USDOT's National Roadway Safety Strategy for Making Vehicles, Drivers, and Roadways Safer

Technological innovations continue to transform the mobility and transportation industry, with growing global recognition that the future of transit is connected, autonomous, electric, and shared. The mobility industry has already made strides toward a more connected future:

• The race to introduce connected and automated vehicles (CAVs) represents a significant opportunity to improve safety in transit and reduce traffic fatalities inside and outside vehicles.
• Telecommunications companies are partnering with automotive original equipment manufacturers (OEMs) to provide connectivity needed to enable safety-critical systems in CAVs.
• OEMs are actively shifting resources to invest in an electric vehicle (EV) future and expand availability of higher-range EVs to consumers.
• Transportation network companies (TNCs) are partnering with OEMs to offer zero-emission rides; and the supply chain continues to evolve with connected fleets resulting in greater efficiency and personal delivery devices (PDDs) providing new options for last-mile deliveries.

Successful innovation in the mobility industry at the outset will require safer roadways where CAVs, EVs, TNCs, and PDDs operate. Further innovation for infrastructure and safety will require uniform adoption of connected technologies and related standards by public and private sectors, advocacy, and research communities.

I. National Roadway Safety Strategy

While technological developments have improved vehicle safety, traffic-related fatalities continue to increase.[1] The National Highway Traffic Safety Administration (NHTSA) released early estimates showing a record increase in roadway fatalities nationwide.[2] In January 2022, the United States Department of Transportation (USDOT) announced its National Roadway Safety Strategy (NRSS), providing concrete steps the department will take to address roadway fatalities and serious injuries. One of these steps is a suggested rulemaking to consider notification requirements for manufacturers when there is an incident involving Automated Driving Systems (ADS).[3] Another step is the release of a roadmap for a New Car Assessment Program (NCAP) with incremental updates over the next 10 years; this roadmap would emphasize vehicular safety features for pedestrian protection, including autonomous emergency braking (AEB) and lane-keeping assistance to benefit bicyclists and pedestrians and systems to detect and prevent impaired and distracted driving.[4] Earlier in 2022, NHTSA issued a request for comments about the proposed upgrades to the current NCAP. USDOT recently released an updated dashboard showing the status of departmental actions and progress on the NRSS.[5]

Similarly, the Bipartisan Infrastructure Law (BIL) provides new tools and resources that allow coordinated action across governmental entities to invest in improving roadway safety.[6] The BIL provides $5 billion for the Safe Streets and Roads for All program, over $15 billion in funding for the Highway Safety Improvement Program (HSIP), along with significant funding allocated for vehicle and truck safety programs and improved incident collection data.[7]

II. Safe System Approach

The NRSS is made up of six principles[8] called the "Safe System Approach" –

1. Death and serious injury are unacceptable.
2. Humans make mistakes.
3. Humans are vulnerable.
4. Roadway responsibility is shared.
5. Roadway safety is proactive.
6. Redundancy is crucial.

The Safe System Approach assumes there will always be human error. Its underlying strategy is to reduce opportunities for human error that result in accidents by separating users in space and time, increasing user attentiveness and awareness, alerting users to potential hazards, and accommodating human vulnerability by reducing traffic speed and vehicular impact force.[9] Human error and risky driving behavior contribute significantly to roadway fatalities. The NRSS states: "the overwhelming majority of serious and fatal crashes include at least one human behavioral issue as a contributing factor."[10] Further, roadway infrastructure design is also a contributing factor to roadway safety concerns. For example, roadways with three or more lanes, pedestrian crossing lanes spanning five or more lanes, and visibility issues have been cited as significant contributors to pedestrian fatalities.[11]

The initiative encourages collaboration and consideration among "stakeholders," including roadway users, vehicle manufacturers, and facilitators who design, operate, and maintain the transportation network.[12] They include the public sector, private sector, advocacy, and research communities.[13] Stakeholders are risk mitigators in the Safe System Approach: their behavior can reduce or prevent fatalities and serious injuries, but this approach can only work in a culture of shared responsibility. To that end, the Safe System Approach addresses five safety mitigation elements:[14]

1. Safe road users
2. Safe vehicles
3. Safe speeds
4. Safe roads
5. Post-crash care

A. Safer Roads, Safer Speeds, Safer Road Users

"Safer Roads" is one of the key measures emphasizing roadway design elements that offer layered protection for road users. Well-designed roadways complement vehicle technology for improving safety performance for people both inside and outside of vehicles.[15] Industry stakeholders may leverage roadway designs that prevent crashes and mitigate harm when incidents occur. The USDOT is working to update roadway design guidelines and regulations to reflect best practices for safer roadways.

Specific updates will incorporate proven incident countermeasures such as re-engineering roads to slow down vehicles and promoting the use of speed safety cameras. The NRSS also intends to reverse the disproportionate impact of vehicular incidents on people of color and on people (pedestrians and bicyclists) outside of the vehicle, and additionally notes that "rural communities and small towns face outsized safety impacts relative to their population and number of miles traveled."[16]

Because the Safe System Approach accounts for human errors that lead to incidents, the NRSS encourages transportation system design and operation that accounts for human error and injury tolerance and incentivizes roadway safety enhancements. Examples of safety-focused roadway design include:

• Roadside features that mitigate incident severity when roadway departures occur (e.g., median barriers to prevent errant drivers from entering oncoming traffic),[17]
• Vertical and horizontal separation in urban settings that separate heavy and/or fast vehicles from vulnerable road users (i.e., pedestrians and cyclists).[18]

Increasing roadway safety requires all parts of the roadway system be strengthened. If one part of a layered system fails, then other parts may still protect roadway users. This goes beyond structural improvements because to have safer roads, vehicles must be safer. The NRSS points to potential rulemakings to address AEB technologies on new passenger vehicles and heavy trucks, with an emphasis on pedestrian safety measures.[19] There is particular interest in solutions that prevent pedestrian injuries after dark. Another potential rulemaking may require impaired driving prevention technologies on passenger vehicles. Affected manufacturers may be at the forefront of eliminating one of the biggest dangers on the road: impaired driving.

B. Safer Vehicles

Another key initiative emphasized in the Safe System Approach is "Safer Vehicles." The USDOT is analyzing how Advanced Driver Assistance Systems (ADAS) in vehicles may prevent and mitigate the impact of crashes. ADAS would include, for example, automatic emergency braking that applies a vehicle's brakes automatically to avoid or mitigate an impending crash and technology that monitors lane markings and alerts the driver of lane departure. The same technology can mitigate risks created by a driver's behavior.[20] Federal authorities are also tracking ADAS performance by "actively researching test methods, procedures, and criteria to assess long-term safety benefits, as well as broader impacts on workers, drivers, and all people who use the roadways."[21] Future infrastructural changes aimed at crash prevention and mitigation could impact roadway design, which should be an important factor in CAV developer calculus.[22]

1. Safer Vehicles: Updates to Consumer Labels System within Vehicles

Adding to vehicle safety measures, USDOT plans to update the Monroney consumer label,[23] which currently includes crashworthiness information, to also include crash avoidance information for each passenger vehicle.[24] Communicating crashworthiness information via consumer labels presents a layer of redundancy as many autonomous vehicle manufacturers and industry stakeholders already participate in voluntary safety reports. The safety reports are publicly available and participating companies are listed in the Voluntary Safety Self-Assessment (VSSA) Disclosure Index that NHTSA maintains.[25]

Early awareness of new rulemakings and policy implementation will be critical to maintain autonomous vehicle production goals. Making vehicles safer without heavy-handed government regulations requires industry engagement and collaboration to develop clear summary estimates of crashworthiness for consumers. New safety label requirements may take different forms, and it is imperative for stakeholders to weigh in on safety label changes. Importantly, education on current technologies and future safety measures will be important ways to engage with the regulatory process; such measures will promote new policies and changes to safety labels that are feasible and do not thwart innovation, including existing investment in safer vehicles.

2. Safer Vehicles: New Car Assessment Program

Another vehicle-focused improvement is the USDOT's implementation of safety measures inside and outside of vehicles to specifically address safety of children, pedestrians, and cyclists. Recent updates to the existing NCAP roadmap include incremental vehicle improvement rollouts and technological advancements over a 10-year period. The NCAP roadmap also proposes new data evaluation measures, research, and analysis of inclusion criteria to help guide program updates.

The USDOT also plans to require collision reporting from manufacturers when their self-driving and/or automated car is involved in an incident. Specifically, USDOT plans to create an incident database to improve ADS safety as part of the NRSS. Similar efforts include increased investigation of safety issues involving AV and ADS technologies for autonomous vehicles.

3. Safer Vehicles: Vehicle Incident Data

The Safe System Approach invites engineering solutions to roadway safety problems and emphasizes safety for all roadway users. The USDOT strives to "promote effective practices focused on behavioral safety such as alcohol ignition interlock devices" to deter impaired driving. Further, the USDOT intends to promote safety through research and the development of technology to "detect and prevent alcohol and drug impaired driving." The NRSS enumerates advanced impaired driving prevention technology, automated speed enforcement, manufacturer notification of crashes involving ADS, and timely investigations into emerging vehicle safety issues arising from new technologies as important features of the department's long-term goals.

The NHTSA has emphasized the need for improved vehicle collision and incident data in a General Order which took effect on August 12, 2021.[26] The Order includes raw collision data and crash reporting for vehicles equipped with ADS. Certain driver-assistance systems that perform the entire dynamic driving task on a sustained basis without a traditional human driver are still in development. While the agency acknowledged that some data remains incomplete, unverified, or out-of-context because incident report data is not normalized, NHTSA aims to improve data collection and analysis methods and will release monthly updates. For background: vehicles with Level 2 ADAS (which, unlike ADS, provide both speed and steering input when the driver-assistance system is engaged but require the human driver to remain fully engaged in the driving task at all times) have built-in technology known to prevent and mitigate the impact of crashes and are currently available in most vehicles sold today.

The General Order requires manufacturers and operators, including of prototype vehicles, to submit timely incident reports following crashes; this requirement applies to ADS or Level 2 ADAS-capable vehicles with potential safety defects.[27] This is distinct from the AV Test: a voluntary program launched by USDOT in June 2020 that collated reported information from ADS-equipped vehicle manufacturers into analytics for public awareness of safety standards. Transparency remains a top NHTSA priority, as the first round of data resulting from implementation of the General Order's crash notification requirement was publicly released one year later.[28]

For crashes involving ADS-equipped or SAE L2 ADAS vehicles, where some level of vehicle automation was active 30 seconds before impact, early reporting identifies whether the crash caused a fatality, serious injury, or no injury.

• Of the 130 reported crashes for ADS-equipped vehicles, 108 involved collisions with another vehicle, and 11 involved a vulnerable road user, such as a pedestrian or cyclist. One reported crash from an ADS-equipped vehicle resulted in serious injuries, while 108 of the crashes resulted in no injuries.[29]
• For vehicles with SAE L2 ADAS, alleged serious injuries or a fatality occurred in 11 of the 98 crashes where information on injuries was reported. Of the reported crashes for SAE L2 ADAS, at least 116 of the collisions were with another vehicle, and at least four collisions involved a vulnerable road user.[30]

Occupant safety is one of NHTSA's top priorities, and its crash notification requirement was an early step toward helping USDOT adopt a data-driven approach to ensuring safe deployment of AV technology. On March 10, 2022, NHTSA issued a Final Rule updating the Federal Motor Vehicle Safety Standards (FMVSS) for occupant protection to account for ADS-equipped vehicles without a human driver. The Final Rule includes updated terminology, fewer obsolete requirements for vehicles that lack the traditional manual controls associated with a human driver, and lack a "driver's seat," "passenger seat," or "steering wheel" and safety standards for ADS innovations.

III. Looking Ahead

The USDOT plans to implement some of the changes we have highlighted as soon as 2024. From safety-centric labeling to equitable infrastructure improvements, the USDOT has made clear that "equity" is key in addressing safety.[31] In particular, universal road user education is needed with an emphasis on education in rural communities that face much greater safety impacts relative to their population and number of miles traveled. In addition, state agencies will likely begin adapting to new AV technologies through updated State Strategic Highway Safety Plans, as well as implementation of CAV infrastructure—from upgrading to wider and brighter lane striping to intelligent transportation system (ITS) investments. Data about the involvement of autonomous vehicles in crashes can also be collected in reports and used for future data analysis, and such data usage raises legal issues that warrant further consideration. Lastly, there are opportunities to incorporate human behavior research, focused on human vulnerability and errors into road safety analysis.[32] The NRSS also provides a value-based map, breaking down the philosophical imperatives behind federal funds and regulations. Understanding those philosophical imperatives will be key to fully grasping the future of the automotive industry—at least as far as the NRSS will guide it.

DWT will issue further updates and advisories on rulemakings and stakeholder processes as the USDOT advances policies that may have a significant impact on the mobility and transportation industry.

* On the date of this publication, Edlira Kuka was a law student at Seattle University School of Law and worked as a communications law, regulation & policy manager at DWT. On November 7, 2023, Edlira was admitted to practice law in the District of Columbia and became an attorney with DWT’s Communications Practice.

** Tanner Harris, a rising second year law student at American University Washington College of Law, and Durva Trivedi, a rising second year law student at Georgetown University Law Center, were 2022 summer associates at DWT.