United States: NHTSA And Motor Vehicle Safety - 2022 Developments

The National Highway Traffic Safety Administration (NHTSA or the Agency), the nation's primary regulator of vehicle safety, will likely be increasingly active in 2022 as the Biden Administration's enforcement philosophy and priorities have come into finer focus over the past year. NHTSA has been leveraging regular, voluntary meetings with manufacturers both to learn more about emerging technologies and identify potential field issues involving the manufacturer's products in advance of a determination by the Agency to open a formal investigation. In addition to a broader flexing of its enforcement powers, NHTSA also has been aggressively using its information-gathering tools to inform its priorities. Notably, the Agency listed a full slate of rulemakings in the current (Fall 2021) U.S. Department of Transportation's Unified Regulatory Agenda. This full regulatory agenda will only be further expanded by several legislative mandates contained in the recently passed Infrastructure Investment and Jobs Act (2021 Infrastructure Act).

NHTSA's approach to enforcement under the Biden Administration.

Over the past year, NHTSA has taken a much more aggressive approach in using its information gathering powers and informal requests for information to identify and evaluate issues related to vehicle safety. This more aggressive approach is reflected in a number of Agency actions, including the Agency's expanded use of standing general orders, informal meetings with manufacturers, and information requests to peer manufacturers and suppliers to support ongoing investigations.

In 2015, as part of its air bag inflator investigation, NHTSA issued standing general orders to monitor field events. In 2021, NHTSA extended the use of standing general orders to monitor field events involving Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems (ADAS) under Standing General Order (SGO) 2021-01. Like prior standing general orders, SGO 2021-01 requires manufacturers to submit detailed information regarding field incidents on an ongoing basis. But unlike prior standing general orders, NHTSA did not initiate SGO 2021-01 in conjunction with an open investigation, and it extended the order to vehicle operators (non-manufacturers). In addition, the reporting requirements specifically seek details on crashes involving "vulnerable road users," which include pedestrians, persons traveling in wheelchairs, bicyclists, motorcyclists, and riders or occupants of other transportation vehicles that are not motor vehicles, such as all-terrain vehicles and tractors.

The order was issued to more than 100 manufacturers and operators and requires them to submit reports if they receive notice of certain crashes involving an ADS or Level 2 ADAS-equipped vehicle that occur on publicly accessible roads in the United States. NHTSA further requires the reporting entities to submit a "null report" for each month in which the entity did not otherwise report an incident to NHTSA. Underscoring the Biden Administration's support of this aggressive approach, the Agency sought and received "emergency" clearance from the Office of Information and Regulatory Affairs, part of the Office of Management and Budget, under the Paperwork Reduction Act, for this information collection.

The Agency has also continued requesting recurring, informal meetings with vehicle manufacturers and certain Tier 1 suppliers. In these meetings, personnel in NHTSA's Office of Defects Investigation discuss Vehicle Owner Questionnaires - complaints sent directly to the Agency - and issues under review within the manufacturers' safety offices.

Another trend is NHTSA's increased use of peer manufacturer and supplier information requests during formal defect investigations, especially in connection with investigations involving newer and emerging technologies.

In recent years, NHTSA has automated many of its tools for auditing the recall-related documents manufacturers are required to submit to the Agency. NHTSA has continued using these automated audits to check the completeness of recall files and to alert manufacturers when information is missing or deadlines have been missed. The Agency has begun to include alerts related to potentially missing information identified in its recall acknowledgment letters.

In terms of civil penalties, NHTSA negotiated a significant penalty with a vehicle manufacturer, as well as penalties against several registered importers during 2021. In August 2021, the Agency announced that it had negotiated a settlement with Piaggio for a total of $750,000 related to allegations of untimely recalls, quarterly recall reports, and submissions of manufacturer communications under 49 CFR 579.5. The violations reflect NHTSA's increased scrutiny of the timeliness of all filings made by a manufacturer.

The Agency also penalized five registered importers for importation and certification violations. Three of the registered importers had their registrations suspended for various violations of the regulations related to importing gray market vehicles. Another registered importer consented to a $500,000 civil penalty and had its registration suspended for 125 days. NHTSA held $300,000 of the penalty in abeyance; if the importer commits additional violations, the remaining penalty will become due and its registration will be revoked. A fifth registered importer entered a consent order, agreeing to a $30,000 civil penalty and a 150-day suspension. NHTSA is holding $20,000 of the civil penalty in abeyance for a year, which it will waive, if the importer has no additional violations during that time.

NHTSA has a full rulemaking schedule for 2022

As expected, the Biden Administration's focus on environmental issues led NHTSA to begin the process of amending the corporate average fuel economy standards. Also, NHTSA closed 2021 by finalizing NHTSA's proposal to repeal in full "The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program," published on September 27, 2019, in which NHTSA codified regulatory text and made additional pronouncements regarding the preemption of state and local laws related to fuel economy standards. The repeal marks a significant break from the prior administration.

On December 29, 2021, NHTSA published a final rule establishing FMVSS 227, Bus rollover structural integrity. The new safety standard applies to "over-the-road buses" and buses that have a gross vehicle weight rating (GVWR) greater than 26,000 pounds. The final rule fulfills the Congressional mandate from the Moving Ahead for Progress in the 21^st Century Act (MAP-21) of 2012. This long-overdue final rule may indicate that the Agency will prioritize finalizing some of the other rulemakings required by MAP-21 and the Fixing America's Surface Transportation (FAST) Act of 2015.

The Agency has also publicly announced an ambitious rulemaking agenda.  The Unified Regulatory Agenda for the U.S. Department of Transportation issued in the Fall of 2021 sets forth a slate of upcoming rulemakings for NHTSA, including:

• An Advanced Notice of Proposed Rulemaking (ANPRM) seeking public comments on modernizing FMVSS 108, Lamps, reflective devices, and associated equipment, to facilitate new designs and emerging technologies.
• An ANPRM seeking public comments on amending the rear visibility standards in FMVSS 111 to permit cameras to replace rearview mirrors.
• A Notice of Proposed Rulemaking (NPRM) amending the record retention requirements to reflect requirements in the FAST Act of 2015.
• An NPRM to amend Part 577, Defect and Noncompliance Notification, to permit electronic notification in addition to notice by first class mail, as allowed by MAP-21.
• An NPRM seeking comments on requiring automatic emergency braking (AEB).
• An NPRM to upgrade the motorcycle helmet requirements.
• An NPRM that would extend the electrolyte spillage requirements of FMVSS 305 to vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds or more.
• A final rule to upgrade the rear impact guard requirements for trailers and semitrailers.
• A final rule that addresses the crashworthiness regulations that may be necessary to facilitate the certification of new vehicle designs equipped without driver controls.

While several of these items were previously delayed, many of the target dates in this recently published regulatory agenda will fall during 2022. Notably, the recent passage of the Infrastructure Investment and Jobs Act of 2021 (Infrastructure Act) reflects Congress's intent to accelerate the completion of long-delayed rulemakings that continue to be reflected in the Agency's regulatory agenda.

The Infrastructure Investment and Jobs Act of 2021 includes provisions aimed at motor vehicle safety

On November 15, 2021, President Biden signed the Infrastructure Act into law. Many of the Infrastructure Act's provisions impose rulemaking mandates upon NHTSA, reflecting Congress's interest in proactively influencing NHTSA's enforcement and regulatory priorities. Most importantly, the Infrastructure Act provides new funding to the Agency through the Highway Trust Fund, which currently funds some of NHTSA's activities. It also provides grant funds for states to modernize their data collection systems to enable full electronic transfer of crash data to NHTSA and directs NHTSA to upgrade its systems to support states' efforts to modernize their data collection systems. The data collected through these grants comprise NHTSA's Fatal Accident Reporting System and the Crash Investigation Sampling System. As part of the funding, Congress directed NHTSA to revise the crash data elements it collects in order to distinguish "individual personal conveyance vehicles, such as electronic scooters and bicycles, from other vehicles involved in a crash" and to collect data elements "relating to vulnerable road user safety." Infrastructure Act § 24108(a), (c). The focus on vulnerable road users echoes NHTSA's requirements under Standing General Order 2021-01 requiring manufacturers to report incidents involving both automated technologies and vulnerable road users. Similarly, Congress provided additional funding in the Infrastructure Act to expand NHTSA's Crash Investigation Sampling System to collect data on "all crash types" and to add on-scene investigation protocols.

In addition to providing data to determine the number of fatal accidents on public roads, the data fields also require the reporting entity to provide information detailing certain attributes related to the reported crashes, such as whether the airbag deployed. Manufacturers should monitor this modernization process, as the Agency has spent the past decade developing additional data-analytics tools. These tools are part of a relational database to tie together the various data streams NHTSA receives (such as VIN deciphering information, early warning reports, responses to information requests and standing general orders, and recall data). The Agency intends to use analytics to identify and evaluate defect trends that may otherwise be missed. Moreover, portions of the Infrastructure Act may facilitate making more of this data publicly available.

The 2021 Infrastructure Act also includes the following specific directives to NHTSA:

• § 24111, Motorcycle Advisory Council, requires the U.S. DOT to establish the Motorcyclist Advisory Council to evaluate motorcycle safety, barrier and road design, and the potential implementation of intelligent transportation systems.
• § 24202, Recall Completion Reports, extends the quarterly recall completion reports in 49 CFR 573.7 from six consecutive quarters to eight consecutive quarters, and requires manufacturers to submit annual reports "for each of the three years beginning after the date of completion of the last quarter for which a quarterly report is submitted."
• § 24204, Seat Back Safety Standard, directs NHTSA to issue an advanced notice of proposed rulemaking within two years to update FMVSS 207, Seating systems.
• § 24205, Automatic shutoff, requires NHTSA to issue a final rule within two years requiring certain vehicles with keyless ignitions to be equipped with a system to automatically shut off the engine to avoid carbon monoxide poisoning.
• § 24208, Crash Avoidance Technology, directs NHTSA to promulgate crash avoidance safety standards that would require all passenger vehicles to be equipped with forward collision warning, automatic emergency braking (AEB), lane departure warning, and lane keeping assist systems. Congress did not put a deadline on these requirements.
• § 24209, Reduction of Driver Distraction, requires NHTSA to research and report to Congress regarding the installation and use of driver monitor systems to "minimize or eliminate" driver distraction, driver disengagement, "automation complacency" by drivers, and foreseeable misuse of ADAS technologies. Congress does not necessarily require NHTSA to promulgate rulemaking. If, based on the report, NHTSA determines that rulemaking is "necessary to ensure safety," it must promulgate rulemakings within two years of completing the report to Congress.
• § 24210, Rulemaking Report, requires NHTSA to report to Congress within 180 days on several rulemakings required by prior legislation, including the MAP-21 and FAST Act, as well as any rulemaking required by the Infrastructure Act.
• § 24212, Headlamps, requires NHTSA to finalize the Adaptive Driving Beam rule within two years.
• § 24213, New Car Assessment Program, requires NHTSA to finalize within one year the Agency's 2015 NPRM that proposed providing consumer information on several crash-avoidance technologies.
• § 24214, Hood and Bumper Standards, requires NHTSA to publish a notice for public comment regarding potential updates to hood and bumper standards that considers (1) advance crash-avoidance technologies, (2) technologies that would "reduce the number of injuries and fatalities suffered by pedestrians, bicyclists, and other vulnerable road users," and (3) potential harmonization with United Nations Economic Commission for Europe Regulation Number 24 (UNECE R24).
• § 24216, Early Warning Reporting (EWR), amends the EWR requirements by stating that manufacturers shall comply with any EWR requirements notwithstanding any order entered in a civil action restricting disclosure of information.
• § 24217, Improved Vehicle Safety Databases, requires NHTSA to improve public accessibility to publicly available information obtained by the Agency. Congress specifically directs NHTSA to ensure that the Agency make publicly available nonconfidential documents and materials relating to information created or obtained by the Agency "in a manner that is (A) timely; and (B) searchable in databases by any element that the Secretary [delegated to NHTSA] determines to be in the public interest."
• § 24220, Advance Impaired Driving Technology, requires NHTSA to issue a final rule requiring new passenger vehicles to be equipped with "advanced drunk and impaired driving prevention technologies" within two years.
• § 24222, Child Safety, directs NHTSA to issue a final rule within two years requiring all vehicles with a gross vehicle weight rating (GVWR) less than 10,000 pounds to be equipped with a rear-seat alert after deactivating the engine.

While many of these Congressional directives will require NHTSA to promulgate or finalize existing proposed rules, the requirement to provide two additional quarterly reports and three annual reports covering recall completion rates and the changes to the EWR statutory language have already gone into effect and do not require further rulemakings by NHTSA.

NHTSA's robust enforcement program and extensive regulatory agenda will certainly present challenges for the automotive industry throughout 2022. To reduce enforcement risk, manufacturers must ensure that their internal safety evaluation and reporting procedures are up-to-date and that key personnel are properly trained to identify and escalate potential safety defects and other potentially reportable events. These procedures should also include a process for confirming that all filings are timely and complete, and that amendments or updates to reports are timely submitted. Manufacturers should also have processes in place to monitor regulatory developments and, where appropriate, participate in the rulemaking process by submitting comments and/or engaging with their industry associations to ensure that the Agency's rulemakings reflect input from all stakeholders.

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