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June 16, 2023

Stopping on a Dime: NHTSA proposal requires Automatic Emergency Braking and Pedestrian Automatic Emergency Braking for Light Vehicles

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On May 31, 2023, the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) announced a Notice of Proposed Rulemaking (NPRM) which would require automatic emergency braking (AEB) and pedestrian automatic emergency braking (PAEB) on new passenger vehicles and light trucks (a gross vehicle weight rating of 10,000 pounds or less).1 AEB and PAEB are advanced driver assistance systems (ADAS) that can automatically engage a vehicle’s brakes when the vehicle determines certain frontal collisions are imminent. 

Importantly, AEB and PAEB systems cannot and do not prevent all crashes, and they do not supplant the driver’s requirement to safely operate the vehicle. AEB and PAEB systems have limitations in detecting certain types of objects, have limitations when there is a large speed difference between the vehicle and other object (vehicle or pedestrian), and limitations in some environmental conditions. And appropriate introduction of AEB and PAEB systems requires ensuring that automatic braking occurs when appropriate and without creating additional risk of crashes (such as a rear-end collision into a braking vehicle). 

The 2022 Bipartisan Infrastructure Law mandated NHTSA create a rule establishing performance standards that required all passenger vehicles manufactured four years after the rule was implemented be equipped with AEB and PAEB systems. The announcement of the NPRM was therefore expected, and a proposed FMVSS on AEB/PAEB systems has been anticipated for years. 

Until the May 31 announcement, NHTSA had encouraged the introduction of AEB/PAEB and other ADAS features on new passenger vehicles through voluntary commitments by OEMs, through its Recommended Safety Technologies component of NCAP, and NCAP testing of forward collision warning and AEB systems. And in fact, nearly all new passenger vehicles sold in the United States in model year 2023 have AEB and PAEB systems that meet the current NHTSA performance standards which provide real-world benefits. 

What the NPRM proposes is a significantly expanded performance standard for AEB and PAEB systems and includes language that suggests AEB and PAEB should apply the brakes when any collision with a pedestrian or lead vehicle is “imminent.” As an example, NHTSA proposes that AEB should operate at all vehicle speeds above 6.2 mph and that automatic emergency braking should avoid all collisions up to speeds of 50 mph. The NPRM also includes NHTSA’s findings that expanding the AEB and PAEB performance standards will result in a significant reduction in collisions, injuries, and fatalities.

We expect to see plaintiffs reference the NPRM going forward in all products liability litigation alleging failure to equip AEB/PAEB systems and failure of AEB/PAEB systems to prevent or mitigate a given collision. We also expect plaintiffs will allege the NPRM creates consumer expectations for the performance of AEB and PAEB systems in vehicles on the road.

Bowman and Brooke’s automotive practice attorneys are ready to address these allegations and to put the NPRM in context during litigation. We have extensive experience defending and explaining the capabilities and limitations of AEB and PAEB systems in litigation across the country. We understand the engineering considerations OEMs must consider when introducing ADAS systems. We stand ready to address plaintiff’s claims about what AEB and PAEB systems could do in any given collision and to explain the benefits and design limitations of these systems. 


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