Tesla Autopilot probe may be beginning of tougher NHTSA scrutiny

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Editor's note: This story is part of a special report on advanced driver-assist systems running in the Nov. 15 edition.

WASHINGTON — U.S. auto safety regulators could be laying the groundwork for closer scrutiny of advanced driver-assistance systems after years of forgoing a regulatory route for these Level 2 automated functions, vehicle safety and technology experts say.

NHTSA — amid an ongoing investigation into Tesla's Autopilot system after a series of crashes involving the electric vehicle maker's models and emergency vehicles — has begun piecing together a potentially more active and assertive approach to examining the safety and efficacy of driver-assist technologies offered by Tesla and other major automakers.

The agency has not yet issued specific regulations or performance standards for such systems, but actions by NHTSA in light of the investigation may signal a sea change, the experts told Automotive News.

Since opening the formal safety probe in August, the agency has requested substantial amounts of data on advanced driver-assistance systems from other major automakers to aid their investigation into the 12 Tesla crashes that resulted in 17 injuries and one death.

NHTSA also has requested information from Tesla on its Full Self-Driving beta testing program and asked whether the automaker intends to recall vehicles that received over-the-air updates to Autopilot in September — after the investigation was opened — to better detect flashing emergency-vehicle lights in low-light conditions.

"Could they be on the verge of making some recommendations — whether they be voluntary compliance standards or whether they be new or amended Federal Motor Vehicle Safety Standards? Anything's possible," said Brian Thompson, a member of law firm Wilson Elser's product liability, prevention and government compliance and transportation practices in San Francisco.

"But the increased notoriety of accidents involving ADAS and involving consumers' overestimation of the technology's capabilities certainly is going to put pressure on NHTSA to take action," he added.

Thompson said the agency's latest round of "data demands," at a minimum, is sending a message to the big players in autonomous and driver-assist technology that "when it comes to safety, we're not just going to take your word for it."

President Joe Biden's nomination last month of Steven Cliff, NHTSA's interim chief, to lead the agency as its permanent administrator and the appointment of Missy Cummings, a Duke University professor, to join NHTSA temporarily as a senior adviser for safety could be turning points.

NHTSA analyzes data it receives from the industry both in terms of the Tesla investigation and the agency's June order requiring automakers to report crashes involving vehicles equipped with advanced driver-assistance or automated driving systems. Cummings' expertise in understanding interactions between a driver and the vehicle's partially or fully automated system will be essential to their development and regulation, vehicle safety experts said.

"You don't hire Missy Cummings unless you're serious about doing something with that data," said Philip Koopman, a Carnegie Mellon University professor who has been working in the autonomous-vehicle safety field for more than two decades.

"Her job is to evaluate the data and see if there's a problem. … The answer might be yes, and the answer might be no," Koopman added. "It's great to see NHTSA both getting the data but also staffing up to be able to do something useful with the data."

The agency's approach to advanced vehicle technologies, such as driver-assist systems, "prioritizes safety across multiple areas including data collection and analysis, research, rule-making and enforcement," a NHTSA spokesperson said in a statement to Automotive News. "As these technologies have been developed, NHTSA has collected data and conducted research, developed test procedures and measured their effectiveness, which are all necessary requirements before a safety standard can be developed."

NHTSA, which updates its regulatory agenda twice a year, is gearing up to issue a final rule on crashworthiness regulations for vehicles equipped with automated driving systems that don't have driver controls.

Next year, the agency is expected to issue a notice seeking comment on a proposal to mandate automatic emergency braking that can also detect pedestrians on all new light vehicles.

Meanwhile, the agency continues to develop its planned changes to the New Car Assessment Program — a consumer-facing evaluation program for new vehicles — and expects to seek public comment on the proposal "in the near future," the spokesperson said. The proposal could include testing and a ratings system for more driver-assist technologies.

David Friedman, a former acting administrator at NHTSA who now is vice president of advocacy at Consumer Reports, said the agency has taken "good, positive first steps, but we definitely need to see more to know whether or not the sheriff is really in town."

As NHTSA gets a better grip on advanced driver-assistance systems — whether that's uncovering potential defects or trends of misuse — Sam Abuelsamid said the agency, at the least, should move toward issuing performance standards.

"If there's one thing we've learned, it's that you cannot rely on manufacturers to self-certify that these systems are safe," said Abuelsamid, principal research analyst at Guidehouse Insights.

He pointed to performance requirements for most other systems in a vehicle, such as brakes and lighting. Advanced driver-assistance "is a safety system," he said. "And we should have a performance threshold."

While changing federal vehicle regulations can take many years, David Zipper, a visiting fellow at the Harvard Kennedy School, said NHTSA can move faster than that to improve system safety by developing performance standards with input from the private sector and government and then incorporating those standards into the New Car Assessment Program.

"If consumers demand certain features because they want that five-star car, then automakers will respond," Zipper said. "You can end up with ADAS developing in a particular way much faster than you would if you went through the onerous and laborious process of altering FMVSS."

For David Zuby, chief research officer at the Insurance Institute of Highway Safety, while the agency's "more aggressive stance" is promising, he cautioned it's still too early to say what will actually come of it.

"Regulation is effective in that it results in all the vehicles under the regulation meeting some kind of minimum requirement," Zuby said. "But it's not time efficient. It's not a good way to try to solve an emerging or a sudden, big problem."

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