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January 08, 2021

Recent Developments

In November 2020, the National Highway Traffic and Safety Administration (NHTSA) requested public comments (by February 1, 2021) regarding the safety framework around automated driving systems (ADS). In this advance notice of proposed rulemaking, NHTSA recognizes the unique challenges and opportunities of ADS vehicles and looks to address aspects of safety, security, and privacy without hampering innovation. This framework could provide the basis for separate Federal Motor Vehicle Safety Standards (FMVSS) in ADS-equipped vehicles in the future. Key takeaways of the framework are as follows: 

  • “The framework would objectively define, assess, and manage the safety of ADS performance while ensuring the needed flexibility to enable further innovation. The Agency is seeking to draw upon existing Federal and non-Federal foundational efforts and tools in structuring the framework as ADS continue to develop.”
  • “At this stage, NHTSA believes there are four primary functions of the ADS that should be the focus of the Agency’s attention. First, how the ADS receives information about its environment through sensors (“sensing”). Second, how the ADS detects and categorizes other road users (vehicles, motorcyclists, pedestrians, etc.), infrastructure (traffic signs, signals, etc.), and conditions (weather events, road construction, etc.) (“perception”). Third, how the ADS analyzes the situation, plans the route it will take on the way to its intended destination, and makes decisions on how to respond appropriately to the road users, infrastructure, and conditions detected and categorized (“planning”). Fourth, how the ADS executes the driving functions necessary to carry out that plan (“control”) through interaction with other parts of the vehicle.”
  • “Eventually, non-regulatory aspects of the framework, combined with information learned from research and the continued development of ADS, could serve as the basis for development of FMVSS governing the competence of ADS.”
  • For more information:

In December 2020, NHTSA announced that 20 vehicle manufacturers committed to installing low-speed automatic emergency braking (AEB) in almost all new passenger vehicles by August 2023. This effort can increase automotive safety by preventing potential vehicle collisions.

  • The vehicle manufacturers involved are Audi, BMW, FCA, Ford, General Motors, Honda, Hyundai, Jaguar Land Rover, Kia, Maserati, Mazda, Mercedes-Benz, Mitsubishi, Nissan, Porsche, Subaru, Tesla, Toyota, Volkswagen and Volvo.
  • To date, 14 vehicle manufacturers already have vehicles equipped with AEB in 75% or more of their new passenger fleets.
  • “NHTSA estimates the agreement could make AEB standard on new cars three years faster than could be achieved through the regulatory process.”
  • For more information: NHTSA Announces 2020 Update on AEB Installation by 20 Automakers

Analysis

The implementation of autonomous vehicle technologies requires manufacturers to predetermine vehicle responses in adverse driving conditions, such as collision avoidance, which may involve moral and ethical dilemmas. For example, should a vehicle swerve away from an unexpected obstacle at the risk of colliding with another vehicle or bystander or let the collision occur, risking injury to its own vehicle occupants? Between 2016 and 2018, a study was conducted to identify moral preferences in such situations. Key findings included: 

  • “In June of 2016, the Media Lab launched a Web site that invited people from all over the world to play a game called Moral Machine. In the game, players are presented with a version of the trolley problem: a driverless car can either stay its course and hit what is in its path, or swerve and hit something else. Each round features a new version of the problem, with different obstacles and different groups of people to be killed or spared. In the next two years, more than two million people – from some two hundred countries and territories – participated in the study, logging more than forty million decisions. It is the largest study on moral preferences for machine intelligence ever conducted.”
  • “The paper on the [Moral Machine] project was published in Nature, in October, 2018, and the results offer an unlikely window into people’s values around the globe. On the whole, players showed little preference between action and inaction, which the scientists found surprising. But the players showed strong preferences for what kinds of people they hit. Those preferences were determined, in part, by where the players were from.”
  • “In 20 to 50 years, the majority of cars on the road will likely be driverless… In a future dominated by driverless cars, moral texture will erode away in favor of a rigid ethical framework. Let’s hope we’re on the right side of the algorithm."
  • For more information: A Study on Driverless-Car Ethics Offers a Troubling Look Into Our Values

Insights

Dykema offers commentary on certain legal implications and considerations regarding NHTSA’s recent request for public comment for ADS (noted above) and other advanced driver assistance systems (ADAS). Highlights from this analysis included: 

  • “The Advanced Notice of Proposed Rulemaking (ANPRM) gives some hints as to NHTSA’s thinking. It mentions its MPrISM safety metric, the 2018 RAND Corp. report on AV safety, NVIDIA’s “Safety Force Field,” Safety First for Automated Driving’s 2019 paper, and Intel’s Mobileye’s Responsibility Sensitive Safety paper as approaches it is monitoring. It also refers to ISO 26262, 21448 and UL 4600 as process standards that might be part of a framework, and NHTSA also hints at the idea of an “ADS competency evaluation” as part of NCAP.”
  • “The absence of regulatory guidance over ADAS technology presents challenges and opportunities for litigators. Without any applicable FMVSS, evidence of FMVSS compliance or non-compliance likely will not be available to litigants. That means that plaintiffs cannot argue that FMVSS non-compliance is evidence of defect, while on the other hand, potential non-defect presumptions available under certain states’ product liability laws for FMVSS compliance may not apply to claims concerning ADAS technology.”
  • For more information:

In light of the recent NHTSA request for public comment, the August 2019 the Governors Highway Safety Administration (GHSA) report about automated vehicles (AV) testing and deployment provides an opportunity to consider pathways forward based on feedback from the federal government, automotive and technology industries, criminal justice organizations, national safety groups, insurance companies and state highway safety offices (SHSO). The report outlined the following recommendations:

  • SHSO and GHSA:
    • “Promote advanced vehicle technologies – HAVs and ADASs – that promise to improve driving and reduce crashes.”
    • “Continue to address current behavioral safety problems, including impaired and distracted driving, safety belt use, and speeding, for the foreseeable future. It will be many years before AVs reduce these problems significantly.”
    • “Participate actively in developing a toolkit or library of AV information and messages agreed to by all stakeholders that can be used by GHSA, NHTSA, SHSOs, safety groups, the AV industry and AV dealers.”
  • SHSO:
    • “Understand how HAVs and ADASs fit into their behavioral safety mission.”
    • “Establish HAV testing and deployment as a priority area; encourage and promote HAV and ADAS testing and deployment.”
    • “Participate actively in leadership roles in state AV working groups.”
    • “Build partnerships with other state organizations, law enforcement, prosecutors and judges, the AV and insurance industries, and safety organizations to understand issues and concerns and to develop and implement sound AV policy and programs.”
    • “Serve as a trusted source of AV information for organizations in the state and for the public. Deliver AV information and messages to the public.”
    • “Consider assigning a SHSO staff member as a single point of contact on AV issues.”
  • Law enforcement, first responders, criminal justice:
    • “Establish HAV testing and deployment as a priority area.”
    • “Participate actively in state AV working groups.”
    • “Establish a single law enforcement point of contact for AV issues within the state.”
    • “Coordinate closely with all HAV testing and deployment in the state.”
    • “Establish policies and protocols for interacting with HAVs. Determine the training needed by patrol officers and first responders for dealing with HAVs; train officers and first responders as appropriate.”
    • “Provide appropriate AV information to prosecutors and judges who deal with traffic crashes.”
    • For more information: Automated Vehicle Safety Expert Panel: Engaging Drivers and Law Enforcement

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