NHTSA recently issued a First Amended Standing General Order requiring electronic portal submission of crash incident data for automated and semi-autonomous vehicles. As of August 12, 2021, automated motor vehicle manufacturers, motor vehicle equipment manufacturers, and operators will be required to report and upload crash incident data within 24 hours to the NHTSA Incident Report Portal. The 24 hour incident crash reporting requirement is in effect for three years from the date of issuance of the Standing General Order (“SGO”), until June 29, 2024.

The First Amended Standing General Order supersedes but does not substantively change the requirements of NHTSA’s initial SGO, which NHTSA served on 108 major OEMs, robotics, electronics, AI, rideshare, and software companies on June 29, 2021. The SGO applies to manufacturers and operators of motor vehicle equipment and motor vehicles equipped with (i) SAE Level 2 advanced driver assistance systems (“ADAS”), which includes common safety features such as adaptive cruise control and lane-keeping assistance, and (ii) SAE Levels 3-5 automated driving systems (“ADS”) (conditional to full driving automation).

The First Amended SGO and SGO are early demonstrations of NHTSA’s more aggressive regulatory and enforcement oversight of automated and semi-autonomous vehicles under Biden administration leadership. For the first time, NHTSA has imposed reporting obligations solely through regulatory action rather than as a result of a Congressional mandate. The 24 hour timeline for reporting is also a swifter timeline than Part 573 safety defect and noncompliance reporting under the Motor Vehicle Safety Act, and the monthly reporting requirement (even in the absence of crash incident data), is a swifter timeline than quarterly early warning reporting requirements under the TREAD Act. NHTSA also determines through the Orders that ADS and ADAS constitute “motor vehicle equipment” subject to regulation under the Motor Vehicle Safety Act.

The SGO also provides three limited exceptions to public disclosure of the incident reports based on confidentiality claims under Part 512. The Order’s guidance signals a greater transparency approach to public safety information.

Who is Responsible for Reporting?

The SGO requires vehicle and equipment manufacturers and operators to report certain crashes that occur while the ADS or Level 2 ADAS is engaged, or immediately after it is in use, and to provide sufficient information for NHTSA to identify crashes warranting further follow-up. As with other reporting requirements, the SGO does not prioritize reports between manufacturers and other reporting entities. The SGO’s imposition of reporting requirements on operators as well as vehicle manufacturers, and its determination that ADS and Level 2 ADAS constitute “motor vehicle equipment” reflects a more expansive assertion of NHTSA authority over technology companies that supply automated systems to vehicle manufacturers.

Which Crashes Trigger Reporting?

Each incident that meets the following criteria requires submission of an incident report by a manufacturer and operator within one day of each entity learning of a crash, and an updated report within ten days:

  • The crash occurred on a publicly accessible road in the United States;
  • The ADS or ADAS was engaged at any time during the 30 seconds immediately prior to the crash through the conclusion of the crash; and
  • The crash results in a hospital-treated injury, a fatality, a vehicle tow-away, an air bag deployment, or involved a vulnerable road user (e.g., pedestrian, cyclist, etc.).

Additionally, every month, companies must report all other crashes of an ADS or Level 2 ADAS-equipped vehicle that involve injury or property damage. If no crashes occur in any given month, reporting entities must submit a monthly incident report confirming the lack of any reportable information.

What Information is Collected and Disseminated?

The initial reports must include information on the reporting entity, vehicle, incident (date, time, scene, and crash severity details), and post-crash activities and data availability. NHTSA plans to review the reports to identify crashes for further follow-up, including potential Special Crash Investigations or requests for further information, such as Event Data Recorder data. NHTSA may also open defect investigations, as warranted.

The Order preemptively identifies the limited scope of information to be afforded confidential treatment, including: (1) the version of the ADAS/ADS with which a vehicle is equipped; (2) whether the vehicle was within its operational design domain at the time of the incident; and (3) the defect narrative.

If you have any questions concerning the material discussed in this blog post, please contact the following members of our Connected and Autonomous Vehicles practice:

Sarah Wilson                                     +1 202 662 5397                    swilson@cov.com
Jennifer Johnson                              +1 202 662 5552                    jjohnson@cov.com
Rebecca Yergin                                 +1 202 662 5935                    ryergin@cov.com
Olivia Dworkin                                  +1 424 332 4817                    odworkin@cov.com
Nira Pandya                                       +1 650 632 4724                    npandya@cov.com

 

This post is a part of Covington’s CAV blog series, which covers CAV developments across the world. To access prior CAV blog posts and webinars and to learn more about our team and our work, please visit Covington’s CAV website.

This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the subjects mentioned herein.

Covington & Burling LLP, an international law firm, provides corporate, litigation and regulatory expertise to enable clients to achieve their goals. This communication is intended to bring relevant developments to our clients and other interested colleagues. Please send an email to unsubscribe@cov.com if you do not wish to receive future emails or electronic alerts.

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Photo of Jennifer Johnson Jennifer Johnson

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors…

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors, television companies, trade associations, and other entities on a wide range of media and technology matters. Jennifer has almost three decades of experience advising clients in the communications, media and technology sectors, and has held leadership roles in these practices for almost twenty years. On technology issues, she collaborates with Covington’s global, multi-disciplinary team to assist companies navigating the complex statutory and regulatory constructs surrounding this evolving area, including product counseling and technology transactions related to connected and autonomous vehicles, internet connected devices, artificial intelligence, smart ecosystems, and other IoT products and services. Jennifer serves on the Board of Editors of The Journal of Robotics, Artificial Intelligence & Law.

Jennifer assists clients in developing and pursuing strategic business and policy objectives before the Federal Communications Commission (FCC) and Congress and through transactions and other business arrangements. She regularly advises clients on FCC regulatory matters and advocates frequently before the FCC. Jennifer has extensive experience negotiating content acquisition and distribution agreements for media and technology companies, including program distribution agreements, network affiliation and other program rights agreements, and agreements providing for the aggregation and distribution of content on over-the-top app-based platforms. She also assists investment clients in structuring, evaluating, and pursuing potential investments in media and technology companies.

Photo of Sarah Wilson Sarah Wilson

Sarah Wilson is a litigation and investigations partner who chairs the firm’s market-leading Product Safety Practice Group. Her clients include the world’s largest global consumer and commercial products manufacturers across a range of industries, including consumer packaged goods, automotive vehicles and equipment, aviation…

Sarah Wilson is a litigation and investigations partner who chairs the firm’s market-leading Product Safety Practice Group. Her clients include the world’s largest global consumer and commercial products manufacturers across a range of industries, including consumer packaged goods, automotive vehicles and equipment, aviation, electronics, life sciences, and information technology. Sarah has successfully represented clients in the largest recalls and safety-related investigations in recent history, including airbags, fire extinguishers, single load liquid laundry packets, toxic chemicals in household products, lithium-ion battery-powered laptops, car seats, and electric bikes and scooters. Sarah assists clients in developing cutting edge recall policies, compliance program enhancements, and voluntary safety standards.

Prior to joining Covington, Sarah served in several high-ranking federal government positions, including as a federal judge on the U.S. Court of Federal Claims, as Senior and Associate Counsel to the President, and as a Deputy Assistant Attorney General and Trial Attorney in the Department of Justice.

Photo of Nira Pandya Nira Pandya

Nira Pandya is a member of the firm’s Technology and IP Transactions Practice Group in Boston.

With a broad practice that spans a variety of industries, Nira routinely advises clients with their most complex commercial transactions and strategic collaborations involving technology, intellectual property…

Nira Pandya is a member of the firm’s Technology and IP Transactions Practice Group in Boston.

With a broad practice that spans a variety of industries, Nira routinely advises clients with their most complex commercial transactions and strategic collaborations involving technology, intellectual property, and data, with a focus on issues around IP ownership and licensing, artificial intelligence, software development, and information technology services.

As a member of the firm’s Digital Health Initiative, Nira counsels pharmaceutical, medical device, healthcare, and technology clients on commercial and intellectual property considerations that arise in partnerships and collaborations at the intersection of life sciences and technology.

Nira leverages in-house experience gained during her secondment to a leading technology company, where she partnered with business clients and translated legal advice into practical solutions. Prior to joining the firm’s Technology and IP Transactions practice group, Nira advised private and public companies on mergers and acquisitions, joint ventures, strategic investments, and other corporate transactions.

Photo of Olivia Dworkin Olivia Dworkin

Olivia Dworkin minimizes regulatory and litigation risks for clients in the medical device, pharmaceutical, biotechnology, eCommerce, and digital health industries through strategic advice on complex FDA issues, helping to bring innovative products to market while ensuring regulatory compliance.

With a focus on cutting-edge…

Olivia Dworkin minimizes regulatory and litigation risks for clients in the medical device, pharmaceutical, biotechnology, eCommerce, and digital health industries through strategic advice on complex FDA issues, helping to bring innovative products to market while ensuring regulatory compliance.

With a focus on cutting-edge medical technologies and digital health products and services, Olivia regularly helps new and established companies navigate a variety of state and federal regulatory, legislative, and compliance matters throughout the total product lifecycle. She has experience counseling clients on the development, FDA regulatory classification, and commercialization of digital health tools, including clinical decision support software, mobile medical applications, general wellness products, medical device data systems, administrative support software, and products that incorporate artificial intelligence, machine learning, and other emerging technologies.

Olivia also assists clients in advocating for legislative and regulatory policies that will support innovation and the safe deployment of digital health tools, including by drafting comments on proposed legislation, frameworks, whitepapers, and guidance documents. Olivia keeps close to the evolving regulatory landscape and is a frequent contributor to Covington’s Digital Health blog. Her work also has been featured in the Journal of Robotics, Artificial Intelligence & Law, Law360, and the Michigan Journal of Law and Mobility.

Prior to joining Covington, Olivia was a fellow at the University of Michigan Veterans Legal Clinic, where she gained valuable experience as the lead attorney successfully representing clients at case evaluations, mediations, and motion hearings. At Michigan Law, Olivia served as Online Editor of the Michigan Journal of Gender and Law, president of the Trial Advocacy Society, and president of the Michigan Law Mock Trial Team. She excelled in national mock trial competitions, earning two Medals for Excellence in Advocacy from the American College of Trial Lawyers and being selected as one of the top sixteen advocates in the country for an elite, invitation-only mock trial tournament.