” (PowerPoint Slides – starting on Slide 21). The first portion of the update addressed: “A Discussion of Jury Selection and Juror Attitudes in the Post-COVID World.”
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NHTSA Makes a U-Turn on AV Regulation in Latest Notice of Interpretation
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.
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Data Security: What Happens at the End of the Road?
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.
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Life After Coronavirus: New Challenges for New Mobility Services
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.
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Nuro, NHTSA, and the New Autonomous Vehicle Exemption Rules
Earlier this month, Nuro made automotive history when it became the first company to obtain a NHTSA exemption for a driverless vehicle, the R2. Nuro is a self-driving startup created by two former Google engineers. Their earlier version, the R1, is a small electric ‘van’ without a steering wheel or pedals and designed exclusively for delivery of goods rather than people.
Nuro has been testing the R1 vehicle on public roads in places like Scottsdale, AZ for several years. This vehicle is technically classified by federal regulations as a low speed vehicle (LSV) meaning it has a maximum speed of 25 mph and maximum weight of 3,000 lbs. As a low-speed vehicle, the R1 did not need to satisfy all of the FMVSS requirements for passenger cars and trucks (i.e. standards relating seatbelts, airbags, and steering). But it must still satisfy the minimum requirements of FMVSS 500 including front lights, rear view mirrors, and windshields. Therefore, since 2018, the Nuro R1 has been equipped with these safety features, despite having no human present in the vehicle. For its new R2 vehicles, Nuro requested three exemptions for their driverless delivery vehicle:
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