Products Liability Law Daily Temporary exemption granted for driverless electric-powered delivery vehicle
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Tuesday, February 11, 2020

Temporary exemption granted for driverless electric-powered delivery vehicle

By Colleen Kave, J.D.

Nuro, Inc.’s R2X will be produced without mirrors or a windshield.

The National Highway Traffic Safety Administration (NHTSA) granted Nuro, Inc. a temporary exemption from three requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 500, Low-Speed Vehicles The exemption, which will be in effect from February 11, 2020, to February 10, 2022, applies to Nuro’s R2X, a highly automated (SAE Level 4 or L4), low-speed (25 mph maximum), electric-powered delivery vehicle. Nuro is permitted to produce up to 2,500 exempted R2X vehicles during any 12-month period of the exemption, or a maximum of 5,000 exempted vehicles over the full two-year exemption period (NHTSA Notice85 FR 7826, February 11, 2020).

Background. According to Nuro, the R2X is designed to carry cargo exclusively and operate without a human driver. Therefore, the R2X does not have any occupant compartments, designated seating positions, or manual controls for driving the vehicle. Nuro sought exemptions from various FMVSS that are designed to provide safety benefits for human occupants, contending that since the R2X does not accommodate any occupants, these safety standards do not serve their intended functions. In a news release last week, U.S. Secretary of Transportation Elaine L. Chao agreed, stating that the omitted features "no longer make sense" since the R2X is designed to have no human occupant and operates exclusively using an automated driving system (ADS) [see Products Liability Law Daily’s February 7, 2020 analysis].

The three substantive requirements in FMVSS No. 500 from which the agency is granting an exemption are the exterior and/or interior mirror requirement (S5(b)(6)), the windshield requirement (S5(b)(8)), and the backup camera "linger time" requirement (S5(b)(11)). The agency is also granting Nuro an exemption from certain provisions of the backup camera test procedures in FMVSS No. 111 that cannot be performed due to the R2X’s unique design.

NHTSA’s decision. NHTSA made its decision to grant Nuro’s petition after making several statutorily mandated agency findings, including that exempting the R2X from three of the requirements in FMVSS No. 500 would not lower the safety of the R2X as compared to a compliant version of the vehicle. NHTSA compared two nearly identical versions of the vehicle—a compliant version of the R2X and an exempt, noncompliant R2X. This approach enabled the agency to make the statutorily required comparisons more concrete and understandable and to simplify and focus its analysis on the requirements from which an exemption is being sought and on the vehicle features that would be directly affected by an exemption.

Based on its engineering expertise and the information available to the agency, NHTSA found that granting an exemption for the R2X would result in a vehicle that is at least as safe as a compliant version of the R2X. NHTSA also determined that an exemption would be consistent with the public interest and the National Traffic and Motor Vehicle Safety Act because, by allowing for the manufacture and commercial deployment of Nuro’s desired design vehicle, an exemption would further the development of innovative technologies used in the R2X (most notably, its ADS), which could lead to safety, environmental, and economic benefits to the communities in which the R2X operates, and could eventually lead to benefits for other communities where ADS vehicles are deployed in the future. Moreover, an exemption would further the development and implementation of innovative business models, like Nuro’s delivery service, for putting those technologies to use. This determination is consistent not only with NHTSA’s exercise of its long standing safety authority and expertise on motor vehicle issues, but also with the broad authority that Congress vested in the Secretary of Transportation to grant exemptions in the public interest.

The R2X will be the first ADS vehicle exempted under NHTSA’s general exemption authority, and, according to Nuro, will be deployed as part of a commercial operation that will involve frequent interaction with the public. Accordingly, the agency has taken efforts to ensure the vehicles operate in as safe a manner as a non-exempted vehicle. Specifically, NHTSA has determined that it is in the public interest to establish a number of reporting and other terms of deployment of the vehicles that will apply throughout the useful life of these vehicles—violation of which can result in the termination of this exemption. The agency also notes that it retains the full suite of its investigative and enforcement authorities with respect to Nuro’s vehicles and operations.

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