Unanticipated Consequences for Noncompliance with NHTSA’s Voluntary In-Vehicle Electronics Distraction Guidelines

NHTSA is in the process of adopting Visual-Manual Driver Distraction Guidelines for In-Vehicle Electronic Devices. The guidelines purport to recommend a limit on the amount of time a driver has to divert his eyes to perform tasks on in-vehicle electronic devices while driving and to disable those applications that fail to comply with the limit and certain other specified per se distracting applications during vehicle operation. NHTSA calls the guidelines voluntary but notes that it will closely monitor compliance and that it intends to make public the results of that monitoring. By doing so, NHTSA seeks to "promote safety" by "discourag[ing] device interfaces that lack evidence of sound human factors principles in their design" and "discourag[ing] the introduction of egregiously distracting devices and non-driving tasks."

The effect that noncompliance with these guidelines will have on manufacturer’s recall obligations has caused some uncertainty in the industry. At the March 16, 2012 hearing in Los Angeles on NHTSA’s proposed guidelines, a commentator observed that "the guidelines land in a gray zone between recommendation and regulation" and asked whether a manufacturer’s failure to meet the guidelines would require the automaker to conduct a safety recall. Seeking to clarify the record, Administrator Strickland responded that the guidelines were "truly voluntary," "manufacturers may choose not to comply" and that "[t]here is no legal consequence from a federal perspective on noncompliance." On its face, this response should be reassuring to the industry. It does close the door on possible recalls for vehicles or equipment that do not comply with a safety standard, or in this case a guideline. But, does it close that door all the way? Possibly not. Could manufacturers still be required to conduct distraction-related recalls because a distracting device amounts to a defect related to motor vehicle safety? Possibly. Unless addressed further in the final rulemaking, manufacturers may be heading into unchartered waters when it comes to the true consequences of noncompliance.