NHTSA Final Rule Updates Safety Standards for HAVs

March 25, 2022 Commentary

In Short

The Situation: On March 10, 2022, the National Highway Traffic Safety Administration ("NHTSA") issued a Final Rule amending the Federal Motor Vehicle Safety Standards ("FMVSS") to account for vehicles equipped with automated driving systems ("ADS"). The Final Rule is the U.S. government's second major act in regulating highly automated vehicles ("HAVs") in the past year, following the NHTSA Standing General Order 2021-01 ("Order").

The Result: The Final Rule updates the FMVSS to resolve certain ambiguities that have arisen in applying the standards to vehicles without traditional manual controls while maintaining the existing regulatory text wherever possible. The Final Rule is limited to the crashworthiness standards (200-Series). It provides a unified set of regulatory text applicable to vehicles with and without ADS functionality.

Looking Ahead: The Final Rule reflects the acceleration of the U.S. government toward a more hands-on, safety-focused approach to regulating HAVs. Industry stakeholders should: (i) assess whether products meet the definition of "ADS" as defined in the Final Rule and likely future federal laws and regulations; (ii) evaluate the extent to which compliance testing aligns with the Final Rule; and (iii) determine whether product designs must be reimagined to comply with current HAV regulations.

The Final Rule maintains the occupant protection performance required by the 200-Series FMVSS. It alters FMVSS definitions to accommodate emerging ADS technology and clarifies for manufacturers the application of particular FMVSS to certain vehicles. Important components of the Final Rule are highlighted here.

Effective Date

The Final Rule is effective on September 6, 2022 (180 days after publication), and permits compliance before the effective date.

Scope

NHTSA specifies the required safety standards for domestic and imported motor vehicles that are manufactured on or after the applicable standard takes effect. The Final Rule regulates two types of ADS vehicles:

Conventional seating (i.e., forward-facing front seating positions) configured vehicles; and
Occupant-less vehicles.

The Final Rule takes into account certain "dual-mode" ADS vehicles, "a type of ADS-equipped vehicle designed for both driverless operation and operation by a conventional driver for complete trips." Manufacturers of dual-mode ADS vehicles with stowing capabilities for driving controls must certify compliance with all applicable FMVSS requirements in both modes.

NHTSA noted further research is needed regarding passenger vehicles with unconventional seating arrangements. The Final Rule does not address potential vehicle-to-vehicle compatibility issues related to occupant-less vehicles.

Amendments

NHTSA amended regulatory wording, through modification and adoption of definitions, and clarified the application of certain FMVSS to ADS-equipped vehicles. The most applicable to ADS-equipped vehicles are:

No. 203, Impact protection for the driver from the steering control system
No. 204, Steering control rearward displacement
No. 207, Seating systems
No. 208, Occupant crash protection
No. 214, Side impact protection
No. 220, School bus rollover protection
No. 226, Ejection countermeasure readiness telltales
No. 226, Ejection mitigation

Comments Incorporated into Final Rule

NHTSA received nearly 50 comments on the draft Final Rule from industry stakeholders, including manufacturers, advocacy groups, insurers, states, and the general public. Most commentators supported the March 2020 notice of proposed rulemaking, while some raised concerns about NHTSA's approach to ADS regulation and the premature nature of this rule.

Based on comments, NHTSA took the following actions:

Modified, relocated, and/or added certain terms and definitions in Section 571.3 of the regulatory text, as follows:

"Driver air bag" means the air bag installed for the protection of the occupant of the driver's designated seating position (new definition of existing term).
"Driver dummy" means the test dummy positions in the driver's designated seating position (new definition of existing term).
"Driver's designated seating position" means a designated seating position providing immediate access to manually operated driving controls. As used in this part, the terms "driver's seating position" and "driver's seat" shall have the same meaning as "driver's designated seating position" (new definition of existing term).
"Manually operated driving controls" means a system of controls that: (i) are used by an occupant for real-time, sustained, manual manipulation of the motor vehicle's heading (steering) and/or speed (accelerator and brake); and (ii) are positioned such that they can be used by an occupant, regardless of whether the occupant is actively using the system to manipulate the vehicle's motion (new term).
"Outboard designated seating position"means a designated seating position where a longitudinal vertical plane tangent to the outboard side of the seat cushion is less than 12 inches from the innermost point on the inside surface of the vehicle at a height between the design H-point and the shoulder reference point (as shown in figure 1 of FMVSS No. 210) and longitudinally between the front and rear edges of the seat cushion. As used in this part, the terms "outboard seating position" and "outboard seat" shall have the same meaning as "outboard designated seating position" (modification of existing term).
"Row" means a set of one or more seats whose seat outlines do not overlap with the seat outline of any other seats, when all seats are adjusted to their rearmost normal riding or driving positions, when viewed from the side (relocation of existing term).
"Steering control system" means the manually operated driving control(s) used to control the vehicle heading and its associated trim hardware, including any portion of a steering column assembly that provides energy absorption upon impact. As used in this part, the term "steering wheel" and "steering control" shall have the same meaning as "steering control system" (relocation and modification of existing term).

Decided to forego adoption of a vehicle motion suppression requirement for ADS vehicles when the occupant of the driver's seat is classified by the air bag system as a child and the ADS is in control of the driving task;
Eliminated text that would have changed the front row seat compartmentalization occupant protection requirements for large school buses in ways not intended by NHTSA;
Modified FMVSS No. 208 to provide more clarity in the protections required for inboard seating positions in the front row of ADS vehicles;
Modified FMVSS Nos. 212, Windshield mounting, and 219, Windshield zone intrusion, to make clear that these standards exclude occupant-less vehicles; and
Decided to forego modification to the FMVSS No. 226, which sets forth requirements for the ejection mitigation countermeasure readiness indicator.

Below is a high-level breakdown of the most significant proposed changes in the draft rule, comments submitted concerning those changes, and whether NHTSA incorporated those comments in the Final Rule.

Proposed Change	Comment(s)	Agency Response and Final Rule
Driver's designated seating position, manually operated driving controls (previously "steering control system")	For definition of "driver's designated seating position," exclude nonconventional controls and reference controls that are permanently attached to the vehicle in a fixed location. Consider situations where manual controls may be removable, where they may be present but are "locked" or rendered inoperative, or where the vehicle may be operated remotely. Clarify how joystick-type controls would fit into proposed definitional structure.	Considered comments but did not revise two proposed definitions. Proposed definitions incorporated fully into final rule.
Steering wheel to steering control	Support for the proposal. Concerns related to potential dangers for noncircular steering controls. Concern that the term "steering control rim" implied a circular control.	Considered comments but did not revise proposed change. Proposed changes incorporated fully into final rule.
Row and seat outline	Definition of "outline" should be moved to part 571.3 because the definition of "row" uses this term.	Agency agreed. Final rule incorporated this change.
Driver's seat	Request that change to definition of "shuttle bus" be made for all vehicles, not just vehicles without driving controls, using the same language. Proposed change may result in practical design and configuration changes to shuttle buses.	Considered comments but did not revise proposed changes. Proposed changes incorporated fully into final rule.
Dummy placement in bench seats	Exclude vehicles that include fixed or deployable human-accessible primary or backup (potentially deployable on demand or need) controls. Ensure change will not result in unrealistic dummy positions for all relevant dummy sizes before making its proposed change.	Considered comments but did not revise proposed changes. Proposed changes incorporated fully into final rule.
Driver's side and passenger side	Potential implications for vehicles with doors/seating or optional manual controls normally associated with the driver's position located on the right side of the vehicle. Conduct additional study on whether this option would result in the same performance outcome.	Considered comments but did not revise proposed changes (noting that the scope of the rule includes only conventional, as opposed to unconventional, seating arrangements). Proposed changes incorporated fully into final rule.
Dual-mode certification	"Expects" language is unclear, NHTSA should modify regulatory text to ensure expectation is met. Clarify applicability of FMVSS to dual-mode vehicles as they are likely to be some of the first ADS-equipped vehicles on the road.	Reviewed text to ensure wording not in terms of "expectations" but in clear terms of requirements. Proposed changes otherwise incorporated fully into final rule (noting that if a left front seat has both a driver configuration and a passenger configuration, the Agency may choose either configuration for compliance testing, or test both configurations).
Parking brake and transmission position	Update parking brake status in compliance testing where it may not reflect real-world scenarios. NHTSA should remain flexible in compliance testing in general.	Considered comments but did not revise proposed changes. Proposed changes incorporated fully into final rule.
Occupant-less vehicles generally	Reservations about how the approach could affect crash compatibility and other safety matters. Changes to standards should apply to trucks with a GVWR greater than 4,536 kg (10,000 lbs). Equipment designed to protect occupants in traditional vehicles will do nothing but create potential safety hazards in the event of a crash or if that equipment malfunctions. Applying occupant protection standards to occupant-less vehicles could degrade safety by adding weight and rigidity, which may increase the risk to occupants of other vehicles. Concern over possible degradation to the safety of vulnerable road users (pedestrians, bicyclists, etc.) if occupant-less vehicles are excluded. Potential for crash compatibility concerns stemming from potential loss of energy absorption in a crash involving an occupant-less vehicle.	Considered comments and agreed to amend FMVSS Nos. 212 and 219 to clarify nonapplicability to occupant-less vehicles. Final rule excluding occupant-less trucks from FMVSS occupant protection requirements will specify application to "trucks designed to carry at least one person," which would include occupants in wheelchair securements.
FMVSS No. 205, glazing materials	Vulnerable road users might be placed at risk if occupant-less vehicles are excluded from meeting FMVSS No. 205. If manufacturers of occupant-less vehicles were not required to meet occupant protection requirements, they could concentrate on protection of other road users. Change would not address standard in its entirety, and transmissibility/visibility aspects of the standard would need to be revisited in the future.	Final rule adopts revisions to FMVSS No. 205 that apply the standard only to vehicles with occupants (amended so as not to require a windshield in an occupant-less vehicle to meet that standard due to an absence of a safety need for the glazing).
FMVSS No. 212, windshield mounting, and 219, windshield zone intrusion	No safety need to apply FMVSS Nos. 212 and 219 to occupant-less vehicles given installed countermeasures protect occupants.	Likewise, there is no safety need for occupant-less vehicles to retain a windshield to protect against injury from penetrating objects or ejection (FMVSS No. 212) or from windshield intrusion (FMVSS No. 219). Final rule amended to exclude trucks not designed to carry at least one person (occupant-less vehicles).
FMVSS No. 208, occupant crash protection	Crash compatibility should not be the Agency's initial foray into drafting standards for occupant-less vehicles. Occupant protection requirements should not apply to a clearly marked "occasional use seat." Remove the exception from lockability requirements in No. 208 for seats without manually operated driving controls or with stowable controls in the left front seat.	Considered comments and made minor clarifying changes in response. Final rule adopts provision relating to advanced air bag requirements, telltale requirements, and other requirements with minor clarifying changes. These clarifying changes, as well as editorial corrections made to the text of FMVSS No. 208, are described in detail in Section VI of the Final Rule.

Preemption

NHTSA concluded that no additional consultation with states, local governments, or their representatives was mandated beyond the rulemaking process because the rulemaking would not have sufficient federalism implications. NHTSA does not foresee any likelihood of state tort law conflicting with the Final Rule and does not have a basis currently for concluding that such a conflict exists.

From Incident Reporting to Safety Standards

Within the past year, NHTSA has taken considerable action in directly monitoring the industry. The Order compelled manufacturers of ADS and vehicles equipped with advanced driver-assistance systems to submit monthly incident reports—and in certain situations a single-day report—concerning crashes involving their vehicles. The Order's purpose is to ensure these vehicles are defect-free or determine if they are subject to recall.

Because the Order is still in effect, the Final Rule will likely affect manufacturers' compliance with the Order. NHTSA may begin to review incident reports to determine whether an ADS vehicle satisfies the FMVSS. If it does not, NHTSA may request further reporting that could request disclosure of confidential business information.

Three Key Takeaways

The Final Rule updates existing regulations to prepare for emerging ADS-equipped vehicles and will likely serve as a model for updating other existing regulations concerning motor vehicles.
Industry stakeholders should be prepared for further U.S. government oversight to steer the direction of innovation and safety in vehicles involving autonomous or automated technologies.
Increased federal action demonstrates the need to develop a proactive legal strategy to navigate this ever-changing regulatory landscape and ensure compliance in this space.

Insights by Jones Day should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request permission to reprint or reuse any of our Insights, please use our “Contact Us” form, which can be found on our website at www.jonesday.com. This Insight is not intended to create, and neither publication nor receipt of it constitutes, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.

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The Regulatory Fast Lane: Final Rule Updates Federal Safety Standards for Highly Automated Vehicles

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