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July 29, 2013 Articles

NHTSA Revs Up Campaign Against Distracted Driving

By Daniel Campbell and Ariel Applebaum-Bauch

Concerned that driver distraction plays a role in a high percentage of automobile accidents, the National Highway Traffic Safety Administration (NHTSA) has been waging an ongoing campaign to reduce driver distraction. As part of this campaign, in June 2012, NHTSA released its Blueprint for Ending Distracted Driving, describing NHTSA's past and ongoing efforts to curb distracted driving. Among other goals, the blueprint sets forth NHTSA's plans to issue three sets of guidelines aimed at limiting driver distraction from electronic devices.

On April 26, 2013, NHTSA released final guidelines for in-vehicle electronic devices, the first of the three planned sets of guidelines. Visual-Manual NHTSA Driver Distraction Guidelines for In-Vehicle Electronic Devices, 78 Fed. Reg. 24,818 (Apr. 26, 2013). The new guidelines recommend restrictions on drivers' use of built-in electronic devices that require visual-manual operation. "Visual-manual operation" refers to any task that requires a driver to look at the device, operate it by hand, and then wait for a reaction to his or her input.

The guidelines' primary recommendation is that motor vehicle manufacturers "lock out" certain features of built-in electronic devices, preventing a driver from engaging with these features while driving. Built-in electronic devices are devices built into the vehicle at the time of manufacture, including navigation, entertainment, and communications systems.

Electronic Devices Recommended for "Per Se Lockout"
The devices recommended for lockout fall into two categories. First, NHTSA has designated certain device functions for "per se lockout." NHTSA recommends that these functions always be inaccessible to the driver while driving. NHTSA also recommends that most of these activities be inaccessible to a passenger if the electronic device's display is within view of the driver. Tasks designated for per se lockout are

  • manual text entry for the purpose of text-based messaging, other communication, or Internet browsing;

  • displaying video (with some enumerated exceptions);

  • displaying images (also with enumerated exceptions);

  • display of scrolling text that moves at a pace not controlled by the driver;

  • visual presentation of textual information unrelated to driving, including books, periodicals, webpage content, social media content, text-based advertising and marketing, and text-based messages and correspondence; and

  • all other "device functions and tasks not intended to be used by a driver while driving."

Other Functions Recommended for Lockout
Second, in addition to the specific tasks designed for per se lockout, NHTSA recommends that manufacturers evaluate certain other tasks to see if they divert the driver's attention from the road. Tasks that do not meet the guidelines' testing criteria are recommended for lockout. NHTSA designates two different modes of testing, both designed to measure how long the driver's eyes are engaged by certain tasks. NHTSA prefers that tasks engage the driver's glance for no more than two seconds at a time and for no more than 12 seconds in total.

Tasks slated for manufacturer testing include all "non-driving-related tasks," such as making phone calls. The guidelines do not recommend testing of most driving-related tasks, including operating the steering wheel, throttle, brake pedal, and other driving controls; tasks relating to the proper use of a driver safety warning system; or the use of any electronic device that has a function, control, or display governed by the Federal Motor Vehicle Safety Standards (FMVSS). But even some driving-related tasks are subject to the guidelines, including cruise control operation, resetting trip odometers or computers, and observation of emissions controls. The guidelines are applicable not just to relatively new technologies such as GPS navigation systems but also to "conventional" electronic devices, including radios, clocks, and temperature controls. They do not apply to devices that are accessible only to backseat passengers.

Additional Recommendations
In addition to designating activities for lockout and potential lockout, the guidelines also make the following recommendations about built-in electronic device design:

  • No part of an electronic device should obstruct the driver's view of the roadway or of any vehicle controls or displays required for driving.

  • Electronic devices should be mounted in a location easy to see and reach while driving.

  • The electronic device display should be within a certain range of driver's forward line of sight (the driver should not have to look too far down to see display).

  • Text displayed on electronic devices should meet minimum size requirements.

  • The sound level of electronic devices should be limited so as not to mask any safety warning sounds or cause distraction.

  • The sound level of electronic devices should be fully mutable.

  • Operation of electronic devices should require no more than one hand, allowing the driver to maintain one hand on the steering wheel at all times.

  • The driver should always have the option to pause while inputting information into an electronic device (e.g., the device should not automatically delete input from the driver if the driver stops inputting information).

  • The electronic device should respond to driver's input in under 0.25 seconds or, alternatively, should display a clear message that a response is pending.

  • All electronic devices should be able to be turned off or disabled.

For the purposes of the guidelines, NHTSA has defined "driving" to include any time the vehicle's engine or motor is running, unless the vehicle is in "park" or, for vehicles without a "park" position, three conditions are met: The parking brake is engaged, the transmission is in neutral position, and the speed is less than five miles per hour. The agency specifically rejected the suggestion from some commenters that "driving" include any motion of the vehicle up to five miles per hour. NHTSA explained that it does not want drivers engaging with electronic devices at traffic lights or stop signs.

Impact on Vehicle Manufacturers and Other Stakeholders
Although extensive, the guidelines are not Federal Motor Vehicle Safety Standards. NHTSA therefore cannot require any company to report failures to comply with the guidelines. It also cannot require recalls of noncomplying vehicles or equipment. NHTSA has also clarified that failure to adhere to the guidelines would not in itself lead NHTSA to determine the existence of a safety-related defect, but it is possible that, in general, a device subject to the guidelines could malfunction in a way that constitutes a safety-related defect.

Although the guidelines are not binding, they may have a significant impact on vehicle manufacturers. NHTSA has announced that it "intend[s] to monitor manufacturers' voluntary adoption of" the guidelines. 78 Fed. Reg. at 24,821. NHTSA "plan[s] to test actual production vehicles, either internally by NHTSA or through outside contractors. Vehicles will be selected for such monitoring so that they cover a large portion of all makes and models." Id. at 24,842. NHTSA will consider making its monitoring results available to the public. NHTSA has stated that it expects compliance with the guidelines to occur within three years for both existing and new vehicle models. The guidelines may also foreshadow future regulations. NHTSA has "emphasize[d] that the issuance of voluntary guidelines at this time does not represent a decision to never issue regulations in this area." Id. at 24,830.

Next Steps
As part of the blueprint and its continued campaign against distracted driving, NHTSA expects to release two additional sets of guidelines: one governing portable electronic devices not built into the vehicle—including aftermarket GPS navigation systems, smart phones, electronic tablets and pads, and other mobile communications devices (phase two guidelines)—and one covering voice-activated controls in factory-installed aftermarket and portable devices (phase three guidelines).

NHTSA has expressed a desire to maintain open lines of communication with manufacturers and other stakeholders as it moves through the next steps of its driver distraction elimination plan. Specifically, NHTSA "is interested in working with all interested parties to keep the NHTSA Guidelines up-to-date and, to the extent possible, to coordinate future efforts and research." Id. at 24,821. NHTSA may hold a workshop for stakeholders interested in the development of the guidelines. NHTSA has also indicated that it welcomes requests for interpretation letters and is open to meeting with interested parties that have concerns about the guidelines.

Keywords: litigation, products liability, NHTSA, guidelines, in-vehicle electronic devices, motor vehicle manufacturers, driver distractions

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