NHTSA to Release NPRM on Crashworthiness Standards for Vehicles with Automated Driving Systems
- The National Highway Traffic Safety Administration (NHTSA) on March 17, 2020, released a preliminary copy of a Notice of Proposed Rulemaking (NPRM) on much anticipated revisions to the Federal Motor Vehicle Safety Standards (FMVSS) for occupant protection for vehicles with Automated Driving Systems (ADS).
- The NPRM, among other topics, addresses FMVSS revisions to remove or alter references to a "driver" for ADS-equipped vehicles without manually operated driver controls or in which the controls may be stowed; treat all outboard front seats without access to manually operated driving controls as front passenger seats; and clarify whether standards apply to a vehicle designed solely for carrying objects, i.e., without human occupants.
- Interested parties will be able to comment on the NPRM for 60 days following publication in the Federal Register.
The National Highway Traffic Safety Administration (NHTSA) on March 17, 2020, released a preliminary copy of a Notice of Proposed Rulemaking (NPRM) on much anticipated standards for Occupant Protection for Automated Driving Systems (ADS Occupant Protection).1 The NPRM addresses revisions to the Federal Motor Vehicle Safety Standards2 (FMVSS) for vehicles with ADS "that lack the traditional manual controls necessary for human drivers, but that are otherwise traditional vehicles with typical seating configurations." The ADS Occupant Protection NPRM is limited to FMVSS crashworthiness standards, the 200-series regulations at 49 C.F.R. § 571.201–226, and certain definitions in or moved to 49 C.F.R. § 571.3.3 Interested parties will be able to comment on the NPRM for 60 days following publication in the Federal Register.
The ADS Occupant Protection NPRM does not address the crash avoidance standards (100 series) and post-crash survivability standards (300 series). On Jan. 18, 2018, NHTSA published a Request for Comments (RFC), which sought to identify regulatory barriers in existing FMVSS to the testing and compliance verification of ADS-equipped vehicles.4 On May 29, 2019, the agency published an Advance NPRM (ANPRM) concerning the 100-series FMVSS.5 The agency has considered comments received in response to those publications in formulating the ADS Occupant Protection NPRM.
NHTSA proposes several definitional changes to remove or alter references to the "driver" of an ADS-equipped car and clarify whether standards apply to a vehicle designed solely for carrying objects, i.e., without human occupants. The agency may still develop additional future FMVSS applicable to occupantless vehicles. The proposals address vehicles without a steering wheel or column, without a designated driver's seat, treatment of air bags and air bag suppression systems applicable to child occupants, and other minor edits and explanatory text.
NHTSA made several assumptions in evaluating modifications to the 200-series FMVSS. First, the agency assumed that initial ADS-equipped vehicles will have "conventional seating" configurations, i.e., "forward facing front seating positions."6 NHTSA emphasized that it is not signaling an intent to limit ADS compliance to conventional seating configurations, but that regulations addressed to nonconventional arrangements will be tackled in the future, following ongoing research by the agency, in coordination with industry and academia.7 Next, NHTSA limited its consideration of occupantless vehicles to its proposal "that current crashworthiness requirements intended to protect human occupants should not apply to such vehicles."8 The agency is still considering promulgation of new FMVSS specifically addressed to occupantless vehicles. In addition, NHTSA only provides limited consideration of the subject matter surrounding "telltales and warnings." That subject has implications beyond the 200-series FMVSS and NHTSA is not yet prepared to address the entire scope of the issue.9
NHTSA noted that until is promulgates FMVSS that "do not explicitly or implicitly require manual controls, [the agency] expects that manufacturers of ADS-equipped vehicles without traditional manual controls will seek exemptions from those FMVSS requirements."10 Such exemption requests may be made in accordance with NHTSA regulations at 49 C.F.R. Part 555. NHTSA expects the number of exemptions required will be reduced as FMVSS are modified.11
NHTSA stated its guiding principles in the proposed regulatory modifications are to: 1) maintain current performance requirements; 2) reduce unnecessary regulatory barriers and uncertainty for manufacturers; 3) maintain the current regulatory text structure; and 4) remain technology neutral.
Regarding the term "Driver," as defined in in 49 C.F.R. § 571.3, NHTSA reiterated the position taken in a 2016 letter from the NHTSA chief counsel, which stated:
NHTSA will interpret "driver" … as referring to the SDS [Self-Driving System], and not to any of the vehicle occupants. . . . If no human occupant of the vehicle can actually drive the vehicle, it is more reasonable to identify the "driver" as whatever (as opposed to whoever) is doing the driving.12
At this time, NHTSA is not revising the regulatory definition of "driver." Instead, the agency proposes to maintain the current definition and augment the definition with "supporting or clarifying definitions to indicate when the FMVSS is referring to a human driver or an ADS."13
NHTSA also proposes defining the following terms:
- Driver air bag means the air bag installed for the protection of the occupant of the driver's designated seating position.
- Driver dummy means the test dummy positioned in the driver's designated seating position.
- Driver's designated seating position means a designated seating position providing immediate access to manually-operated driving controls. As used in this part, the terms "driver's seating position" and "driver's seat" shall have the same meaning as "driver's designated seating position."
- Passenger seating position means any designated seating position other than the driver's designated seating position. As used in this part, the term "passenger seat" shall have the same meaning as "passenger seating position." As used in this part, "passenger seating position" means a driver's designated seating position with stowed manual controls. …
- Manually-operated driving controls means a system of controls:
- (1) That are used by an occupant for real-time, sustained, manual manipulation of the motor vehicle's heading (steering) and/or speed (accelerator and brake); and
- (2) That are positioned such that they can be used by an occupant, regardless of whether the occupant is actively using the system to manipulate the vehicle's motion. …
- Steering control system means the manually-operated driving control(s) used to control the vehicle heading and its associated trim hardware, including any portion of a steering column assembly that provides energy absorption upon impact. As used in this part, the term "steering wheel" and "steering control" shall have the same meaning as "steering control system." 14
Proposed Regulatory Modifications
NHTSA addressed the FMVSS starting with No. 208, which has the most proposed changes, and which are applicable to other FMVSS, then proceeded to address the rest of the above-listed FMVSS in order. The table below summarizes the proposed modifications and requests for comment.
FMVSS No. and Subject Matter
Descriptions and Proposed Modification(s)
208, Occupant crash protection.
Addresses types and locations of seat belts and air bags, plus permissible forces and accelerations on anthropomorphic dummies in testing. It also makes reference to designated seating positions (DSP) in a way that renders occupantless vehicles non-compliant.
NHTSA proposes applying front passenger protection test requirements to all front outboard passengers without access to manually-operated driving controls, by changing all references to "passenger" dummies to "front outboard passenger" dummy.15
NHTSA seeks comment on whether airbag and shoulder-harness-equipped seatbelts should be required for inboard (center) seating positions in ADS-equipped light vehicles (unloaded weight less than 5,500 lb. and GVWR less than 8,500 lb.). Currently, center seats only require a lap belt.16
NHTSA seeks comment on whether it is necessary to apply passenger (child and adult) advanced air bag requirements to both front outboard seats in an ADS-equipped vehicle without manual controls because both of those seats would be available for child occupants. NHTSA proposes adding "any front outboard" to the word "passenger" in relevant sections.17
NHTSA seeks comment on requiring each front outboard passenger seat with a suppression-based advanced air bag system to have a unique telltale, so that occupants know which air bag is suppressed. The agency proposes referencing "telltales for each front outboard passenger seat" in the standard.18
ADS-equipped vehicles may still include manually-operated driver controls (dual mode vehicles). NHTSA seeks comment on whether ADS-equipped vehicles that have manual controls should not be capable of motion if a child is detected in the driver's seat.19 Testing would include verification that motion is suppressed "when a 12-month-old CRABI dummy is placed in the driver's seating position and the vehicle is in an operational state that does not require a driver."20
NHTSA proposes language to define the seating position of passenger dummies without reference to a driver dummy or driver's seating position for ADS-equipped vehicles without manual-operated driving controls.21
NHTSA proposes that all front passenger seats meet the protection requirements that must currently be met by the driver's seat. NHTSA requests comment on requiring all front seats to have seat belts, requiring the right front outboard seat to have a seat belt, at least one front passenger seat to have seatbelts, and the use of compartmentalization as an ejection barrier.23
NHTSA proposes, where applicable, to replace "driver's side" with "left side," and "driver" with "front left outboard," and seeks comment on this approach.24
201, Occupant protection in interior impact.
Sets out performance requirements to protect occupants from injury because of impact with interior surfaces. NHTSA proposes amendments to permit the certification of vehicles without a driver's seat or steering controls.
Referencing "the most rearward designated seating position in the forward row" instead of "A-pillar;" "B-pillar;" and "pillar."27
Modification to make clear references to "steering control" do not apply to vehicles without a steering control.28
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.29
203, Impact protection for the driver from the steering control system; and
204, Steering control rearward displacement.
NHTSA proposes modifying the Application sections to state that the standards do not apply to vehicles without steering controls.
NHTSA proposes to move the definition of "steering control system" in FMVSS No. 203 to 49 C.F.R. § 571.3.
205, Glazing materials.
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.30
206, Door locks and door retention components.
NHTSA proposes modifying the definitions for "side front door" and "side rear door," which use the "driver's seat back" as a spatial frame of reference, so that they also apply to vehicles without a driver's seat, and replace the reference to the "driver's side" of the vehicle with "left side."31
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.32
207, Seating systems.
NHTSA proposes to modify the requirement for a driver's seat to only apply to vehicles with manually operated driving controls.33
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.34
214, Side impact protection.
NHTSA proposes clarifying:
the test dummy position on bench seats, by using the seating reference point of the DSP where the dummy is located; and
that "driver's side" now means the vehicle left side for spatial reference purposes.35
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.36
216a, Roof crush resistance, Upgraded standard.
NHTSA proposes to modify testing setup procedures to reference the "left side" and "right side" of the vehicle instead of the "driver's side" and "passenger's side."37
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.38
225, Child restraint anchorage systems.
For a shuttle bus: NHTSA proposes amending the definition of "shuttle bus" to use the front row as the frame of reference rather than the driver's seat, when there is no driver's seat.39
226, Ejection Mitigation.
NHTSA proposes substituting "driver's compartment" with "occupant compartment," and seeks comment on whether this would have an impact on applicability to non-ADS-equipped vehicles.40
NHTSA proposes changing "driver door sill" to "left front door sill."41
For trucks: NHTSA proposes amending the standard to only apply to "trucks with at least one designated seating position," which excludes applicability to occupantless vehicles.42
Regulatory Text Related to Parking Brake and Transmission Position (applicable to multiple standards).
In vehicles without driver-accessible parking brakes or transmission selectors, the method to properly prepare the vehicle for testing may not be immediately obvious.
NHTSA expects that manufacturers will provide the means for the agency to determine the necessary brake and transmission status, if only for compliance testing purposes, and seeks comment on this approach.43
For more information on the NHTSA ADS Occupant Protection NPRM or assistance with preparing comments on the rulemaking, contact the author or another member of Holland & Knight's Autonomous Transportation Team.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.
1 NHTSA, Draft of NPRM on Occupant Protection for Automated Driving Systems, Docket No. NHTSA-2020-0014, RIN 2127-AM06 (May 16, 2020) (hereinafter ADS Occupant Protection NPRM).
2 49 C.F.R. §§571.101–571.500; individual safety standards are referred to by decimal portion of the regulation number; for example, FMVSS No. 101 is at 49 C.F.R. §571.101.
3 NHTSA proposes modifications to the following FMVSS, and seeks comment thereon.
- FMVSS No. 201; Occupant protection in interior impact.
- FMVSS No. 203; Impact protection for the driver from the steering control system.
- FMVSS No. 204; Steering control rearward displacement.
- FMVSS No. 205, Glazing materials.
- FMVSS No. 206; Door locks and door retention components.
- FMVSS No. 207; Seating systems.
- FMVSS No. 208; Occupant crash protection.
- FMVSS No. 214; Side impact protection.
- FMVSS No. 216a; Roof crush resistance; Upgraded standard.
- FMVSS No. 225; Child restraint anchorage systems.
- FMVSS No. 226; Ejection Mitigation.
4 83 FR 2607, 2607-2614 (Jan. 18, 2018).
5 84 FR 24433, 24433–449 (May 28, 2019).
6 ADS Occupant Protection NPRM at 28.
7 Id. at 29.
9 Id. at 30.
10 Id. at 15.
11 See, e.g., 84 FR 10182, 10182–91 (March 19, 2019).
12 ADS Occupant Protection NPRM at 29.
13 Id. at 30.
14 Id. at 39–40 (emphasis in original).
15 Id. at 45–47.
16 Id. at 47–48.
17 Id. at 48.
18 Id. at 49–50.
19 Id. at 51.
20 Id. at 52.
21 Id. at 56–57.
22 Id. at 54.
23 Id. at 54–55.
24 Id. at 58.
25 Id. at 44–45.
26 Id. at 61.
28 Id. at 62.
29 Id. at 60–61.
30 Id. at 63–64. This is consistent with NHTSA's recent grant of an exemption to FMVSS 205 glazing requirements for an occupantless, low speed delivery vehicle. See Grant of Temporary Exemption for a Low-Speed Vehicle with an Automated Driving System, 85 FR 7826, 7826–42 (Feb. 11, 2020).
31 ADS Occupant Protection NPRM at 64.
32 Id. at 64.
33 Id. at 64–65.
34 Id. at 64.
35 Id. at 65.
36 Id. at 65.
37 Id. at 66.
38 Id. at 66.
39 Id. at 66.
40 Id. at 67.
41 Id. at 67.
42 Id. at 67.
43 Id. at 68.