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December 21, 2016

Vehicle Safety in a Connected World—NHTSA's Proposed Rulemaking on V2V Technology and OEM Liability

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Last week, NHTSA issued a Notice of Proposed Rulemaking (NPRM) on vehicle-to-vehicle (V2V) communication technology, which follows the release of the much anticipated Federal Automated Vehicles Policy, and its Cybersecurity Best Practices for Modern Vehicles. These three documents in conjunction present the future of automotive safety regulation in the United States. 

NHTSA has made its position clear—connected, secure vehicles with automated driving technologies are the future of improved automotive safety. In particular, NHTSA expects OEMs to develop vehicles that communicate with other vehicles on the roadway, collect data about the surrounding environment to avoid accidents, and to continually update the vehicle electronics through over-the-air updates. And, by the way, all of this must be done using appropriate methods of cybersecurity protection. In its public statements, NHTSA anticipates that these new vehicle technologies could reduce up to 80% of motor vehicle accidents and save thousands of lives per year. 

The following presents a high-level overview of the V2V NPRM, and an initial analysis on what the future of automotive safety regulation means for OEM liability.

At its core, the NPRM envisions a future where automakers are required "to include V2V technologies in all new light-duty vehicles" and a standardized messaging system "requiring V2V devices to 'speak the same language.'" Every V2V-equipped vehicle would collect and transmit data on vehicle speed, heading, and brake status to other V2V vehicles—communicating at distances up to 300 meters.[1] If the NPRM is adopted, all V2V vehicles would communicate multiple times per second with other V2V vehicles, present warnings to the driver about potential hazards detected through V2V communications, and provide V2V data to crash mitigation technologies like pre-collision braking.[2] 

The NPRM is the culmination of several years of research and consultation with OEMs and other stakeholders in the automotive technology sector to prove out and develop standards for V2V technology. At the heart of these efforts is the belief that V2V technology, which allows vehicles to use dedicated short-range communications to exchange information to warn drivers about dangerous situations, has the potential to revolutionize motor vehicle safety by mitigating the severity of accidents, or in some cases avoiding collisions altogether. Specifically, NHTSA stated that once fully-deployed, research suggests that V2V communication technology could potentially avoid or mitigate 80% of unimpaired crashes, and potentially reduce 400,000 to 600,000 crashes saving 780 to 1,080 lives each year.

One notable aspect of the NPRM is that it has incorporated NHTSA’s priorities in several other areas, including cybersecurity and autonomous vehicle technology. NHTSA made clear that cybersecurity is a high priority for V2V communication technology, and that V2V devices must be able to detect and avoid misbehavior, and should misbehavior occur, reporting to a central authority will be required. NHTSA has also recognized that V2V communication technology will enhance the reliability of autonomous vehicle systems, and it specifically requested comment “on the interplay between V2V and autonomous technologies.” The V2V NPRM signals another step by NHTSA to put the safety of drivers into the “hands” of their vehicles and by extension, the OEMs. NHTSA is progressively taking the position that these new technologies should be designed to maximize driver safety and to account for and prevent human error. Moreover, V2V devices are not optional under the proposed rule. The NPRM envisions the technology as standard equipment in all new vehicles in order to accelerate fleet-wide adoption. By the very nature of its interdependence, V2V technology depends on implementation by all motor vehicles on the road.

The NPRM sets out an aggressive timeline for mandating the introduction of V2V technology into all new light-duty vehicles (passenger cars and trucks). NHTSA proposed that should a final rule be issued in 2019, the phase-in period would begin in 2021, and vehicles subject to the rule would be required to comply by 2023. The NPRM will be open for public comment for 90 days.

How Do These Three NHTSA Actions Impact OEM Liability?
While it is still too early to know exactly how V2V technologies and automated vehicle technologies will be regulated by NHTSA rulemaking, there are clear signals for potential liabilities that OEMs will face. The Bowman and Brooke Motor Vehicle Group understands these three documents as continuing support by NHTSA for the notion that automotive safety will be evaluated beyond the individual vehicle environment. Now, for the first time, NHTSA is focused on the vehicle's interaction with other vehicles (and likely soon pedestrians and infrastructure). This new paradigm of automotive safety shifts greater responsibility onto OEMs.

This shift—from the human driver to the vehicle’s automated systems and V2V capability—has the potential to significantly change liability apportionment in motor vehicle accidents. Liability that was traditionally attributed to human drivers (i.e. automotive negligence and product liability suits) could be increasingly shared or even replaced by liability that focuses on the performance of the vehicle’s autonomous or V2V communication systems. It also presents unique questions of liability when an accident occurs between a vehicle equipped with V2V communication or autonomous technology, and a vehicle without any such capability.

There are other potential areas for concern as well. First, V2V technologies, in some shape or form, will be on new vehicles within the next decade. Vehicles are going to collect and receive massive amounts of data. This data will improve crash avoidance technology performance and will provide drivers with additional information about potential hazards. The OEM will be responsible for either providing data to the driver in a user-accessible manner or making the choice to fully automate the use of collected data. These OEM choices may create the potential for criticisms at the user interface level and of automated driving systems.

Second, with NHTSA’s emphasis on adoption of automated vehicle technologies, particularly crash mitigation and avoidance features, there is potential for gaps as these two technologies evolve together. For example, NHTSA and the industry have committed to fully implementing automated pre-collision braking by 2022. But in the interim, there is potential for litigation involving drivers of V2V-equipped vehicles that identify an impending crash, but crash avoidance technologies are not yet fully implemented. 

Third, for some OEMs, vehicle software updates are already implemented via secure over-the-air transmission. As this type of “internet of things” practice evolves, more OEMs will become responsible for cybersecure transmission systems and registration networks that ensure all registered owners receive updates. Making the challenge even greater, these new software update interfaces must be simple enough for all vehicle owners to use. Under this new over-the-air software update model, new questions arise about post-sale standards of care for OEMs.  Was the update timely? Was it secure? Were all registered vehicles reached? And was customer data protected?

The Bowman and Brooke Motor Vehicle Group is committed to helping our clients successfully navigate this new legal and rapidly developing regulatory environment. We will continue to provide updates on the rulemaking status of the NPRM, related rulemaking from NHTSA, and potential changes in liability going forward.

[1] V2V communications are in addition to vehicle only sensors like radar, lidar, cameras and other proximity sensing technology. 

[2] The NPRM does not mandate vehicle to infrastructure (V2I) or vehicle to pedestrian (V2P) communication, but does foresee these technologies going forward.


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