Hands Off No More: Incident Reporting of Highly Automated Vehicles to DOT
The Situation: On June 29, 2021, the National Highway Traffic Safety Administration ("NHTSA") issued Standing General Order 2021-01 (the "Order"), concerning safety-related incidents involving vehicles operating on publicly accessible roads using Automated Driving Systems ("ADS") or Level 2 Advanced Driver Assistance Systems ("ADAS"). The Order directs 108 vehicle and equipment manufacturers and operators of ADS and ADAS vehicles to submit regular reports of the safety-related incidents ("Incident Reports").
The Result: NHTSA will disclose information contained within the Incident Reports to the public, use that information to conduct follow up requests, and when necessary, open defect investigations based on the information. Release of these reports could prompt further, more invasive inquiries into incidents and lead to publication of additional findings.
Looking Ahead: The Order marks a shift in U.S. government policy towards a more hands on, safety-focused approach to regulating highly automated vehicles. Industry stakeholders should (i) take notice and act accordingly to comply with the new Order; (ii) prepare for the enactment of additional federal laws and regulations; and (iii) evaluate potential liability considerations associated with the disclosure of data contained in these reports.
With its June 29 Order, NHTSA aims to ensure prototype and finished vehicles and equipment "are free of defects that pose an unreasonable risk to motor vehicle safety, or are recalled if such a safety defect is identified." Accordingly, NHTSA seeks to use the mandatory Incident Reports to collect information concerning potential safety defects, to conduct follow ups on crashes where necessary, and to potentially open defect investigations. Key aspects of the Order are highlighted here.
The Order targets 108 vehicle and equipment manufacturers and operators of ADS and ADAS vehicles, including all major domestic and multinational manufacturers of vehicles and vehicle equipment.
Incident Reports & Deadlines
Affected parties must submit the following Incident Reports for vehicle crashes (a) on a "publicly accessible road" in the United States, including its territories; and (b) where ADS or ADAS was engaged "at any time during" the 30-second period immediately before the crash through its conclusion.
Specified Crashes with ADS or ADAS: Due one day after notice of the incident, and an updated report due ten days after notice of the incident, when an incident involves one of the following:
- Any individual being transported to a hospital for medical treatment;
- A fatality;
- A vehicle tow-away;
- An air bag deployment; or
- A vulnerable road user (e.g. pedestrian).
Crashes Involving ADS Vehicle: Due on the 15th day of the month after the month in which notice of an incident involving an ADS vehicle.
Updated Incident Reports: Due on the 15th day of the month after notice of "any material new or materially different information about [an] incident is received."
Confirmation of Nothing to Report: Due on the 15th day of each month "confirming the lack of any reportable information."
The Incident Report form ("Form") is in the Order and on the NHTSA Manufacturer Recalls Portal (MAP). Affected parties must electronically submit an Incident Report via MAP. NHTSA must authorize a MAP account before it is used, and, therefore, affected parties should promptly establish a MAP account. Instructions on how to create a MAP account and submit an Incident Report are outlined in Appendix A of the Order.
Confidential Business Information
Affected parties may claim information in an Incident Report contains confidential business information ("CBI"). The Order identifies three areas on the Form, denoted by a box labeled "CBI," where an affected party may request NHTSA treat the solicited information as CBI: (1) "ADAS/ADS VERSION"; (2) "WAS VEHICLE WITHIN ITS ODD AT THE TIME OF THE INCIDENT?"; and (3) "NARRATIVE." Instructions on how to make a valid CBI claim are outlined in Appendix B of the Order.
"Fail[ing] to respond timely, fully, or truthfully" to the Order may result in either, or both,
- Civil penalties of up to $22,992 per violation per day, with a total maximum penalty of $114,954,525 for a related series of violations; or
- A "referral to the United States Department of Justice for a civil action to compel" compliance with the Order.
The reporting period begins 10 days after service of the Order. Thus, affected parties served on June 29, 2021, must begin reporting incidents of which they receive notice on July 9, 2021. These reporting obligations are effective until June 29, 2024.
Past NHTSA Orders
The issuance of a standing general order by NHTSA, though uncommon for the HAV industry, is not unprecedented. For example, NHTSA issued Standing General Order 2015-01, directing 25 vehicle manufacturers to file reports concerning inflator rupture incidents within one day of receiving notice of an incident due to its investigation and oversight of rupturing air bag inflators. Three weeks later, NHTSA issued a clarification and superseding order, Standing General Order 2015-01A, to amend the report filing deadline from one day to five days of receiving notice of an incident. Automakers are also likely familiar with other NHTSA mandated reporting, including 49 C.F.R. § 579, which requires certain manufactures to notify NHTSA regarding safety defects and recalls. In fact, the Order is clear that the new reporting requirements "are in addition to any reporting obligations applicable to you."
Affected parties may engage counsel to assist in developing a compliance process that effectively balances key priorities—safeguarding CBI, complying with non-incident reporting requirements, and establishing a process and team to execute when incident reporting is necessary. Further, affected parties may refer to 49 C.F.R. § 512, with attention to the five claims of confidentiality outlined in 49 C.F.R. § 512.8(c), for guidance on information that NHTSA should treat as CBI in the Incident Report. Finally, affected parties should consider avenues for objecting to the onerous and vague nature of the new requirements and the lack of time to prepare to comply.
Three Key Takeaways
- This Order represents a significant regulatory shift in the U.S. from a hands off, innovation-focused approach to more hands on, safety-focused oversight of ADS and ADAS technology by the federal government.
- Counsel should be engaged to (i) immediately establish a compliance process that discloses necessary information but also protects CBI, and (ii) recommend potential options for seeking clarification of reportable incidents and less onerous obligations.
- Affected parties should act promptly to mitigate the risk of potential product liability claims arising from the mandated disclosures of data in the Incident Reports.
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