NHTSA Amends Standing General Order on Reporting ADS- and ADAS-Involved Crashes

The NHTSA recently amended its SGO regarding the reporting of certain crashes involving vehicles equipped with automated driving systems (ADS) or SAE Level 2 advanced driver assistance systems (ADAS). The second amended General Order, effective May 15, 2023, incorporates some changes that the industry originally sought and to which NHTSA had informally agreed, and also formalizes several aspects of the reporting process that were required in practice but not otherwise contained within the four-corners of the SGO.

Background

NHTSA originally issued the SGO in June 2021 to assess whether manufacturers of ADS and Level 2 ADAS systems, including prototype vehicles and equipment, comply with their statutory obligations to ensure their products are free from defects that pose unreasonable risks to motor vehicle safety. Before the SGO, NHTSA’s sources of timely crash notifications were limited and generally inconsistent across manufacturers and developers.

The SGO is intended to allow NHTSA to obtain prompt and transparent notifications of real-world crashes involving ADS and Level 2 ADAS vehicles. With this data, NHTSA’s stated intent is to respond to crashes that raise safety concerns about these technologies through further investigation and enforcement. The ADS industry initially raised concerns about the way that NHTSA was classifying some crashes and the potentially onerous nature of reporting minor incidents, particularly those that did not result in injury but resulted in the AV being towed for a variety of reasons, some having nothing to do with the severity of the crash. There were also initial delays in approval of the data collection by the Office of Management and Budget, as required by the Paperwork Reduction Act.

Using the collected data, NHTSA has encouraged several voluntary recalls of ADS equipment from ADS equipment manufacturers. There is ongoing debate among the industry over the applicability of existing regulations governing recalls when the relevant incident involves prototype equipment being operated by the manufacturer as part of testing and development.

Key Changes in the Second Amended General Order

• New five-day reporting obligation: The most significant change for ADS manufacturers and operators in the second amendment is the creation of a new five-day reporting obligation for crashes where the ADS is engaged within 30 seconds of the crash and the crash results in a tow-away or airbag deployment but does not involve a vulnerable road user (VRU) or require anyone to be transported to a hospital for medical treatment. Previously, these crashes were reportable within one day, in the same category as crashes involving fatalities, hospitalizations, or collisions with a VRU. This was a change the industry had sought early on in the process.
• Definition of “Engaged”: The second amended general order includes a new definition for when an ADS or ADAS system is “Engaged,” covering situations where an attempt to transfer control to the system was made within 30 seconds of the crash.
• Clarification on “Notice”: The second amended general order clarifies that “Notice” to the reporting entity does not include situations when the entity learns about a crash solely from another entity’s SGO reporting.
• Reporting requirements for manufacturers: The second amended general order clarifies that manufacturers subject to reporting requirements must report any crashes involving their vehicle or equipment, even if they are not directly responsible for the vehicle’s operation.
• Procedure for correcting errors: The second amended general order adds a procedure for correcting errors in prior reports.
• Monthly reporting requirements: The second amended general order clarifies that all subject entities must file a report every month, replacing the previous “Monthly-No Incidents” report that was filed in practice with a written requirement to file a “No New or Updated Incident Report.”

Conclusion:

The second amended SGO is a positive step forward for both NHTSA and the AV industry. It formalizes several obligations that had previously been understood to apply and, overall, enhances transparency and the ability to comply with reporting requirements. The separation of less serious crashes into a distinct five-day reporting category will provide much-needed context for anyone interested in analyzing the data NHTSA makes available to the public. Manufacturers and operators of ADS and ADAS equipment and vehicles must familiarize themselves with these changes and ensure their reporting processes are compliant with the updated requirements.

Ballard Spahr’s Product Liability and Mass Tort Group has substantial experience representing companies that make and sell products in a wide range of litigation and counseling matters, including the defense of class actions, as well as regulatory compliance. Please contact us for more information.

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