Overview: In a sweeping new order issued on June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) is now requiring companies involved in the development and deployment of advanced driver assistance systems (ADAS) and automated driving systems (ADS) to report detailed information about crashes and "alleged" incidents to the agency on an ongoing basis. A list of more than 100 manufacturers and operators subject to NHTSA's new "Standing General Order" will have less than 10 days to prepare for a mandate that obligates these entities, upon receiving notice of a crash or incident from any source, to notify the agency in as little as a single day, and to provide ongoing reporting every month, regardless of whether or not a crash occurred, without guarantees that proprietary business information will be treated as confidential.
Summary: On June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) issued Standing General Order 2021-01 (General Order), which would require manufacturers and operators of vehicles equipped with automated driving systems (ADS) and advanced driver assistance systems (ADAS) to report certain crashes occurring when the ADS or ADAS is engaged. The General Order defines a "crash" as any physical impact between a vehicle and another road user or property that "results or allegedly results" in any property damage, injury, or fatality, and includes crashes in which a vehicle contributes or allegedly contributes to another vehicle's impact with another road user or property.
There are two primary categories of crashes that NHTSA is requiring to be reported. First, the General Order requires manufacturers and operators of both ADAS and ADS to submit an incident report within one calendar day for crashes resulting in: (1) hospitalization; (2) fatality; (3) vehicle tow-away; (4) air bag deployment; or (5) involvement of a vulnerable road user. Upon filing a crash report within the one-day window, the entity has 10 days to supplement the initial report with additional information about the crash.
Second, the General Order requires manufacturers and operators of ADS-equipped vehicles to submit, on a monthly basis, Incident Reports for any crashes that occur on a "publicly accessible road" and for which the ADS was engaged within 30 seconds of the crash. There are no additional limiting criteria for this second category of crashes, making its applicability extremely broad.
In the absence of any new or updated Incident Reports, the General Order requires a manufacturer or operator to submit an Incident Report confirming the lack of reportable information on the 15th calendar day of each month, beginning the calendar month after service with the General Order.
Reports submitted in response to the General Order are required to be provided to NHTSA in electronic format through the Manufacturer Recalls Portal (MAP). Entities required to submit reports under the General Order are directed to create a MAP account at https://map.safercar.gov/mportal/signuphome. To submit a report to NHTSA under this General Order through the MAP, reporting entities can access the MAP landing page at https://map.safercar.gov/mportal/signin.
With certain exceptions, information submitted in an incident report must be made "widely available" to the public. The General Order permits manufacturers or operators to claim three exceptions to the public disclosure of information submitted in an incident report if NHTSA determines that such information is confidential. The exceptions available, if "appropriate and appropriately supported," include: (1) the version of ADAS/ADS with which a vehicle is equipped; (2) whether the vehicle was within its operational design domain; and (3) the narrative description of the crash.
The General Order provides for stiff penalties for noncompliance. Failure to comply could result in a referral to the U.S. Department of Justice for civil action or civil penalties of up to $22,992 per day, up to a maximum penalty of $114,954,525.
Entities that are subject to the General Order will need to set up a reporting protocol on short notice or risk facing a NHTSA investigation of possible noncompliance. While more remains to be seen on the details of the General Order and how it will be carried out and enforced, the message that NHTSA sent is clear: the agency is looking closely at ADAS and AV technology developers and operators, and will be studying the crash reporting data to inform further regulatory actions.
If you have any questions about the General Order or how it affects your business, Venable LLP can help. Please contact the Venable team for more information.