Dykema PPT.pdf

THE “CONNECTED VEHICLE” –REGULATORY AND LIABILITY ISSUESITS AMERICADECEMBER 14, 2011Paul LaurenzaWashington, D.C.California | Illinois | Michigan | North Carolina | Texas | Washington, D.C.www.dykema.com

Introduction“Connected Vehicle”• A system of real-time communications –vehicle-to-vehicle (V2V), vehicle-toinfrastructure(V2I), and vehicle-to-mobile(V2M) – collectively, V2X – to enhancevehicle safety, mobility, and travelerconvenience, including commercialapplications.• Previously known as Vehicle InfrastructureIntegration (VII), then IntelliDrive1

Introduction (Cont’d)Key questions:• What is the potential impact of regulation on thesubstance and/or timing of connected vehicletechnology (CVT) development or deployment?• What are key issues for policymakers andindustry?DYKEMA White Paper (Nov. 2010),www.connectedvehicle.orgUSDOT Research and Innovative TechnologyAdministration (RITA) (www.its.gov)2

Introduction (Cont’d)USDOT (NHTSA) Vehicle-to-VehicleSafety Application Research Plan (Oct.2011):• Does V2V meet a safety need?• Is V2V practicable technologically andeconomically?• Does V2V have objectively measurablecompliance?• Will V2V be accepted by drivers?• Will V2V be effective?V2V intended to enhance/expand uponcurrent/planned in-vehicle sensor safetythrough inter-vehicle communications3

Introduction (Cont’d)Assumption• Safety, privacy, and security aspects of CVTwould be subject to regulationReality• Implementation = Market forces + industryinnovation + government regulation– Major safety technologies were availableand in limited use prior to government safetyregulation (e.g., Electronic Stability Control)4

Overview of U.S. Safety RegulationFederal• Primarily USDOT function: NHTSA; FMCSA;FHWA– NHTSA – Promulgates Federal Motor VehicleSafety Standards (FMVSS) and otherregulations by rulemaking (public notice andcomment)– FMVSS apply only to new vehicles/equipment (OE), with limited exceptions;aftermarket equipment and accessories notcovered– FMVSS – performance, not design; selfcertification;manufacture/importation/sale ofnon-complying vehicle/equipment prohibited;also, dealers, etc. cannot install anyequipment that defeats an FMVSS5requirement

Overview – Federal Regulation(Cont’d)• FMCSA – Incorporation of NHTSA safetyregulation plus specialized equipmentregulations for commercial vehicles andoperator requirements– Unlike NHTSA and passenger vehicles,FMCSA may regulate operation of vehiclesthrough commercial driver regulations (e.g.,hours of operation, substance abuse)– E.g., cell phone restriction rule; videodisplay prohibition– FMCSA could follow different regulatorytrack with commercial vehicles6

StateGenerally, NHTSA/FMCSA safetyregulations preempt any conflicting stateregulation• States may issue supplemental regulationsif not in conflict with federal standards• State regulation mainly focused on vehicleuse (e.g., operator licensing andrestrictions, safety inspections, vehicleregistration)– State law may impact use of aftermarketdevices (e.g., state anti-distraction laws,state privacy laws)7

“VII” Illustrative Use CasesV2V• Emergency brake warnings• Forward collision avoidance warning• Lane change warningV2I• Traffic signal violation warning• Curve speed warning• Approaching emergency vehicle warning• Tolling (commercial cases)8

“VII” Primary Safety Applications“Day One” cases (VII Working Group 2005)• Of 17 original “Day One” V2V/V2Iapplications, 6 were vehicle/highway safetyrelated;8 were trafficinformation/management; 3 were commercial(electronic payments)• Focus was DSRC; safety/non-safetyuses/applications have evolved over time• Various potential VII safety applications nowincorporated in some form in selected currentvehicle models via in-vehicle sensor systems– E.g., lane (blind spot) warnings; forwardcollision avoidance warnings9

Current USDOT CVT Status:V2V is lead safety applicationNHTSA V2V rulemaking decision point –2013• New cars, trucks, buses• DSRC only– Future technologies must be “backward”compatible with DSRC• Unless legislatively mandated time frame,rulemaking period and compliancephase-in are indefinite– USDOT rulemakings typically 2-3 years10

Backover AvoidanceLegislative mandate – SAFETEA-LU requiresNHTSA report to Congress on vehicle backoveravoidance technology (NHTSA Report Nov.2006); Cameron Gulbransen Kids TransportationSafety Act of 2007• Law required NHTSA within 12 months to beginrulemaking to amend FMVSS 111 (rearviewmirrors) to expand required rearward field of viewfor all vehicles less than 10,000 GVWR– Allows (1) different requirements for differentvehicles; and (2) different technologies – mirrors,sensors, cameras, etc.– NHTSA to determine compliance phase-in, withfull compliance within 48 months after final ruleissues; phase-in period may be specific to vehiclecategories11

Backover Avoidance (Cont’d)NHTSA Federal Register Notice – Mar. 4, 2009• Advance Notice of Proposed Rulemaking(ANPRM)• NHTSA solicits comment on “wide variety ofmeans to address the problem”NHTSA FR Notice of Proposed Rule – Dec. 7,2010• Requires rear imaging systems (camera and videodisplay)• Phase-in starting Sept. 2012 to full complianceSept. 2014Issue: Enabling vehicle/driver to “see” nonvisuallybeyond vehicle/vehicle surface. Sameissue raised with other collision-warning/avoidance situations (lane change, forward12collision)

Backover Avoidance (Cont’d)Key regulatory points of backoveravoidance effort:• Regulatory action required by Congresswithin fixed time frame• Agency to proceed via normal rulemakingprocess• Does not require specific technology ormethod• Recognizes need for phase-in, but setsfull compliance period• New vehicles/original equipment only13

Challenges for CVT Safety RegulationNo closely analogous motor vehicle regulatorymodel for cooperative vehicle safety systems• Safety benefits require “connecting” all makesand models with each other and (possibly)infrastructure (depending on applications)Which uses/applications to require or otherwiseregulate? How will regulatory scheme addressexpansion for other safety applications?• How will availability of in-vehicle safetysystems (e.g., lane change, forward collisionwarnings/crash avoidance systems) impactCVT safety analysis; may affect CVTregulatory cost-benefit analysis14

Regulatory Challenges (Cont’d)Safety standards generally address newvehicles and equipment, not aftermarket• Exceptions: E.g., child safety seats – mustmeet FMVSS requirements• Certification methods?CVT should not increase driver distraction, driveroverreaction response; partial knowledge basefrom existing vehicle controls/displays and newerwarning technologies (e.g., lane change). Howmuch to leave to owner instructions/warnings?Consistency with existing FMVSS (e.g.,FMVSS 101 – Controls and displays)15

Regulatory Challenges (Cont’d)Security/Reliability• Accuracy, integrity of devices, network,and informationPrivacy• VII Privacy Policies Framework (2007)– Not law enforcement or national security– Safety information – anonymous only– Personally identifiable information (PII)consensual and protected (e.g., remotevehicle diagnostics, tolling, parkingpayments, insurer data)• Federalize privacy requirements as inproposed 2010 MVSA EDR provisions?16

NHTSA Vehicle SafetyRulemaking/Research Priority Plan- 2011-2013 (Mar. 2011)Connected Vehicles – Large Benefit –Rulemaking decision 2013Distraction - Large Benefit –Visual manualdistraction guidelines 2011Forward Collision Warning/Crash Avoidance -Large Benefit – Rulemaking decision 2011Lane Departure Prevention - Other SignificantProject – Identify effective advanced safetytechnologies 201117

Other Transportation (Non-MotorVehicle) Regulatory Models?Maritime (Coast Guard)• Vessels required to have AutomaticIdentification System (AIS)– Autonomous, continuous exchangeof navigation information, ship-toship/ship-to-shore,on vessel type,position, speed, course, etc.– Based on international standards andprotocol– Focus is maritime safety and security18

Rail (Federal Railroad Administration)Positive Train Control (PTC) systems – train-toinfrastructurecollision/derailment avoidanceLengthy private/public history:• Various efforts and federal recommendations(NTSB, FRA) in 1980’s• 1994 – FRA report to Congress for PTC actionplan; $40 MM funding for PTC development,testing, pilot deployment• 1999 – PTC Working Group defines core PTCfunctions• 2004 – FRA report to Congress – costs tooexcessive to warrant “immediate regulatorymandate for widespread PTC implementation”19

Rail – (Cont’d)• 2005 – FRA issues rule for technologyneutralperformance standard for automatictrain control; railroads continue efforts todevelop PTC systems on their lines andinteroperability• Oct. 2008 – Congress passes Rail SafetyAct, requiring mandatory, acceleratedinstallation of approved PTC on certainpassenger and Class I freight lines by 2015• Jan. 2010 – FRA issues final rule for PTCdeployment; supplemental rulemakingongoing• Various rail pilot projects underway todevelop information and experience to assistin meeting 2015 deployment date20

Liability Issues – Private Sector(E.g., Vehicle/Equipment Suppliers)Private sector claims• Generally governed by state law; varywidely – claims, defenses, evidentiaryrules differ• Strict liability – relies on existence ofdefect• Negligence – exercise of due care• Failure to warn – may be strict liability ornegligence• Breach of implied warranty (fitness,merchantability)21

Liability Issues – Private Sector(Cont’d)Key policy/legal questions:• Adequacy of existing laws to addresspotential failures?• Guidance from existing cases of warningsystem failures?– Motor vehicles, aviation, rail/transit,maritime• Protections based on governmentallinkage (e.g., immunities, indemnification,limitations of actions/remedies, etc.)?22

Liability Issues – Private Sector(Cont’d)• Existing technologies/claims/defenses maybe instructive– Failure to install (e.g., air bags, ABS, ESC,TIPS)– Installation/placement– Equipment failure– Equipment/operator interaction (failure toinstruct/warn)• Current experience base– Advanced warning technology on somenewer models (lane change, forwardcollision avoidance, etc.)– Case law developments, insurance claims23experience

Liability Issues – Public SectorPublic sector claims• Causes of action, theories of liabilitygenerally the same as with private sectorentities• Analysis differs because of sovereigntybasedimmunities – Federal Tort ClaimsAct and state analogs24

Liability Issues – Public Sector(Cont’d)Public sector (Cont’d)• Federal Tort Claims Act (“FTCA”)– Government waives immunity except for“discretionary functions”– Waiver allows suits under state’s tort law(but no strict liability)– “Discretionary function” – conduct (a)involving element of judgment or choice,and (b) based on public policyconsiderations25

Liability Issues – Public Sector(Cont’d)• Federal Tort Claims Act (“FTCA”) (Cont’d)– “Discretionary function” exception protectswide range of governmental conduct (e.g.,planning, designing, choices amongalternatives, etc.)– Does not protect conduct in conflict withstatute, regulations, policies– May not apply where government takesdiscretionary action, but later actsnegligently– “a morass of conflicting cases....”All states use some form of discretionaryfunction approach; varies widely by state26

The ChallengeThank You!27