Advanced Impaired Driving Prevention Technology, 830-857 [2023-27665]

Download as PDF 830 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA–2022–0079] RIN 2127–AM50 Advanced Impaired Driving Prevention Technology National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Advance notice of proposed rulemaking. AGENCY: This document initiates rulemaking that would gather the information necessary to develop performance requirements and require that new passenger motor vehicles be equipped with advanced drunk and impaired driving prevention technology through a new Federal Motor Vehicle Safety Standard (FMVSS). In this document, NHTSA presents its various activities related to preventing drunk and impaired driving and discusses the current state of advanced impaired driving technology. NHTSA also asks many questions to gather the information necessary to develop a notice of proposed rulemaking on advanced drunk and impaired driving technology. SUMMARY: Comments should be submitted no later than March 5, 2024. ADDRESSES: You may submit comments to the docket number identified in the heading of this document by any of the following methods: • Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. • Fax: 202–493–2251. Instructions: All submissions must include the agency name and docket number. Note that all comments received will be posted without change to https://www.regulations.gov, including any personal information provided. Please see the Privacy Act discussion below. NHTSA will consider all comments received before the close of business on the comment closing date lotter on DSK11XQN23PROD with PROPOSALS2 DATES: VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 indicated above. To the extent possible, the agency will also consider comments filed after the closing date. Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov at any time or to 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Telephone: 202–366–9826. Confidential Business Information: If you wish to submit any information under a claim of confidentiality, submit these materials to NHTSA’s Office of the Chief Counsel in accordance with 49 CFR part 512. All requests for confidential treatment must be submitted directly to the Office of the Chief Counsel. NHTSA is currently treating electronic submission as an acceptable method for submitting confidential business information to the agency under part 512. If you claim that any of the information or documents provided in your response constitutes confidential business information within the meaning of 5 U.S.C. 552(b)(4), or are protected from disclosure pursuant to 18 U.S.C. 1905, you may submit your request via email to Dan Rabinovitz in the Office of the Chief Counsel at Daniel.Rabinovitz@ dot.gov. Do not send a hardcopy of a request for confidential treatment to NHTSA’s headquarters. FOR FURTHER INFORMATION CONTACT: Ms. Chontyce Pointer, Office of Crash Avoidance Standards, Telephone: 202– 366–2987, Ms. Sara R. Bennett, Telephone: 202–366–7304 or Mr. Eli Wachtel, Telephone: 202–366–3065, Office of Chief Counsel. Address: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Introduction A. Background Information About Impaired Driving States B. Many Different Behavioral Strategies Exist, Yet Impaired Driving Persists C. NHTSA’s Authority III. Advanced Drunk and Impaired Driving Prevention Safety Problem A. Drunk Driving B. Distracted Driving C. Drowsy Driving IV. Overview of Current Efforts To Address Drunk and Impaired Driving A. State and Federal Behavioral Prevention Activities 1. Deterrence 2. Prevention 3. Communications Campaigns 4. Alcohol and Drug Treatment, Monitoring, and Control PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 B. Vehicle-Based Countermeasures 1. Summary of Research on Vehicle-Based Countermeasures 2. Passive Detection Methods and Available Technologies 3. Proposed Vehicle Interventions Once Driver Impairment or BAC Is Detected V. Summary of Other Efforts Related to Impaired Driving VI. Privacy and Security VII. Consumer Acceptance VIII. General Questions for the Public IX. Rulemaking Analyses and Notices A. Executive Order 12866, Executive Order 13563, Executive Order 14094, and DOT Regulatory Policies and Procedures B. Privacy Act C. Regulation Identifier Number (RIN) I. Executive Summary Alcohol-impaired driving 1 is a major cause of crashes and fatalities on America’s roadways. The National Highway Traffic Safety Administration (NHTSA) has been actively involved in addressing alcohol-impaired driving since the 1970s. Recent developments in vehicle technology present new opportunities to further reduce drunk and impaired driving crashes and fatalities or eliminate them altogether. Private and public researchers have also made significant progress on technologies that are capable of measuring and quantifying driver state and performance (e.g., hands on the steering wheel, visual gaze direction, lane position). However, harnessing these technologies for drunk and impaired driving detection and prevention remains a significant challenge. NHTSA’s information gathering and research efforts have found that several technologies show promise for detecting various states of impairment, which for the purposes of this document are alcohol, drowsiness, and distraction. However, technological challenges, such as distinguishing between different impairment states, avoiding false positives, and determining appropriate prevention countermeasures, remain. Due to technology immaturity and a lack of testing protocols, drugged driving is not being considered in this advance notice of proposed rulemaking. The Infrastructure Investment and Jobs Act (Bipartisan Infrastructure Law or BIL) directs NHTSA to issue a final rule establishing a Federal Motor Vehicle Safety Standard (FMVSS) that requires new passenger vehicles to have 1 This document discusses both drunk driving and alcohol-impaired driving. Drunk driving, as used in this document, is understood to be operating a vehicle at or above the threshold of alcohol concentration in the blood established by law. Alcohol-impaired driving describes the entire set of impairments of various driving-related skills and can occur at lower concentrations of alcohol. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules ‘‘advanced drunk and impaired driving prevention technology’’ by 2024.2 The BIL also provides that an FMVSS should be issued only if it meets the requirements of the National Traffic and Motor Vehicle Safety Act. (‘‘Safety Act’’). BIL defines the relevant technology as technology that can passively 3 and accurately monitor driver performance to detect impairment or passively and accurately measure driver blood alcohol concentration (BAC) (or both in combination) and prevent or limit vehicle operation if impairment is detected. Given the current state of driver impairment detection technology, NHTSA is issuing this advance notice of proposed rulemaking (ANPRM) to inform a possible future FMVSS that can meet the requirements of the Vehicle Safety Act. This ANPRM presents a summary of NHTSA’s knowledge of alcohol’s impact on driver performance and seeks comment on a variety of issues related to the state of development of driver impairment detection technologies. It also sets forth the research and technological advancements necessary to develop a FMVSS for driver impairment. This document also presents three regulatory options for how the agency might mitigate driver impairment: blood alcohol content detection, impairment-detection (driver monitoring), or a combination of the two. lotter on DSK11XQN23PROD with PROPOSALS2 II. Introduction Driver impairment, as used in reference to motor vehicle safety, is a broad term that could encompass many different driver states that present operational safety risks.4 There is no clear and consistent engineering or industry definition of ‘‘impairment.’’ ‘‘Impaired’’ can mean anything that diminishes a person’s ability to perform driving tasks and increases the 2 Infrastructure Investment and Jobs Act, Public Law 117–58, 135 Stat. 429 section 24220 (2021). 3 For the purposes of this document, NHTSA uses the term ‘‘passive’’ to mean that the system functions without direct action from vehicle occupants. Further information about the use of the term ‘‘passive’’ is available in the ‘‘NHTSA’s Authority’’ section. 4 Part 392 of the Federal Motor Carrier Safety Regulations prohibits any driver from operating a commercial motor vehicle (CMV) while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to continue to operate the CMV. In addition, part 392 prohibits drivers from operating a CMV while (1) under the influence of, or using, specified drugs and other substances, and (2) under the influence of, or using, alcohol within specified time and concentration limits. Further, part 392 prohibits drivers from texting or using a hand-held mobile telephone while driving a CMV. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 likelihood of a crash. Considering this, driver impairment would include drunk and drugged driving,5 but it could also include drowsy driving, distracted driving,6 driving while experiencing an incapacitating medical emergency or condition, or any other factor that would diminish driver performance and increase potential crash risk. All these driver states present operational safety risks, and each presents differing problem sizes and degrees of risk, underlying causes, states of research, data demonstrating risks from that driver state, and potential vehicle technological countermeasures that could resolve or mitigate resulting operational safety risks. Additionally, not all states of driver impairment are immediately redressable, meaning that while a vehicle safety system might help a distracted or drowsy person pay attention again, it may not help a driver be less alcohol- or drug-impaired. This difference among the driver impairment states is particularly important when considering what type of standard or countermeasure would be the most appropriate. The negative economic and societal impacts related to impaired driving are enormous and devastating in the United States. Recent NHTSA research has identified the scope of causal factors associated with fatal and non-fatal injuries in crashes, revealing key differences among outcomes associated with reported contributory factors versus estimated causal factors.7 NHTSA estimates here that in 2021: approximately 12,600 traffic fatalities were ‘‘caused by alcohol impairment,’’ versus approximately 13,400 fatalities ‘‘involving alcohol;’’ 12,400 fatalities were ‘‘due to distraction’’ 8, but and drowsy driving led to at least 684 fatalities. Differences in values associated with reported contributory 5 Drugged driving is excluded from the scope and is discussed more in the Introduction, A. ‘‘Background information about impaired driving states’’ of this document. 6 NHTSA has stated that distracted driving includes talking on mobile phones, texting, eating, and other non-driving activities. 7 Comprehensive economic costs account for the total societal harm associated with fatalities and injuries, including economic impacts and valuations of lost quality-of-life. See Blincoe, L., Miller, T., Wang, J.-S., Swedler, D., Coughlin, T., Lawrence, B., Guo, F., Klauer, S., & Dingus, T. (2023, February). The economic and societal impact of motor vehicle crashes, 2019 (Revised) (Report No. DOT HS 813 403). National Highway Traffic Safety Administration. 8 Fatalities ‘‘involving reported distraction’’ refers to fatalities where a law enforcement officer reported a driver in a fatal crash as having been distracted at the time of the crash, which is associated with underreporting of all crashes, fatalities, and injuries involving and caused by distraction. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 831 factors versus causal factors are driven by offsetting forces; underreporting is a predominant issue for estimates of fatalities and injuries caused by distraction and possibly drowsy driving, while at least some fatalities and nonfatal injuries associated with alcohol and distraction likely had other causal factors. The enormous safety potential of addressing the three states of impaired driving considered here impels NHTSA’s activities relating to driver impairment. With respect to alcohol impairment, NHTSA has been conducting behavioral research and implementing behavioral safety strategies and programs, public education, and enforcement campaigns to combat drunk driving. Despite these efforts, which have contributed to significant declines in fatalities over the past several decades, drunk driving remains a significant safety risk for the public. NHTSA is also engaged in technology-based research. This includes better understanding of the technological capabilities that measure drivers’ eye movements and vehicle inputs. In addition, through the Driver Alcohol Detection System for Safety (DADSS) program, NHTSA is actively involved in cutting-edge research to help develop technology to quickly, accurately, and passively 9 detect a driver’s BAC. Upon completion of this development work, this technology may prevent drivers from shifting their vehicles into gear if they attempt to operate the vehicle at a BAC above the legal limit. NHTSA believes that the passive DADSS technology, still in development, may be one way to meet the BIL mandate, and that prevention of drunk driving is the best way to reduce the number of crashes and resulting fatalities and injuries that occur due to alcohol-impaired driving. Concerted efforts by NHTSA, States, and other partners to implement proven strategies generated significant reductions in alcohol-impaired driving fatalities since the 1970s when NHTSA records began; but progress has stalled. Between 2011 and 2020, an average of almost 10,500 people died each year in alcohol-impaired driving crashes. The agency has seen record increases in overall traffic fatalities over the last few years of the COVID–19 pandemic, likely reflecting increases in alcohol- and 9 The previous DADSS technology requires a directed breath toward a sensor to measure breath alcohol concentration (BrAC). The DADSS research and development effort is continuing to focus on developing technology that does not require a directed breath to detect the presence of alcohol. E:\FR\FM\05JAP2.SGM 05JAP2 832 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules drug-impaired driving.10 While the causes of the recent fatality increases require further study and NHTSA continues to support strategies to change driver behavior, more must be done to reach our goal of zero traffic fatalities. Accordingly, in January 2022, DOT issued its National Roadway Safety Strategy (NRSS) to address the crisis of deaths on the nation’s roadways.11 The NRSS adopts the Safe Systems Approach 12 as the guiding paradigm to address roadway safety and focuses on five key objectives: safer people, safer roads, safer vehicles, safer speeds, and improved post-crash care. The Safe System Approach works by building and reinforcing multiple layers of protection both to prevent crashes from happening in the first place and to minimize the harm to those involved when crashes do occur.13 Drunk and impaired driving is an NRSS priority.14 The NRSS’s Safe System Approach involves using all available tools, including education, outreach, enforcement, and engineering solutions, including motor vehicle technologies like alcohol, drowsiness, and visual distraction detection systems.15 Vehicle technologies that can help prevent and mitigate risky behaviors and driver impairment are a key element of the safer vehicles element of this approach. To complement behavioral campaigns, which have reduced, but not eliminated, driving while impaired,16 NHTSA is considering what technological countermeasures and performance requirements could be applied to motor vehicles that would achieve the NRSS safety objectives. Graph 1 provides an overview of the alcohol-impaired fatalities since the early 1980s. Graph 1. Alcohol-Impaired Fatality Trend -Total Number of Alcohol-Impaired Fatalities -Percentage of Tota! Fata!ities that were Alcohol-impaired 60% Addressing each impaired driving state has its own set of unique challenges. For some, such as alcohol, technological solutions are not yet readily available that would consistently prevent a significant proportion of crashes caused by that impaired driving state. For others, such as distraction and drowsiness, there is evidence that police-reported crash data likely underestimate their role in crash causation. Amidst this uncertainty, the agency has many questions that must be answered to develop a proposal that will meet all statutory requirements and Departmental priorities. Given the breadth of impairment states, severities, detection technologies, and interventions, it is valuable to take this opportunity to clarify the scope of this effort. In view of the larger number of fatalities associated with alcohol impairment and the well-defined legal thresholds and measurements available for alcohol impairment, as compared with other types of impairment, NHTSA is focusing this ANPRM on alcohol impairment.17 However, based on the language in BIL, NHTSA believes that Congress did not intend to limit NHTSA’s efforts under BIL to alcohol impairment. Therefore, while alcohol impairment is the focus, this ANPRM also covers two additional impairment states: drowsy driving and distracted driving. NHTSA chose these states for two reasons. First, the size of the safety problem—in particular that of distracted driving—is immense. Second, certain sensor technologies that have the potential to detect or assist in detecting alcohol impairment and are or can be incorporated into driver monitoring systems (DMS) may also have the potential to detect drowsy and distracted driving. Including these impairment states in this effort therefore presents an opportunity to deliver significant additional safety benefits to the American people. These technological considerations are discussed in greater detail in Section IV. B. ‘‘Vehicle Based Countermeasures’’. Additionally, it is important to understand the many challenges with trying to identify and prevent the different types of impaired driving with a single performance standard. The agency is interested in learning more from commenters about what technologies and associated metrics might identify multiple types of 10 Office of Behavioral Safety Research (2021, October). Continuation of research on traffic safety during the COVID–19 public health emergency: January–June 2021. (Report No. DOT HS 813 210). National Traffic Safety Administration. 11 Available at https://www.transportation.gov/ NRSS. 12 https://safety.fhwa.dot.gov/zerodeaths/docs/ FHWA_SafeSystem_Brochure_V9_508_200717.pdf. 13 United States Department of Transportation (2022, October). What is a safe system. Website: https://www.transportation.gov/NRSS/SafeSystem. 14 It also observes that considerable progress in behavioral research has been made to advance the knowledge and understanding of the physiological effects of both alcohol- and drug-impaired driving. 15 Id. at 16. 16 Taylor, C.L., Byrne, A., Coppinger, K., Fisher, D., Foreman, C., & Mahavier, K. (2022, June). Synthesis of studies that relate amount of enforcement to magnitude of safety outcomes (Report No. DOT HS 813 274–A). National Highway Traffic Safety Administration. 17 Meaning that metrics, such as BAC, currently exist to measure the type of impairment. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\05JAP2.SGM 05JAP2 EP05JA24.001</GPH> lotter on DSK11XQN23PROD with PROPOSALS2 25.000 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules impaired drivers.18 Also, as discussed in later sections, one of the options the agency is considering presents challenges with accurately differentiating alcohol impairment from other types of impairment, like drowsiness, assuming differentiation is desired and necessary to select appropriate alerts, warnings, or interventions. In later sections, we discuss different types of impairment that might be identified by a particular technology. It is also important to be clear here that driving while impaired with drugs other than alcohol (drugged driving) is not within the scope of this ANPRM even though drug impairment is also a significant problem. Many different drugs can affect drivers, and current knowledge about the effects of each on driving performance is limited. Furthermore, the technology and testing protocols for drugs other than alcohol, in the driving context, are not mature enough to indicate the degree of impairment and the risk of crash involvement that results from the use of individual drugs. Therefore, drugged driving is beyond the scope of this 833 rulemaking effort but remains important to the Department and agency as it addresses fatal and serious crashes. The complexities inherent in the drugged driving safety problem are discussed in more detail in the following section. between various factors that determine the metabolization of alcohol within the person’s body including frequency and amount of alcohol consumed, age, gender, body mass, consumption of other food, genetic factors, and time since alcohol consumption.23 A. Background Information About In the United States, in general, a BAC Impaired Driving States of .08 g/dL and higher in drivers is Drunk Driving defined as legally impaired 24 and a 19 condition for arrest (in Utah, a BAC at Alcohol impairment can lead to or above .05 g/dL is the illegal limit). altered and negative behaviors, as well However, alcohol-impairment of various as physical conditions that increase the driving-related skills can occur at lower risk of unintentional injuries, concentrations, and alcohol-impaired particularly when driving. Alcohol is drivers can pose serious injury risks to known to impair various drivingthemselves and others with any amount relevant abilities such as perception, of alcohol in their bodies. As alcohol visuomotor coordination, psychomotor BAC levels rise in a person’s system, the performance, information processing negative effects on the central nervous and decision making, and attention system increase.25 Alcohol affects the management.20 When consumed, body in a way that negatively impacts alcohol is absorbed from the stomach the skills needed for a person to drive and distributed by the blood stream throughout the body.21 BAC is measured safely because it impairs the function of the brain that relates to thinking, as the weight of alcohol in a certain volume of blood and expressed in grams reasoning, and muscle coordination.26 Table 1 provides an overview of the per deciliter (g/dL).22 The rise and fall of alcohol in the bloodstream (and thus, typical and predictable effects on driving over a range of BAC levels. the BAC) depends on the interplay TABLE 1—EFFECTS OF ALCOHOL ON DRIVING 27 28 Blood alcohol concentration (g/dL) .02 ........................................ .05 ........................................ .08 ........................................ Typical effects • • • • • • • • • • • lotter on DSK11XQN23PROD with PROPOSALS2 • • Predictable effects on driving Some loss of judgment ................................................ Relaxation .................................................................... Slight body warmth ...................................................... Altered mood ............................................................... Exaggerated behavior ................................................. May have loss of small-muscle control (e.g., focusing your eyes). Impaired judgment ....................................................... Euphoric feeling ........................................................... Lowered alertness ....................................................... Release of inhibition .................................................... Muscle coordination becomes poor (e.g., balance, speech, vision, reaction time, and hearing). Harder to detect danger .............................................. Impaired judgment, self-control, reasoning, and memory. .10 ........................................ • Clear deterioration of reaction time and control .......... .15 ........................................ • Slurred speech, poor coordination, and slowed thinking. • Far less muscle control than normal ........................... • Vomiting may occur (unless this level is reached slowly or a person has developed a high tolerance for alcohol). 18 The realization of additional safety benefits may depend on the performance requirements chosen by NHTSA, or the technological solution deployed by manufacturers. 19 The term alcohol in this report refers to ethyl alcohol, or ethanol, which is the principal ingredient in alcoholic drinks and the substance measured to determine blood alcohol concentration. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 • Decline in visual functions (rapid tracking of a moving target). • Decline in ability to perform two tasks at the same time (divided attention). • Reduced coordination. • Reduced ability to track moving objects. • Difficulty steering. • Reduced response to emergency driving situations. • • • • Reduced concentration. Short-term memory loss. Reduced and erratic speed control. Reduced information processing capability (e.g., signal detection, visual search). • Impaired perception. • Reduced ability to maintain lane position and brake appropriately. • Substantial impairment in vehicle control, attention to driving task, and in necessary visual and auditory information processing. 20 Moskowitz, H., & Burns, M. (1990). Effects of alcohol on driving performance. Alcohol Health & Research World, 14(1), 12–15. 21 Paton, A. (2005). Alcohol in the body. BMJ, 330(7482), 85–87. 22 National Highway Traffic Safety Administration. (2016). The ABCs of BAC: A guide to understanding blood alcohol concentration and alcohol impairment. Retrieved from https:// www.nhtsa.gov/document/theabcsofbac. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 23 Zakhari, S. (2006). Overview: how is alcohol metabolized by the body? Alcohol research & health, 29(4), 245. 24 23 U.S.C. 163. 25 https://www.nhtsa.gov/risky-driving/drunkdriving#the-issue-alcohol-effects. 26 https://www.nhtsa.gov/risky-driving/drunkdriving#:∼:text=Alcohol%20is%20a%20substance %20that,the%20central%20nervous%20 system%20increase. E:\FR\FM\05JAP2.SGM 05JAP2 834 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules TABLE 1—EFFECTS OF ALCOHOL ON DRIVING 27 28—Continued Blood alcohol concentration (g/dL) Typical effects Predictable effects on driving • Significant loss of balance. lotter on DSK11XQN23PROD with PROPOSALS2 The driving skill decrements in Table 1 provide a means of approximating the impairment correlated with BAC levels. However, BAC is a measure of the amount of alcohol in the bloodstream rather than a reliable indicator of the degree of impairment.29 30 At least two factors contribute to the lack of a precise one-to-one correlation between BAC and impairment. First, regular drinkers may learn strategies for more cautious driving to compensate for their perceived skill decrements.31 32 Second, there is also empirical evidence that some regular drinkers develop a higher tolerance to alcohol, which results in less apparent declines in cognitive and motor performance after consuming low to moderate doses.33 Therefore, BAC levels provide an imperfect measurement of probable impairment. Nearly two thirds of all alcoholimpaired fatalities involve high blood alcohol levels with a BAC level at or greater than 0.15 g/dL.34 Yet even a small amount of alcohol can affect an individual’s driving ability. In 2020, there were 2,041 people killed in alcohol-related crashes where a driver had a BAC level of .01 to .07 g/dL. 27 Table 1 should be used as a reference point for population-level analysis. The outlined effects may apply to certain individuals, but for the reasons discussed above, may vary from individual to individual. It should also be noted that while some effects are listed at multiple BACs (e.g., difficulty steering), the effects are more likely to occur and more severe at higher BACs. Information in this table shows the BAC level at which the effect usually is first observed. 28 Adapted from National Highway Traffic Safety Administration. (2016). The ABCs of BAC: A guide to understanding blood alcohol concentration and alcohol impairment. Retrieved from https:// www.nhtsa.gov/document/theabcsofbac. 29 Fillmore, M.T., & Vogel-Sprott, M.J.A.C. (1998). Behavioral impairment under alcohol: cognitive and pharmacokinetic factors. Alcoholism: Clinical and experimental research, 22(7), 1476–1482. 30 Nicholson, M.E., Wang, M., Airhihenbuwa, C.O., Mahoney, B.S., Christina, R., & Maney, D.W. (1992a). Variability in behavioral impairment involved in the rising and falling BAC curve. Journal of Studies on Alcohol, 53(4), 349–356. 31 Burian, S.E., Hensberry, R., & Liguori, A. (2003). Differential effects of alcohol and alcohol expectancy on risk-taking during simulated driving. Human Psychopharmacology: Clinical and Experimental, 18(3), 175–184. 32 Vogel-Sprott, M. (1997). Is behavioral tolerance learned? Alcohol health and research world, 21(2), 161. 33 Id. 34 https://crashstats.nhtsa.dot.gov/Api/Public/ ViewPublication/813120. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 State alcohol impairment laws and alcohol detection devices focus on measuring the alcohol concentration in BAC and breath alcohol concentration (BrAC). These are the two measurements that State laws and alcohol detection devices utilize to determine whether someone is considered driving over the legal limit (i.e., whether the person can be considered driving drunk, with ‘‘drunk’’ being defined as above the threshold of alcohol concentration established by law). BrAC is measured with a breath test device that measures the amount of alcohol in a driver’s breath. BAC is usually measured via a blood test. Technology is under development that would allow for measurement in new ways. For example, one technology uses touch- or tissue-based detection of light absorption at pre-selected wavelengths from a beam of light reflected from within the skin tissue after an optical module is touched. In other words, BAC is calculated either by a blood test or, in the future, after someone touches a sensor and that sensor calculates the BAC level in the person’s blood. NHTSA acknowledges that people may be affected by alcohol at levels below the legal limit used in most States (.08 g/dL), which is why the agency noted above that there are still crashes where alcohol is involved, but the driver’s BAC was lower than the legal limit. NHTSA discusses each of these measurements and the vehicle technologies that can measure them later in this document. Drugged Driving Drugged driving, though important to prevent, is not included in the scope of this advance notice of proposed rulemaking. There are several complexities to understanding drugged or drug-involved driving.35 To begin, the term drugs can refer to over-thecounter medications, prescription medications, and illicit drugs. Also, the mere presence of a drug in a person’s system does not necessarily indicate impairment. Currently, most information collected on drugs within 35 Berning, A., Smith, R. Drexler, M., Wochinger, K. (2022). Drug Testing and Traffic Safety: What You Need to Know. United States. Department of Transportation. (Report No. DOT HS 813 264). Washington, DC. National Highway Traffic Safety Administration. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 the driving context can provide information only on whether a driver is ‘‘drug positive.’’ 36 The presence of some drugs can remain in the body a considerable time after use, so presence at any point does not necessarily mean the person was or remains impaired by the drug.37 For some drivers, certain prescribed medications, which may be included in a positive drug test result, may be necessary for safe driving. Further, there are a wide range of drugs other than alcohol that can be used by drivers. There is limited research on crash risk and how each specific drug affects driving related skills, and the technology and testing protocols are not mature in the driving context. Today’s knowledge about the effects of any drug other than alcohol on driving performance remains insufficient to draw connections between their use, driving performance, and crash risk.38 Recently, more research has been directed to the effects of cannabis, and specifically Tetrahydrocannabinol (THC), the active component of cannabis that can cause impairing effects on driving that might lend themselves to the development of THCimpaired driving detection techniques, like those that have been developed by NHTSA for use by law enforcement for alcohol-impaired driving.39 40 However, many of these effects may also be caused by alcohol, other drugs, and other impairment states like distraction, drowsiness, and incapacitation. Current knowledge about the effects of cannabis on driving is insufficient to allow specification of a simple measure of 36 ‘‘Drug positive’’ indicates that a driver has tested positive for a drug (or drugs). However, testing positive for a drug does not indicate impairment nor any degree of potential impairment. 37 Berning, et al., 2022. 38 Compton, R., Vegega, M. Smither, D. (2009). Drug Impaired Driving: Understanding the Problem and Ways to Reduce It. DOT HS 811 268. Washington, DC. NHTSA. 39 Harris, D.H., Dick, R.A., Casey, A.M., and Jarosz, C.J. (1980) The Visual Detection of Driving While Intoxicated: Field Test of Visual Cues and Detection Methods. DOT–HS–905–620. Washington, DC: NHTSA. 40 Stuster, J.W. (1997). The Detection of DWI at BACs Below 0.10. (Report No. DOT HS 808 654). Washington, DC: U.S. Department of Transportation, NHTSA. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules driving impairment outside of controlled conditions.41 Given these challenges, the agency is not yet considering developing performance requirements and a FMVSS for drug impaired driving. lotter on DSK11XQN23PROD with PROPOSALS2 Distracted Driving NHTSA defines ‘‘driver distraction’’ as inattention that occurs when drivers divert their attention away from the driving task to focus on another activity.42 In general, distractions derive from a variety of sources including electronic devices, such as navigation systems and mobile phones, as well as conventional distractions such as sights or events external to the vehicle, interactions with passengers, and eating or drinking. These distracting tasks can affect drivers in different ways, and can be categorized into the following types: —Visual distraction: Tasks that require or cause the driver to look away from the roadway to visually obtain information. —Manual distraction: Tasks that require or cause the driver to take a hand off the steering wheel and manipulate a device or object. —Cognitive distraction: Tasks that require or cause the driver to divert their mental attention away from the driving task. Research has shown that eyes-off-road time provides an objective measure of visual distraction, which has a demonstrated relationship with crash risk. Analyses of naturalistic data have shown that eyes-off-road times greater than 2.0 seconds have been shown to increase crash risk at a statistically significant level. Further, the risk of a crash or near-crash event increases rapidly as eyes-off-road time increases above 2.0 seconds.43 There has been little agreement in the field regarding how to identify and measure cognitive distraction, however.44 Distraction can negatively affect driving performance in various ways depending on the type(s) of distraction(s), the demands of the 41 Compton, R. (2017). Marijuana-Impaired Driving—A Report to Congress. DOT HS 812 440. Washington, DC. NHTSA. 42 78 FR 24,817 (proposed April 26, 2013). VisualManual NHTSA Driver Distraction Guidelines for In-Vehicle Electronic Devices. 43 Klauer, S.G., Dingus, T.A., Neale, V.L., Sudweeks, J.D., & Ramsey, D.J. (2006). The impact of driver inattention on near-crash/crash risk: An analysis using the 100-car naturalistic driving study data (No. DOT HS 810 594). United States. Department of Transportation. National Highway Traffic Safety Administration. 44 Young, R. (2012). Cognitive distraction while driving: A critical review of definitions and prevalence in crashes. SAE International journal of passenger cars-electronic and electrical systems, 5(2012–01–0967), 326–342. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 driving task and the secondary task(s), and other factors. These effects can include decrements to reaction time, hazard detection, lateral control (i.e., lane-keeping), and longitudinal control (e.g., speed or following gap), as well as changes to eye movements (e.g., glance patterns, eyes-off-road time), and driver workload.45 46 47 For example, a metaanalysis aggregating the results of 18 simulator experiments and naturalistic driving studies reported that typing or reading text messages while driving significantly slowed reaction time, increased lane deviations, and increased eyes-off-road time.48 These degradations in driving performance due to distraction have been shown to translate into an increased risk of crash or near-crash involvement. An analysis of the second Strategic Highway Research Program (SHRP2) Naturalistic Driving Study 49 found that, when compared to alert and attentive driving, the odds of a crash were doubled when a driver was distracted, with secondary tasks that divert the driver’s eyes away from the forward roadway having the largest multiplicative increase in crash risk (e.g., dialing a handheld mobile phone increased crash risk by 12.2x, reading/ writing increased crash risk by 9.9x, and reaching for a non-mobile device increased crash risk by 9.1x).50 A similar study found that the use of handheld mobile phones in general, and specifically performing tasks with visual and manual elements (such as texting), were significantly associated with increased crash involvement.51 45 Regan, M.A., Lee, J.D., & Young, K. (2008). Driver distraction: Theory, effects, and mitigation. CRC press. 46 Young, K. & Regan, M. (2007). Driver distraction: A review of the literature. In: I.J. Faulks, M. Regan, M. Stevenson, J. Brown, A. Porter & J.D. Irwin (Eds.). Distracted driving. Sydney, NSW: Australasian College of Road Safety. Pages 379– 405.) 47 Papantoniou, P., Papadimitriou, E., & Yannis, G. (2017). Review of driving performance parameters critical for distracted driving research. Transportation research procedia, 25, 1796–1805. 48 Caird, J.K., Johnston, K.A., Willness, C.R., Asbridge, M., & Steel, P. (2014). A meta-analysis of the effects of texting on driving. Accident Analysis & Prevention, 71, 311–318. 49 SHRP2 large scale data collection effort. Data were collected from over 3,000 drivers. For more information see: https://www.fhwa.dot.gov/goshrp2/ Solutions/All/NDS/Concept_to_Countermeasure__ Research_to_Deployment_Using_the_SHRP2_ Safety_Data. 50 Dingus, T.A., Guo, F., Lee, S., Antin, J.F., Perez, M., Buchanan-King, M., & Hankey, J. (2016). Driver crash risk factors and prevalence evaluation using naturalistic driving data. Proceedings of the National Academy of Sciences, 113(10), 2636–2641. 51 Owens, J.M., Dingus, T.A., Guo, F., Fang, Y., Perez, M., & McClafferty, J. (2018). Crash risk of cell phone use while driving: A case-crossover analysis of naturalistic driving data. AAA Foundation for PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 835 Outside of naturalistic driving studies, the role of distraction in crashes can be difficult to determine because pre-crash distractions often leave no evidence for law enforcement officers or crash investigators to observe, and drivers are often reluctant to admit to having been distracted prior to a crash. A NHTSA analysis of causal factors for fatal and non-fatal injuries estimates that 29 percent of fatal and non-fatal injuries are due to distraction. This estimate is over three times larger than the police-reported share of fatal crashes involving distraction (8.2% of all traffic fatalities in 2021, as reported in the Fatality Analysis Reporting System (FARS)). The difference between these values reflects the large role that underreporting of distraction plays in identifying distraction as a traffic safety risk. Distraction-affected crashes are a relatively new measure that focuses on distractions that are most likely to influence crash involvement, such as dialing a mobile phone or texting, and distraction by an outside person/ event.52 It is also worth noting that many studies on distracted driving and its consequences were conducted prior to the proliferation of smartphones, navigation apps and devices, and builtin technologies. Consequently, it is possible that distraction-related crashes will escalate as the prevalence, diversity, and use of new technologies continue to increase. Currently, text messaging is banned for drivers in 48 States, handheld mobile phone use is prohibited in 31 States (e.g., hands-free laws), and 36 States prohibit all mobile phone use by novice drivers.53 When paired with high visibility enforcement campaigns, mobile phone and text messaging laws were shown to reduce drivers’ use of handheld mobile phones in several pilot programs.54 Drowsy Driving Drowsiness is ‘‘the intermediate state between wakefulness and sleep as defined electro-physiologically by the pattern of brain waves (e.g., electroencephalogram—EEG), eye Traffic Safety. https://aaafoundation.org/wpcontent/uploads/2018/01/CellPhoneCrashRisk_ FINAL.pdf. 52 NHTSA. (2012). Blueprint for ending distracted driving (Report No. DOT HS 811 629). www.nhtsa.gov/sites/nhtsa.dot.gov/files/ 811629.pdf. 53 https://www.ghsa.org/state-laws/issues/ distracted%20driving. 54 Chaudhary, N.K., Casanova-Powell, T.D., Cosgrove, L., Reagan, I., & Williams, A. (2014, March). Evaluation of NHTSA distracted driving demonstration projects in Connecticut and New York (Report No. DOT HS 81 635). National Highway Traffic Safety Administration. E:\FR\FM\05JAP2.SGM 05JAP2 836 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 movements, and muscle activity.’’ 55 Driver drowsiness has a variety of biological contributors, including sleeplessness or sleep deprivation, changes in sleep patterns, untreated sleep disorders, and use of drugs with sedative effects, including alcohol.56 Driver drowsiness can lead to impairments in cognitive and psychomotor speed, attentional distribution, vigilance, and working memory.57 Within the driving context, performance measures that have shown drowsiness-related decrements include lane keeping and lane departures,58 slower driving speed and decreased speed stability,59 and longer reaction times.60 Drowsiness can progress into microsleep and sleep events, in which the driver may experience cognitive and/or visual lapses of increasing duration, posing increasingly serious risks of crash involvement.61 Situational factors such as increasing time on task and monotony of driving environment can contribute to driver drowsiness.62 While driver drowsiness cannot be measured directly, it can be indirectly detected and measured using both objective and subjective measures. Objective measures related to driver drowsiness include physiological signals of brain activity (e.g., EEG, EKG,63, EOG 64), other biological markers (e.g., heart rate, respiration, galvanic skin response), measures based on observations of the driver (e.g., head pose, eye closure, blink rate), and vehicle control measures (e.g., steering 55 Johns, M.W. (2000). A sleep physiologist’s view of the drowsy driver. Transportation research part F: traffic psychology and behaviour, 3(4), 241–249. 56 https://www.cdc.gov/sleep/features/drowsydriving.html. 57 Goel, N., Rao, H., Durmer, J.S., & Dinges, D.F. (2009, September). Neurocognitive consequences of sleep deprivation. In Seminars in neurology (Vol. 29, No. 04, pp. 320–339). 58 Fairclough SH, Graham R. Impairment of driving performance caused by sleep deprivation or alcohol: A comparative study. Human Factors. 1999; 41(1):118–128. 59 Soares, S., Monteiro, T., Lobo, A., Couto, A., Cunha, L., & Ferreira, S. (2020). Analyzing driver drowsiness: From causes to effects. Sustainability, 12(5), 1971. 60 Kozak, K., Curry, R., Greenberg, J., Artz, B., Blommer, M., & Cathey, L. (2005, September). Leading indicators of drowsiness in simulated driving. In Proceedings of the Human Factors and Ergonomics Society Annual Meeting (Vol. 49, No. 22, pp. 1917–1921). 61 Blaivas, A. J., Patel, R., Hom, D., Antigua, K., & Ashtyani, H. (2007). Quantifying microsleep to help assess subjective sleepiness. Sleep medicine, 8(2), 156–159. 62 Thiffault, P., & Bergeron, J. (2003). Monotony of road environment and driver fatigue: a simulator study. Accident Analysis & Prevention, 35(3), 381– 391. 63 Electrocardiogram (EKG or ECG). 64 Electroocoulogram (EOG). VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 wheel angle, lane departures, speed variation). Using multiple measures in combination may increase the accuracy and reliability of drowsiness detection.65 Among brain activity measures, EEG is most frequently used to measure brain states, including drowsiness.66 While factors such as individual differences, time of day, and other non-drowsiness related brain activity can be confounding factors, signal markers in EEG data can indicate the presence and degree of drowsiness.67 While EEG and some other direct brain measures are advancing in their ease of use and portability, they are generally not feasible for in-vehicle use at the present time. Camera-based-systems, however, are increasingly feasible and common in vehicles. Camera-based systems have the potential to measure a wide array of driver head and face characteristics that may be indicative of drowsiness, including driver head pose, driver gaze activity (e.g., number and distribution of glances), the percentage of time the driver’s eyes are closed (i.e., PERCLOS 68), blink speed, eye closure duration, yawns, and other facial expressions. As noted previously, driver drowsiness tends to become progressively more pronounced over time. The progressive nature of driver drowsiness means that it is possible to estimate a driver’s future drowsiness state—seconds or even more than a minute into the future—based on their current drowsiness state. Researchers have used various physiological and behavioral measures to develop models to predict drivers’ subjective drowsiness,69 predict the occurrence of microsleeps,70 and predict drowsiness 65 Albadawi, Y., Takruri, M., & Awad, M. (2022). A review of recent developments in driver drowsiness detection systems. Sensors, 22(5), 2069. 66 De Gennaro, L., Ferrara, M., Curcio, G., & Cristiani, R. (2001). Antero-posterior EEG changes during the wakefulness–sleep transition. Clinical neurophysiology, 112(10), 1901–1911. 67 Stancin, I., Cifrek, M., & Jovic, A. (2021). A review of EEG signal features and their application in driver drowsiness detection systems. Sensors, 21(11), 3786. 68 Hanowski, R.J., Bowman, D., Alden, A., Wierwille, W.W., & Carroll, R. (2008). PERCLOS+: Development of a robust field measure of driver drowsiness. In 15th World Congress on Intelligent Transport Systems and ITS America’s 2008 Annual Meeting. 69 Murata, A., Ohta, Y., & Moriwaka, M. (2016). Multinomial logistic regression model by stepwise method for predicting subjective drowsiness using performance and behavioral measures. In Proceedings of the AHFE 2016 International Conference on Physical Ergonomics and Human Factors, July 27–31, 2016, Walt Disney World®, Florida, USA (pp. 665–674). 70 Watson, A., & Zhou, G. (2016, June). Microsleep prediction using an EKG capable heart rate monitor. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 as determined by coders looking at video of drivers’ faces.71 While limited research exists to demonstrate the feasibility of drowsiness state prediction under real-world driving conditions, further developments in drowsiness prediction could allow vehicles to provide alerts and interventions to reduce the risks of drowsy driving before they become severe. As the detection and prediction of driver drowsiness within a vehicle becomes increasingly feasible, it is possible to consider potential vehiclebased countermeasures to reduce risk. While there is limited research investigating interventions to reduce drowsy driving risks, evidence suggests that auditory,72 visual,73 and seat belt vibration 74 warnings can help to improve drowsy drivers’ driving performance, and that there may be benefits to multi-staged warnings relative to single-stage warnings.75 B. Many Different Behavioral Strategies Exist, Yet Impaired Driving Persists Alcohol-impaired driving is a behavioral issue, and in general, changing human behavior is particularly challenging.76 NHTSA has made considerable progress in behavioral research to advance the knowledge and understanding of the physiological In 2016 IEEE First International Conference on Connected Health: Applications, Systems and Engineering Technologies (CHASE) (pp. 328–329). IEEE. 71 de Naurois, C.J., Bourdin, C., Stratulat, A., Diaz, E., & Vercher, J.L. (2019). Detection and prediction of driver drowsiness using artificial neural network models. Accident Analysis & Prevention, 126, 95– 104. 72 Berka, C., Levendowski, D., Westbrook, P., Davis, G., Lumicao, M.N., Ramsey, C., . . . & Olmstead, R.E. (2005, July). Implementation of a closed-loop real-time EEG-based drowsiness detection system: Effects of feedback alarms on performance in a driving simulator. In 1st International Conference on Augmented Cognition, Las Vegas, NV (pp. 151–170). 73 Fairclough, S.H., & van Winsum, W. (2000). The influence of impairment feedback on driver behavior: A simulator study. Transportation human factors, 2(3), 229–246. 74 Arimitsu, S., Sasaki, K., Hosaka, H., Itoh, M., Ishida, K., & Ito, A. (2007). Seat belt vibration as a stimulating device for awakening drivers. IEEE/ ASME Transactions on mechatronics, 12(5), 511– 518. 75 Gaspar, J.G., Brown, T.L., Schwarz, C.W., Lee, J.D., Kang, J., & Higgins, J.S. (2017). Evaluating driver drowsiness countermeasures. Traffic injury prevention, 18(sup1), S58–S63. 76 In the medical field, the National Institutes of Health (NIH) established a program nearly 15 years ago to study behavior change and try to identify the most successful mechanisms that result in the most behavior change. They understood the problem and developed interventions, but they really did not understand why the intervention worked for some but not others. See https://scienceofbehavior change.org/what-is-sobc/ for an example of a NIH project focusing on the science behind changing human behaviors. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules effects of alcohol impairment on driving. Additionally, NHTSA has taken a multi-pronged approach to trying to eliminate alcohol-impaired driving. Four basic strategies are used to reduce impaired driving crashes and driving under the influence: 1. Deterrence: enact, publicize, enforce, and adjudicate laws prohibiting impaired driving so people choose not to drive impaired; 2. Prevention: reduce drinking and drug use to keep drivers from becoming impaired; 3. Communications and outreach: inform the public of the dangers of impaired driving and establish positive social norms that make driving while impaired unacceptable; and 4. Alcohol and drug treatment: reduce alcohol and drug dependency or addiction among drivers.77 NHTSA uses and encourages a variety of different behavioral strategies, focusing on those strategies that are demonstrably effective.78 Some strategies, like laws, enforcement, criminal prosecution, and offender treatment and monitoring, have a deterrent effect. Other strategies focus on prevention, intervention, communications, and outreach.79 C. NHTSA’s Authority lotter on DSK11XQN23PROD with PROPOSALS2 The National Traffic and Motor Vehicle Safety Act provides NHTSA with broad authority to address motor vehicle safety problems like driver impairment. Under the National Traffic and Motor Vehicle Safety Act (49 U.S.C. 30101 et seq.) (Safety Act), the Secretary of Transportation is responsible for prescribing motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms.80 ‘‘Motor vehicle safety’’ is defined in the Safety Act as ‘‘the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes nonoperational safety of a motor vehicle.’’ 81 ‘‘Motor vehicle safety standard’’ means a minimum standard for motor vehicle or motor vehicle 77 https://www.nhtsa.gov/book/countermeasures/ alcohol-and-drug-impaired-driving/strategiesreduce-impaired-driving. 78 See https://www.nhtsa.gov/book/ countermeasures/alcohol-and-drug-impaireddriving/countermeasures. 79 Id. 80 49 U.S.C. 30111(a). 81 49 U.S.C. 30102(a)(9). VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 equipment performance.82 When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information.83 The Secretary must also consider whether a proposed standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic crashes and associated deaths.84 The responsibility for promulgation of FMVSS is delegated to NHTSA.85 To meet the Safety Act’s requirement that standards be ‘‘practicable,’’ NHTSA must consider several factors, including technological and economic feasibility 86 and consumer acceptance.87 Technological feasibility considerations counsel against standards for which ‘‘many technical problems have been identified and no consensus exists for their resolution . . . .’’ 88 However, it does not require that the technology be developed, tested, and ready for deployment at the time the standard is promulgated. Economic feasibility considerations focus on whether the cost on industry to comply with the standard would be prohibitive. Finally, NHTSA must consider consumer acceptance. In particular, the U.S. Court of Appeals for the D.C. Circuit has noted that ‘‘motor vehicle safety standards cannot be considered practicable unless we know . . . that motorists will avail themselves of the safety system. And it would be difficult to term ‘practicable’ a system . . . that so annoyed motorists that they deactivated it.’’ 89 NHTSA also understands that if consumers do not accept a required safety technology, the 82 Section 30102(a)(10). 30111(b)(1). 84 Section 30111(b)(3)–(4). 85 49 CFR 1.95. 86 See, e.g., Paccar, Inc. v. Nat’l Highway Traffic Safety Admin., 573 F.2d 632, 634 n.5 (‘‘ ‘Practicable’ is defined to require consideration of all relevant factors, including technological ability to achieve the goal of a particular standard as well as consideration of economic factors.’’) (citations and quotations omitted). 87 Pac. Legal Found. v. Dep’t of Transp., 593 F.2d 1338, 1345 (D.C. Cir. 1979) (noting in reference to practicable and meet the need for safety, that ‘‘the agency cannot fulfill its statutory responsibility unless it considers popular reaction.’’). 88 Simms v. Nat’l Highway Traffic Safety Admin., 45 F.3d 999, 1011 (6th Cir. 1995). 89 Pac. Legal Found., 593.F.2d at 1346. The court also noted that the Secretary could reasonably anticipate consumers to be more willing to accept airbags than automatic seatbelts and seatbelt interlocks because airbags impose less on the driver and research indicated a lower deactivation rate for airbags than interlock systems. 83 Section PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 837 technology will not deliver the safety benefits that NHTSA anticipates.90 The Safety Act also contains a ‘‘make inoperative’’ provision, which prohibits certain entities from knowingly modifying or deactivating any part of a device or element of design installed in or on a motor vehicle in compliance with an applicable FMVSS.91 Those entities include vehicle manufacturers, distributors, dealers, rental companies, and repair businesses. Notably, the make inoperative prohibition does not apply to individual vehicle owners.92 While NHTSA encourages individual vehicle owners not to degrade the safety of their vehicles or equipment by removing, modifying, or deactivating a safety system, the Safety Act does not prohibit them from doing so. This creates a potential source of issues for solutions that lack consumer acceptance, since individual owners would not be prohibited by Federal law from removing or modifying those systems (i.e., using defeat mechanisms). Section 24220 of BIL, ‘‘Advanced Impaired Driving Technology,’’ 93 directs NHTSA to issue a final rule prescribing an FMVSS ‘‘that requires passenger motor vehicles manufactured after the effective date of that standard to be equipped with advanced drunk and impaired driving prevention technology.’’ 94 NHTSA is required to issue such a rule only if it would meet the criteria in section 30111 of the Safety Act.95 As explained above, those criteria include, among other things, that an FMVSS be objective, practicable, and meet the need for motor vehicle safety. In analyzing these criteria, NHTSA must balance benefits and costs and consider safety as the preeminent factor in its considerations.96 90 See, 82 FR 3854, 3920. Due to the nature of the technology, consumer acceptance was a key factor discussed in the 2017 NPRM on vehicle-to-vehicle (V2V) technology. NHTSA also conducted significant research into consumer acceptance and beliefs about V2V technology. 91 49 U.S.C. 30122. 92 Letter to Schaye (9/9/19) (‘‘The ‘‘make inoperative’’ provision does not apply vehicle owners, and these owners are not precluded from modifying their vehicle by NHTSA’s statutes or regulations. State and local laws, however, may impact whether an owner may use a vehicle they have modified in a particular jurisdiction.’’), available at https://www.nhtsa.gov/interpretations/ 571108-ama-schaye-front-color-changing-light. 93 Infrastructure Investment and Jobs Act, Public Law 117–58, section 24220 (2021). 94 Section 24220(c). 95 Section 24220(c), (e). 96 See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 55 (1983) (‘‘The agency is correct to look at the costs as well as the benefits of Standard 208 . . . When the agency reexamines its findings as to the likely increase in seat belt usage, it must E:\FR\FM\05JAP2.SGM Continued 05JAP2 838 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Section 24220 defines ‘‘Advanced Drunk and Impaired Driving Technology’’ as a system that (A) can— (i) passively monitor the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired; and (ii) prevent or limit motor vehicle operation if an impairment is detected; or (B) can— (i) passively and accurately detect whether the blood alcohol concentration of a driver of a motor vehicle is equal to or greater than the blood alcohol concentration described in section 163(a) of title 23, United States Code; and (ii) prevent or limit motor vehicle operation if a blood alcohol concentration above the legal limit is detected; or (C) is a combination of systems described in subparagraphs (A) and (B).97 This means that a final rule could require vehicles be equipped with a system that detects whether the driver is impaired (an impairment-detection system); a system that detects whether the driver’s BAC is above a specified threshold (a BAC-detection system); or a combination of these two systems. These options and the technology that might fulfill each option are discussed in greater detail later in this document. Section 24220 further requires that the ‘‘Advanced Drunk and Impaired Driving Technology’’ ‘‘passively’’ monitor performance or detect BAC. For the purposes of this advance notice of proposed rulemaking, NHTSA uses the term ‘‘passive’’ to mean that the system functions without direct action from vehicle occupants.98 As such, systems that require a ‘‘directed breath’’ towards a sensor, such as the current DADSS reference designs (discussed later in this also reconsider its judgment of the reasonableness of the monetary and other costs associated with the standard. In reaching its judgment, NHTSA should bear in mind that Congress intended safety to be the preeminent factor under the Motor Vehicle Safety Act.’’). 97 Section 24220(b). 98 FMVSS Nos. 208, ‘‘Occupant crash protection,’’ and 212, ‘‘Windshield mounting,’’ use a similar definition for completely passive protection systems for occupants. 49 CFR 571.208, 571.212. DADSS has also viewed the term similarly. See Report to Congress on Progress In-Vehicle Alcohol Detection Research, October 1, 2019 through September 30, 2020. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 document) or a breathalyzer that a driver must breathe into in order for the system to detect alcohol would not be considered ‘‘passive’’ because these designs require a vehicle occupant to take direct action (i.e., directed breath) for the system to function. Section 24220 does not require that a final rule give manufacturers the option of choosing between an impairmentdetection and a BAC-detection system. NHTSA understands the term ‘‘impairment,’’ for the purposes of section 24220, to refer to alcohol-related impairment as well as other types of driver impairment. Of course, regardless of how the term ‘‘impairment’’ is construed for the purposes of section 24220, NHTSA also has the authority under the Safety Act to issue an FMVSS addressing any type of driver impairment if the standard would satisfy the criteria in section 30111 of the Safety Act. The new FMVSS would be required to apply to new vehicles that carry 12 or fewer individuals, not including motorcycles or trucks not designed primarily to carry its operator or passengers.99 BIL also establishes a series of deadlines and requirements for NHTSA to report to Congress if those deadlines are not met. The legislation directs NHTSA to issue a final rule (if it would meet the section 30111 criteria) not later than November 15, 2024. If NHTSA does not issue a rule by this date, it must submit a report to Congress explaining (among other things) the reasons for not issuing a final rule.100 NHTSA must submit such reports annually until it issues a final rule or ten years has expired, from the date of enactment, whichever comes first.101 99 Section 24220 (b)(3), referring to 49 U.S.C. 32101(consumer information statutes). 100 Section 24220 (e)(2). The report must also describe the deployment of advanced drunk and impaired driving prevention technology in vehicles, any information relating to the ability of vehicle manufacturers to include advanced drunk and impaired driving prevention technology in new passenger motor vehicles, and an anticipated timeline for prescribing the Federal motor vehicle safety standard. 101 Section 24220 (e)(2)–(3). If, after ten years, NHTSA has not promulgated the FMVSS required by this subsection, the report must state the reasons why the FMVSS was not finalized, the barriers to finalizing the FMVSS, and recommendations to Congress to facilitate the FMVSS. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 III. Advanced Drunk and Impaired Driving Prevention Safety Problem The overall safety problem caused by various types of states of impaired driving is substantial, and those impaired states are part of the causal chain for a large percentage of crashes in the United States. A recent NHTSA report, ‘‘The Economic and Societal Impact of Motor Vehicle Crashes (2019),’’ reviewed 2019 data and described the state of safety prior to the COVID–19 pandemic.102 In 2019, the lost lives and costs on our society stemming from motor vehicle crashes were enormous—36,500 people were killed, 4.5 million people were injured, and the economic costs of these crashes totaled $340 billion. Of this $340 billion, nearly half ($167 billion) resulted from alcohol-involved and distracted-driving crashes alone. Furthermore, the overall safety problem has only gotten worse during the COVID–19 pandemic, as NHTSA has confirmed that the increases in fatalities, injuries, and risky driving that the country experienced in 2020 continued through the first two quarters of 2022.103 Recent first quarter projections for traffic fatalities in 2023 104 have reversed the trend, with NHTSA estimating an overall fatality decrease of about 3.3 percent as compared to the same time period in 2022. The second quarter of 2023 would represent the fifth straight quarterly decline in fatalities after seven consecutive quarters of year-to-year increases in fatalities, beginning with the third quarter of 2020. Please see Graph 2. Fatalities by Quarter 105 below. While this is encouraging overall, far too many people continue to die on our roads every year, and drunk and impaired driving crashes still result in significant numbers of those lives lost. 102 Blincoe, L., Miller, T., Wang, J.S., Swedler, D., Coughlin, T., Lawrence, B., Guo, F. Klauer, S., & Dingus, T. (2023, February). The economic and societal impact of motor vehicle crashes, 2019 (Revised) (Report No. DOT HS 813 403). National Highway Traffic Safety Administration. 103 See, for example, NHTSA Estimates: Traffic Deaths Third Quarter of 2022 | NHTSA. 104 Crash Stats: Early Estimate of Motor Vehicle Traffic Fatalities for the First Quarter of 2023 (dot.gov) 105 NHTSA (2023). Early Estimate of Motor Vehicle Traffic Fatalities for the First Half (January– June) of 2023. Report No. DOT HS 813 514. National Highway Traffic Safety Administration: Washington, DC. (September) E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules 839 Graph 2. Fatalities by Quarter Fatalities by Quarter (Total and Year~over~Year Change) 25.Mli 20.Mli 1.5.°" 10.0% S.mii O.mii ~5.mii The introduction to this advance notice of proposed rulemaking states that NHTSA is considering focusing primarily on alcohol impairment, both because of the mandate in the BIL and because alcohol impairment has the tangible strategies developed to identify it. But the agency requests comment on this focus because of the danger that other impaired states cause during the driving task and because some options described in later sections provide the opportunity to resolve multiple states of impairment with the same technological solution. In this section, NHTSA will discuss the drunk, drowsy, and distracted driving states that account for most of the fatalities and crashes related to impaired driving. NHTSA has presented the safety problem in this way because the agency is interested in proceeding with whatever practical course of action results in the most lives saved and injuries prevented in the shortest amount of time, regardless of what impaired driving state is the root cause. Additionally, NHTSA believes the public should be aware of the overall safety problem associated with driver impairment so that it may have adequate information when responding to NHTSA’s questions about whether focusing on alcohol-impairment is the best path forward to achieve improved motor vehicle safety and protect the public from the complex behavioral issues that result in driver impairment. For this analysis, we consider the three categories of impaired driving VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 safety impacts most likely to be ameliorated by a safety countermeasure arising from this ANPRM: drunk driving, drowsy driving, and distracted driving. As mentioned in the introduction, NHTSA hopes that the agency’s approach may yield additional safety benefits by considering all technologies that have the potential to mitigate or prevent impaired driving fatalities and injuries. The safety data on drunk driving, and the confidence in those data, are much more substantial than data on other types of impaired driving, and drunk driving results in serious loss of life, injury, and economic costs to the public. This section will present estimates of annual fatalities and injuries due to drunk, drowsy, and distracted driving. It is also worth noting that in other recent rulemakings, NHTSA decided not to use post-2019 data because the agency was not yet sure whether the disturbing uptick in crashes and fatalities was an anomaly or a trend that reflects a change in vehicle safety that would remain for more than one year or the foreseeable future. Analysis since the issuance of previous documents indicates that data from 2020 and 2021 highlight a potentially dangerous trend in the United States of an increase in motor vehicle crashes and fatalities, which is why this advance notice of proposed rulemaking differs from other documents issued in the recent past in citing post-2019 data. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 A. Drunk Driving Per FARS, in 2021 there were 13,384 traffic fatalities in which at least one driver had a BAC at or above .08 g/dL, (representing approximately 31 percent of all traffic fatalities in the United States). NHTSA’s process for identifying fatalities due to drunk driving begins by acknowledging that not all alcoholrelated motor vehicle fatalities and injuries are caused by alcohol consumption. In NHTSA’s fatality numbers reported in FARS, use of the term ‘‘alcohol-impaired’’ does not indicate that a crash or a fatality was caused by alcohol impairment, only that an alcohol-impaired driver was involved in the crash. That is, some of the crashes may have involved causative factors other than alcohol (e.g., one or multiple drivers or vehicles associated with speeding, reckless behavior, or mechanical failure). Critically for this advance notice of proposed rulemaking, NHTSA’s analysis has applied Blomberg et al.’s risk factors to estimate that alcohol is indeed a causal factor in 94 percent of crashes involving at least one driver with a BAC at or above .08 g/dL.106 Thus, the agency estimates that, among all crashes, fatalities, and injuries involving drivers that have a BAC at or above .08 g/dL, 94 percent of them are due directly to 106 Blincoe et al., 2023 Blomberg, R., Peck, R.C., Moskowitz, H., Burns, M., & Fiorentino, D. (2005, September). Crash risk of alcohol-involved driving: A case-control study. Dunlap and Associates; Blincoe et al., 2023. E:\FR\FM\05JAP2.SGM 05JAP2 EP05JA24.002</GPH> lotter on DSK11XQN23PROD with PROPOSALS2 ~10.(M 840 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules alcohol consumption and are thus within the scope of impaired driving countermeasures that would focus on the legal limit in most States (.08 g/dL). This yields an estimate of approximately 12,581 fatalities in 2021 due to alcohol impairment. At an estimated comprehensive economic cost of approximately $12.7 million per fatality (adjusted to 2022 dollars using the GDP Implicit Price Deflator 107 108), fatalities in alcohol impairment-related crashes were associated with societal safety costs of approximately $160 billion in 2021. B. Distracted Driving Historically, distracted driving crashes have been more difficult to quantify than drunk driving crashes because unlike BAC, distraction cannot yet be tested for objectively post-crash. However, Blincoe et al. developed and implemented a methodology to estimate both: (1) underreporting of cases involving distraction; and (2) the shares of crashes, fatalities, and injuries caused by distraction.109 NHTSA applies the results of Blincoe et al. here to 2021 FARS data to estimate fatalities in 2021 due to distracted driving. Blincoe et al. estimate that 28.9 percent of all crashes (and injuries of all severities within crashes) are due to distraction. Based on this estimate, the agency estimates that distracted driving caused 12,405 fatalities in 2021. This represents a societal safety cost of approximately $158 billion, an economic estimate of the loss of life. Dingus et al. report that approximately seven percent of cases of distraction also involve some form of impairment. In turn, it is appropriate to assume that there is at least some degree of overlap among drunk driving and distracted driving fatalities. Thus, the combined safety problem associated with drunk driving and distracted driving is likely to be somewhat smaller than the sum of the individual estimates above (i.e., distracted driving fatalities in 2021 not jointly caused by alcohol would be up to 7% lower than the estimate of 12,405 fatalities above). lotter on DSK11XQN23PROD with PROPOSALS2 C. Drowsy Driving Drowsy driving is more difficult to quantify than drunk driving because, among other factors, there is not currently an accepted standard definition of drowsiness in a driving context, nor a threshold to define drowsiness as a causal factor in motor 107 Blincoe et al., 2023. 108 https://fred.stlouisfed.org/series/ USAGDPDEFAISMEI. 109 Blincoe et al., 2023. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 vehicle crashes. In turn, the level of drowsiness-related crashes and injuries is subject to faulty measurement, with underreporting more likely than overreporting. In defining the drowsy driving safety problem, NHTSA begins with estimates based on police-reported drowsiness as a contributing factor, and then considers external estimates of underreporting. To estimate fatalities in 2021 associated with drowsy driving, the agency analyzes fatalities reported in FARS in which at least one driver was reported as asleep or drowsy: this revealed 684 fatalities, or approximately 1.6 percent of total annual fatalities. Applying estimates of the comprehensive economic costs of injury from the last section, NHTSA estimates that reported fatalities associated with drowsy driving in 2021 represent a social cost of approximately $9 billion. NHTSA’s annual estimates of fatalities associated with drowsy driving are consistent with other NHTSA estimates (e.g., annual drowsinessrelated fatality estimates in NHTSA’s ‘‘Drowsy Driving 2015’’).110 111 However, the estimates are lower than other external estimates, such as Tefft, which estimates that one-sixth of traffic fatalities are associated with drowsiness,112 and Owens et. al which estimates that approximately one-tenth of police-reportable crashes are associated with drowsiness.113 NHTSA does not have sufficient evidence regarding underreporting. On the other hand, consistent with the discussion of drowsiness-related crashes and acknowledges that underreporting distracted driving above, it is a feasible constraint to estimating the scale of the that at least some fatalities caused by drowsy driving safety problem. are also caused by alcohol impairment or distraction (furthermore, the drowsiness itself could be caused by drinking, and the distraction itself could be caused by drowsiness). For this analysis, the agency applies its estimate as a conservative estimate of a significant 110 National Center for Statistics and Analysis. (2017 October). Drowsy Driving 2015 (CrashStats Brief Statistical Summary. Report No. DOT HS 812 446). Washington, DC: National Highway Traffic Safety Administration. 111 Knipling, R. & Wang, J. (1994). Crashes and fatalities related to driver drowsiness/fatigue. Washington, DC: National Highway Traffic Safety Administration. 112 Tefft, B. (2010). The Prevalence and Impact of Drowsy Driving (Technical Report). Washington, DC: AAA Foundation for Traffic Safety. 113 Owens, J.M., Dingus, T.A.. Guo, F., Fang, Y., Perez, M., McClafferty, J., & Tefft, B.C. (2018). Prevalence of Drowsy Driving Crashes: Estimates from a Large-Scale Naturalistic Driving Study (Research Brief). Washington, DC: AAA Foundation for Traffic Safety. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 safety issue (i.e., NHTSA expects the true annual safety costs associated with drowsy driving to be at least as large as estimated here). The agency requests comment and data regarding underreporting of drowsy driving, and interdependencies among drunk driving, distracted driving, and drowsy driving. IV. Overview of Current Efforts To Address Drunk and Impaired Driving NHTSA has a robust portfolio of behavioral-prevention and vehicleresearch activities focused on preventing drunk and impaired driving. NHTSA believes that the combination of these strategies (i.e., behavioral strategies and vehicle-based countermeasures) is necessary to move towards a nation where alcoholimpaired individuals are unable to drive vehicles and put the lives of everyone around them at risk by doing so. As discussed in the introduction, one of the effects that leads drivers to take such unacceptable risks when intoxicated is alcohol’s impact on their brain, especially in impairing judgment. A. State and Federal Behavioral Prevention Activities Behavioral prevention activities are public-oriented strategies intended to change the behaviors that lead to drunk and impaired driving. This is distinguished from vehicle-based countermeasures, which are discussed later in this document. To develop and implement these behavioral strategies, NHTSA collaborates with a wide array of national, regional, State, and local traffic safety partners, including those in the following sectors: public safety and criminal justice; medical, public health and emergency services; educators; parents; non-profits; traffic safety organizations; and academic institutions. More recently, NHTSA has expanded these partnerships to include substance use prevention, mental health, and overall wellness efforts as part an overall approach to address issues that lead to drunk and impaired driving. NHTSA’s behavioral prevention activities can be categorized into three main areas. First, NHTSA conducts research to identify the scope of the issue and develop effective evidencebased strategies to address the behaviors that lead to drunk and impaired driving. Second, NHTSA distributes Federal grant funds to individual States, and these funds are used for behavioral strategies.114 Each State is required to 114 See, e.g., 23 U.S.C. 402 (fund that can be used for any purpose); 23 U.S.C. 405(d) (priority funds, E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules have a highway safety program, approved by the Secretary of Transportation, that is designed to reduce traffic crashes and the resulting deaths, injuries, and property damage. NHTSA provides grants to each State for their highway safety program as well as funds to address national priorities for reducing highway deaths and injuries, such as impaired driving programs. Third, NHTSA works directly with States and other stakeholders to develop, implement, and support effective programs and strategies to stop drunk and impaired driving. This includes demonstration projects, training and education for traffic safety professionals, and communications campaigns to educate the public. NHTSA also helps States use data to identify their highway safety needs and evaluate safety programs and activities, and the agency provides technical assistance and training to State program managers. Below we briefly discuss four of the main drunk and impaired driving behavioral strategies that help us execute our three main areas mentioned above: Deterrence; Prevention; Communications and outreach; and alcohol and drug treatment programs.115 1. Deterrence lotter on DSK11XQN23PROD with PROPOSALS2 Deterrence includes enacting laws that prohibit drunk and impaired driving, publicizing and enforcing those laws, and identifying and punishing offenders.116 Deterrence works by changing a driver’s behavior through concern for the consequences of certain behaviors, such as being apprehended by law enforcement. Below we provide a brief overview of activities in these areas with respect to drunk and impaired driving, with a focus on State and Federal drunk driving laws and NHTSA’s efforts to support and develop training and best practices for law enforcement, prosecutors, judges, and specifically for impaired driving); 23 U.S.C. 154 (open container); 23 U.S.C. 164 (repeat offender). 115 See Venkatraman, V., Richard, C.M., Magee, K., & Johnson, K. (2021, July). Countermeasures that work: A highway safety countermeasures guide for State Highway Safety Offices, 10th edition, 2020 (Report No. DOT HS 813 097). National Highway Traffic Safety Administration. (hereinafter Countermeasures that work). Vehicle and infrastructure strategies can also reduce the likelihood of crashes and/or injuries sustained by impaired drivers and passengers, such as improved vehicle structures and centerline rumble strips and barriers. These countermeasures are outside the scope of this discussion. 116 Venkatraman, V., Richard, C.M., Magee, K., & Johnson, K. (2021, July). Countermeasures that work: A highway safety countermeasures guide for State Highway Safety Offices, 10th edition, 2020 (Report No. DOT HS 813 097). National Highway Traffic Safety Administration. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 other public safety and criminal justice partners. a. State and Federal Drunk Driving Laws State laws, as well as Federal law governing the use of motor vehicles on Federally owned land, prohibit operation of a motor vehicle when the driver is at or exceeds the state’s per se illegal limit (i.e., BAC of .08 g/dL in all states, except Utah which has a .05 g/ dL illegal limit). All States have enacted drunk driving laws. Some of these laws have been incentivized by Federal law, because significant portions of the Federal funds available to the States, including State Highway funds, are conditioned on a State enacting and enforcing specific laws related to drunk driving. This includes laws prohibiting operation of a motor vehicle with a BAC of .08 percent or greater; 117 laws prohibiting individuals under the age of 21 from operating a motor vehicle with a BAC of .02 percent or greater (zero-tolerance laws); 118 laws setting a minimum drinking age of 21; 119 and laws prohibiting possession of open alcohol beverage containers and consumption of alcohol in a vehicle (open-container laws).120 If a State does not have the required laws, it loses significant funding to which it would otherwise be entitled. Accordingly, all States have enacted such laws.121 Many States have also gone above and beyond the Federally-incentivized laws. For instance, on December 30, 2018, Utah lowered its BAC threshold to .05 g/dL for all drivers. Examples of other laws States have enacted include driver license revocation or suspension if drivers fail or refuse to take BAC tests, and increased penalties for repeat offenders or for offenders with higher BACs. The National Transportation Safety Board (NTSB) has recently recommended that NHTSA seek legislative authority to award incentive grants for States to establish a per se BAC limit of .05 or lower for all drivers who are not already required to adhere to lower BAC limits.122 In response to this recommendation, NHTSA published the results of preliminary 117 23 U.S.C. 163. U.S.C. 161. 119 23 U.S.C. 158. 120 23 U.S.C. 154. 121 See https://www.ghsa.org/state-laws/issues/ alcohol%20impaired%20driving (last accessed January 5, 2023); https://www.ncsl.org/research/ transportation/drunken-driving.aspx (last accessed January 5, 2023). 122 https://www.ntsb.gov/safety/safety-studies/ Documents/SR1301.pdf. 118 23 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 841 research on the effects of Utah’s law.123 This research suggests that the .05 g/dL per se law has had quantifiable positive impacts on highway safety in Utah so that lower BAC thresholds may be effective in further reducing alcoholinvolved crashes. In addition to these State laws, Federal regulations prohibit drunk driving on Federal lands.124 An individual may not operate a motor vehicle on Federal land if they are unable to safely operate the vehicle due to the influence of alcohol or other drugs, or if their BAC is .08 g/dL or greater.125 The law also authorizes testing of three bodily fluids: blood, saliva, and urine. It includes stipulations around proper administration of accepted scientific methods and equipment used by certified personnel, noting that for blood sample testing, there are further restrictions whereby normally a search warrant is required from an authorized individual. b. Training and Best Practices for Law Enforcement, Prosecutors, Judges, and Other Public Safety and Criminal Justice Partners NHTSA actively supports efforts to develop training and best practices for law enforcement, prosecutors, judges, and other public safety and criminal justice partners regarding the detection, prosecution, and adjudication of drunk and impaired driving. A brief sampling of NHTSA’s work in this area includes the following: Development and application of field sobriety tests. In the mid-1970s NHTSA, with the cooperation and assistance of the law enforcement community, conducted research that resulted in a standardized battery of three field sobriety tests (the horizontal gaze nystagmus test; the walk-and-turn test; and the one-leg stand test). Police officers use these tests to help establish probable cause for a driving while intoxicated (DWI 126) arrest. Standards for alcohol breath-test devices. Evidential breath test devices conform to established specifications and can be used as evidence in court. NHTSA publishes standard specifications for evidential breath-test devices, and a ‘‘Conforming Products List’’ of alcohol testing and screening 123 Thomas, F.D., Blomberg R., Darrah, J., Graham, L., Southcott, T., Dennert, R., Taylor, E., Treffers, R., Tippetts, S., McKnight, S., & Berning, A. (2022, February). Evaluation of Utah’s .05 BAC per se law. DOT HS 813 233. NHTSA. 124 36 CFR 4.23. 125 If State law establishes more restrictive BAC limits, those more restrictive limits supersede the .08 g/dL limit specified in the Federal regulations. 126 DWI and DUI are used interchangeably throughout this document. E:\FR\FM\05JAP2.SGM 05JAP2 lotter on DSK11XQN23PROD with PROPOSALS2 842 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules devices.127 Law enforcement officers use the totality of the evidence in determining whether sufficient probable cause exists to effectuate an arrest for drunk driving. This includes observation of the vehicle in motion, results of the standardized field sobriety tests, and other information to establish probable cause. An officer may use a preliminary or evidential breath test device to measure BrAC. A suspect may also be requested to provide a blood or urine sample. Arrest and crash reporting. NHTSA provides training on arrest and crash reporting to law enforcement so that the data collected during a traffic stop or arrest, or at the scene of a crash, is uniform, clear, and concise. Training curriculum development for law enforcement, prosecutors, judges, and other public safety and criminal justice partners. Through cooperative agreements and partnerships, NHTSA supports training for law enforcement, prosecutors, judges, and other public safety and criminal justice partners. For example, NHTSA provides (through a cooperative agreement with the International Association of Chiefs of Police) funding for curricula development and management of programs developed to train law enforcement in detecting, investigating, and apprehending impaired drivers. NHTSA also provides the law enforcement community with resources to carry out local DWI programs, such as supplying laminated pocket guides for the standard field sobriety tests to aid officers. Through partnerships with national law enforcement organizations such as the National Criminal Justice Training Center, NHTSA maintains a wide reach when providing these resources. NHTSA also helps ensure that organizations representing prosecutors, judges, and pretrial, parole, supervision, and probation officers have accurate and up-to-date information about the harm caused by impaired driving, the crash risk of various impairing substances, and evidence-based sanction and treatment options. For example, NHTSA has cooperative agreements with the National Traffic Law Center and the National Association of Prosecutor Coordinators to develop curricula and provide training to prosecutors working on impaired driving cases. Through these agreements, NHTSA provides prosecutors with information on relevant case law, monographs on 127 Federal Register/Vol. 58, No. 179/pp 48705– 48710/Friday, September 17,1993/Notices (58 FR 48705) Federal Register/Vol. 77, No. 115/pp 35745– 35750/Thursday, June 14, 2012/Notices (77 FR 35745, 77 FR 35747). VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 various legal issues, an expert witness database, training courses, and peer-topeer support from Traffic Safety Resource Prosecutors (TSRP) in each State. The TSRP Program trains current and former prosecutors to become instructors for traffic crimes prosecutors and law enforcement personnel.128 This facilitates a coordinated, multidisciplinary approach to the prosecution of drunk and impaired driving. NHTSA also funds training through the National Judicial College on (among other things) evidence-based sentencing and supervision practices, toxicology, the use of ignition interlocks, and DWI Courts. NHTSA also funds the American Bar Association to conduct the Judicial Outreach Liaison program providing trial judges with current evidence-based practices, peer-to-peer judicial education, a liaison to the broader highway safety community. Based on these models, NHTSA is also piloting similar education programs for pretrial, probation, parole, and supervision professionals 129 and toxicologists. 2. Prevention Prevention strategies reduce impaired driving by reducing use of impairing substances or preventing driving by people who have been drinking or using other drugs. There are a variety of prevention countermeasures. Below we discuss the main ones. a. Alcohol Ignition Interlocks One impaired driving prevention strategy is requiring the installation of alcohol ignition interlocks. Ignition interlocks are devices that measure the driver’s BrAC and prevent the vehicle from starting if it exceeds a pre-set level (usually .02 g/dL). Interlocks are highly effective in allowing vehicles to be started by sober drivers, but not by alcohol-impaired drivers. Alcohol ignition interlocks are typically used as a condition of probation for DWI offenders after their driver’s licenses have been reinstated. Forty-four States require the devices for repeat, highBAC, or all offenders.130 There is evidence that requiring interlocks for driving under the influence (DUI) offenders helps reduce recidivism. NHTSA evaluated the New Mexico Ignition Interlock program in 128 https://www.nhtsa.gov/sites/nhtsa.gov/files/ documents/12323_tsrpmanual_092216_v3-tag.pdf. 129 https://www.appa-net.org/idarc/trainingfaculty.html. 130 https://www.ncsl.org/research/transportation/ state-ignition-interlock-laws.aspx. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 2010 131 and found that alcohol-sensing technology in vehicles can be successfully deployed to protect the public from alcohol-impaired drivers and that recidivism rates can be reduced if penetration of these devices is sufficient. In 2015, NHTSA reported on interlock use in 28 States.132 This 2015 report identified important program elements for States to achieve and sustain high interlock use rates including: strong interlock requirements and incentives coupled with effective penalties for non-compliance; strong program management involving monitoring, uniformity, coordination, and education; and data and resources to support program management and to evaluate changes in program design. A more recent study found that laws mandating alcohol ignition interlocks, especially those covering all offenders, are an effective alcohol-impaired driving countermeasure that reduces the number of alcohol-impaired drivers in fatal crashes.133 NHTSA has also conducted research, developed model specifications, and provided information and funding to improve State ignition interlock programs. NHTSA research on ignition interlocks dates back to early studies on the increased likelihood for DWI offenders to be involved in fatal crashes while intoxicated.134 Based on research that license suspension alone did not keep DWI offenders from driving, NHTSA conducted research into performance-based interlocks that could prevent a drunk driver from starting the vehicle.135 NHTSA also drafted and revised model specifications for interlock devices. These specifications have developed over time and are published in the Federal Register as guidelines for State interlock programs.136 NHTSA has published an 131 Evaluation of the New Mexico Ignition Interlock Program (2010). DOT HS 811 410. 132 Evaluation of State Ignition Interlock Programs: Interlock Use Analyses from 28 States, 2006–2011 (2015) DOT HS 812 145. 133 Teoh, Eric R./Fell, James C./Scherer, Michael/ Wolfe, Danielle E.R., State alcohol ignition interlock laws and fatal crashes, Traffic Injury Prevention (TIP), October 2021. 134 Hedlund, J., & Fell, J. (1995). Persistent drinking drivers in the U.S., 39th Annual Proceedings of the Association for the Advancement of Automotive Medicine, October 16– 18, 1995, Chicago, IL (pp. 1–12). Des Plaines, IL: Association for the Advancement of Automotive Medicine. 135 This research also considered impairment including drugs and drowsiness. 136 78 FR 26849 (May 8, 2013), available at https://www.volpe.dot.gov/sites/volpe.dot.gov/files/ docs/Breath%20Alcohol%20Ignition%20 Interlock%20Device%20%28BAIID%29%20 Model%20Specifications.pdf. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules ignition interlock toolkit,137 a program guide on key features for ignition interlock programs,138 and various case studies and evaluation reports.139 NHTSA continues to fund the Association of Ignition Interlock Program Administrators.140 As discussed later in greater detail, since 2008 NHTSA has participated in and helped fund a cooperative research program, known as DADSS, which is developing next-generation vehicle alcohol detection technologies. b. Designated Driver and Alternative Transportation Programs lotter on DSK11XQN23PROD with PROPOSALS2 NHTSA also supports designated driver and alternative transportation programs as another avenue for preventing impaired driving. Designated driver programs encourage drinkers to include someone in their party who does not drink and will be able to provide a safe ride home. Some designated-driver programs provide incentives such as free soft drinks for designated drivers. Mass-media campaigns—such as the NHTSAsponsored Ad Council campaign ‘‘Friends Don’t Let Friends Drive Drunk’’—seek to raise awareness and promote the use of these programs. Alternative transportation programs offer methods people can use to get to and from places where they drink without having to drive. This includes public transportation (such as subways and buses) as well as for-profit and nonprofit ‘‘safe rides.’’ For-profit safe rides include transportation network companies that are on-demand and may be accessed through a mobile application. Nonprofit safe-ride programs are free to patrons or charge minimal fees and often operate in specific regions or at specific times such as weekends and holidays when impaired crashes occur at higher rates. Several States fund alternative transportation as part of their impaired driving prevention efforts. 137 https://www.nhtsa.gov/sites/nhtsa.gov/files/ documents/ignitioninterlocks_811883_112619.pdf. This is a toolkit for policymakers, highway safety professionals and advocates that brings together resources that explain and support the use of alcohol ignition interlocks, identifies issues faced by ignition interlock programs and includes information on the use of interlocks in each State and the District of Columbia. It is designed to advance the understanding of ignition interlock technology, improving its application as an effective strategy to save lives and prevent impaired driving injuries. 138 https://www.nhtsa.gov/sites/nhtsa.gov/files/ 811262.pdf. 139 See, e.g., https://rosap.ntl.bts.gov/view/dot/ 1909. 140 https://aiipaonline.org/. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 843 c. Alcohol Sales and Service Regulations/Programs Another common strategy to prevent impaired driving are regulations and programs that target the point at which alcoholic beverages are sold. Responsible beverage service programs cover alcohol sales policies and practices that prevent or discourage restaurant or bar patrons from drinking excessively or from driving while impaired by alcohol. NHTSA supports server training programs to teach servers how to recognize the signs of intoxication, how to prevent intoxicated patrons from further drinking and from driving, as well as bar and restaurant management policies to reduce impaired driving. educate the public about the impairing effects of alcohol and drugs and the dangers they pose to drivers of all ages. NHTSA produces a communications calendar annually with details about specific campaign and enforcement periods, holidays, and other notable events during which time there may be increased dissemination of campaign messages and coordinated law enforcement efforts at the State and local level. Campaign materials are made accessible to the public and stakeholders online at Traffic Safety Marketing (TSM).144 These communications efforts can be divided into two categories: high-visibility enforcement and social norming campaigns. d. Underage Impaired Driving Prevention One particular focus of prevention strategies is preventing underage impaired driving. Teenagers drink and drive less often than adults but are more likely to crash when they do drink and drive.141 While many of the prevention strategies discussed above apply both to adults and teenagers, NHTSA supports several prevention strategies directed specifically to those under the age of 21. NHTSA publishes fact sheets,142 research, and funded program guides 143 on teen traffic safety and effective practices to reduce teen impaired driving. NHTSA also partners with youth advocacy organizations as well as primary and secondary education organizations to provide youth-focused impaired driving prevention education, messages, teacher resources, and educational materials for drivers of all ages. Furthermore, NHTSA partners with driver educators to teach teen and novice drivers about the dangers of impaired driving and to develop driver education standards. a. High-Visibility Enforcement Campaigns High-visibility enforcement campaigns coordinate highly visible and proactive law enforcement activities with public service messages highlighting the dangers of impaired driving and the enhanced enforcement efforts. NHTSA runs two national highvisibility impaired driving campaigns each year—one in August, leading up to and including Labor Day weekend, and one in December, during the winter holiday period. High-visibility enforcement campaigns include national media segments that air on TV and radio as well as digital media in English and Spanish. Both campaigns include national paid media buys incorporating both an alcohol-impaired driving message (Drive Sober or Get Pulled Over) and a drug-impaired driving message (If You Feel Different, You Drive Different. Drive High, Get a DUI). These campaign assets are available at no cost for States, regions, and other stakeholders to download and use during applicable campaign periods. During each campaign timeframe, NHTSA encourages law enforcement and other State agencies to use the provided assets on social media. State leaders can also engage with the local news media to expand awareness of the campaigns and associated messages. Each campaign period comes with information on how to conduct Media Buys, and its reports on the number of impressions made. 3. Communications Campaigns Public service messaging and coordinated enforcement are also important behavioral strategies. Communications campaigns inform the public of the dangers of impaired driving and promote positive social norms of not driving while impaired. NHTSA coordinates with States and other traffic safety stakeholders to 141 Bingham CR, Shope JT, Parow JE, Raghunathan TE. Crash types: markers of increased risk of alcohol-involved crashes among teen drivers. J Stud Alcohol Drugs. 2009 Jul;70(4):528–35. doi: 10.15288/jsad.2009.70.528. PMID: 19515292; PMCID: PMC2696293. 142 https://crashstats.nhtsa.dot.gov/Api/Public/ ViewPublication/813313. 143 See e.g., https://www.ghsa.org/resources/Peerto-Peer19. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 b. Social-Norming Campaigns Communications efforts are not limited to high-visibility enforcement campaigns but also continue throughout the year. For instance, NHTSA has public service announcement campaigns that rely on donated time 144 https://www.trafficsafetymarketing.gov/. E:\FR\FM\05JAP2.SGM 05JAP2 lotter on DSK11XQN23PROD with PROPOSALS2 844 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules and space from various media outlets throughout the nation. The main message for alcohol-impaired driving is ‘‘Buzzed Driving is Drunk Driving,’’ and the main message for drug-impaired driving is ‘‘If you Feel Different, You Drive Different.’’ NHTSA works with the Ad Council to produce campaign resources (TV, radio, digital, print, and outdoor advertising) and distributes them to organizations that donate time and space to support campaign messaging. training for both new and existing DWI Courts, fund technology for the expansion of reach to underserved populations, and fund services (e.g., treatment) to high-risk/high-need offenders.146 There is evidence that DWI courts have greater success in changing driver behavior compared to traditional court processes and sanctions. A 2011 evaluation by NHTSA of three Georgia DUI Courts found substantial reductions in recidivism for repeat DUI offenders.147 4. Alcohol and Drug Treatment, Monitoring, and Control Treatment for substance use is another major strategy to address the behaviors leading to drunk and impaired driving. It is widely recognized that many DWI first offenders and most repeat offenders meet criteria for an alcohol use disorder and are likely to continue to drink and drive unless the underlying substance use disorder is addressed. DWI arrests provide an opportunity to identify offenders with alcohol use problems, and as part of a plea bargain or diversion program, refer them to treatment in addition to imposing sanctions. NHTSA endorses the use of the Substance Abuse and Mental Health Services Administration’s Screening, Brief Intervention and Referral to Treatment (SBIRT) approach. This is a comprehensive, integrated, public health approach to the delivery of early intervention and treatment services for persons with substance use disorders, as well as those who are at risk of developing these disorders.145 To help States use an SBIRT approach NHTSA funded the American Probation and Parole Association to develop the Impaired Driving Assessment. This tool provides a framework for screening impaired drivers, estimating their risk for future impaired driving, and assessing responsivity to intervention efforts, among other things. NHTSA also encourages States and jurisdictions to establish DWI courts. DWI courts are specialized, comprehensive programs providing treatment, supervision, and accountability for repeat DWI offenders. These courts follow the well-established drug court model and are usually aimed at drivers with prior DWI offenses or those with BACs of .15 g/dL or higher. In 2019, NHTSA entered into a cooperative agreement with the National Center for DWI Courts to develop the 10 Guiding Principles for DWI Courts document, provide education and B. Vehicle-Based Countermeasures While the previous section discussed the various behavioral efforts that NHTSA has engaged in, NHTSA is conducting complementary research on vehicle safety technologies that have the potential to prevent or mitigate drunk and impaired driving. The behavioral campaigns and the vehicle-based countermeasures are part of NHTSA’s dynamic strategy to achieve zero fatalities related to driver impairment. 1. Summary of Research on VehicleBased Countermeasures This section summarizes five major research efforts focused on vehicle safety technologies: (1) Driver Alcohol Detection System for Safety, (2) Driver Monitoring of Inattention and Impairment Using Vehicle Equipment, (3) NHTSA’s Request for Information, (4) Technology Scans, and (5) Additional ongoing research. a. Driver Alcohol Detection System for Safety NHTSA has been conducting research to understand ways to detect driver impairment. A major research program is DADSS. NHTSA began the DADSS Program in 2008 through a Cooperative Agreement between the Agency and the Automotive Coalition for Traffic Safety (ACTS) to develop non-invasive technology to prevent alcohol-impaired driving by measuring blood or breath alcohol accurately, precisely, and rapidly. Exploratory research in early phases of the program established the feasibility of two sensor approaches for in-vehicle use: breath- and touch-based. Since then, there have been significant advances in sensor hardware and software development, as the program works toward meeting high-performance standards required for passive, accurate, and reliable alcohol measurement. There are two technology approaches under development for DADSS, and both use infrared spectroscopy to measure a driver’s alcohol 146 https://rosap.ntl.bts.gov/view/dot/2055. 145 https://www.samhsa.gov/sbirt. VerDate Sep<11>2014 18:20 Jan 04, 2024 147 https://rosap.ntl.bts.gov/view/dot/2055. Jkt 262001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 concentration. The DADSS touch sensor measures the BAC in the capillary blood in the dermis layer of the skin on the palmar side of a driver’s hand. A touch pad with an optical module could be integrated into an ignition switch or steering wheel. When the driver touches the steering wheel or ignition switch, a near infrared light shines into the driver’s skin. The portion of the near infrared light that is reflected back is collected by the touch pad. This light transmits information about the skin’s chemical properties, including the concentration of alcohol present. The DADSS breath sensor uses detectors that simultaneously measure the concentrations of alcohol and carbon dioxide (CO2) in a driver’s exhaled breath.148 The diluted breath is drawn into a measurement cavity where optical detectors measure the amount of infrared light absorbed by the alcohol and CO2. Using these measurements, the driver’s BrAC is calculated. It is worth emphasizing that the current DADSS breath sensor requires directed puff of breath toward the sensor and would therefore not be considered passive under BIL. The end design that the DADSS program is working toward is a breath sensor that will capture naturally exhaled breath to make the calculation and may be considered passive as required by the BIL. The goal is not to require the driver to actively blow or puff air or take other action to provide the requisite sample for the system to analyze. The DADSS touch sensor is being designed to be embedded in something that the driver must touch to operate the vehicle, for example, push-to-start button, the steering wheel, or the gear shift selector. Therefore, NHTSA tentatively determines that such a touch sensor could be considered passive. As part of the cooperative agreement with NHTSA, ACTS is planning to develop DADSS Reference Designs for the sensors that include schematics, specifications, minimum hardware requirements, and other documentation for the DADSS sensors so the technology can be licensed, and sensors manufactured. ACTS plans for open licensing of the sensors, which means the technology will be made available on the same terms to any automaker or supplier interested in installing the technology into their vehicles or products. The first DADSS Reference Design—a directed-breath, zerotolerance (BrAC >.02 g/dL) accessory 148 The concentration of CO in the breath 2 provides an indication of the degree of dilution of the alcohol concentration indicating the distance from the sensor the breath was exhaled to determine if the sample is from the driver. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules system for limited deployment in fleet vehicles—was released for open licensing in December 2021. A second DADSS zero-tolerance touch system reference design intended for fleet vehicles is expected in 2024, according to ACTS. ACTS expects touch and breath sensor reference designs for private vehicles, capable of higher BAC measurements, in 2025.149 NHTSA is aware that these delivery dates may be affected by several factors including further research and development and continued supply-chain issues resulting from the COVID–19 pandemic. These dates do not include the time necessary for any manufacturer to consider and implement design changes necessary to integrate these systems into vehicles. lotter on DSK11XQN23PROD with PROPOSALS2 b. Driver Monitoring of Inattention and Impairment Using Vehicle Equipment Another research initiative that NHTSA has conducted is a program with the University of Iowa National Advanced Driving Simulator called Driver Monitoring of Inattention and Impairment Using Vehicle Equipment (DrIIVE).150 The research program explored driver impairment through two separate tracks of research: (1) detection, and (2) mitigation. The main goal of the DrIIVE detection track was to develop and evaluate a system of vehicle-based algorithms to identify alcohol, drowsiness, and distraction impairment. Three impairment-detection algorithms, covering impairment from alcohol intoxication, drowsiness, and distraction, successfully detected matching impairment type (e.g., drowsiness algorithm identified drowsy drivers from a dataset of drowsy and non-drowsy drivers) but had mixed results when applied to crossimpairment datasets (e.g., drowsiness algorithm identifying drowsiness from a dataset of drowsy and distracted drivers). The alcohol intoxication algorithm adapted well to the distracted and drowsy datasets, assuming that there was no alcohol intoxication present in those datasets (participants in the nonalcohol condition were neither dosed with alcohol, nor was BAC measured). The distraction algorithm also worked moderately well when applied to a cross-impairment dataset, although it worked better with head pose incorporated as a driver-based sensor 149 https://dadss.org/news/updates/when-mightthe-dadss-technology-be-in-u-s-cars-and-trucks. 150 Brown, T.L., & Schwarz, C.W., Jasper, J.G., Lee, J.D., Marshall, D., Ahmad, O. (in press) ‘‘Driver Monitoring of Inattention and Impairment Using Vehicle Equipment (DrIIVE) Phase 2.’’ National Highway Traffic Safety Administration. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 signal (e.g., head pose, body posture), as discussed further below. It is important to note that the DrIIVE projects have focused on vehicle-based sensor data; however, they have also incorporated driver-based sensor signals. Additionally, the researchers investigated the benefits of taking individual differences between drivers into account in the training and operation of an algorithm. Driver-based sensors provided an added benefit to the performance and generalization of the distraction-detection algorithm, while individualizing the algorithms for individuals provided an added benefit to a drowsiness algorithm and an alcohol-intoxication algorithm. NHTSA recognizes that there are substantive challenges in individualizing algorithms across the entire driving population. Overall, the algorithms showed good success rates at correctly identifying driver impairment (and the correct source). However, the results of these studies also showed an interesting finding in which, in rare instances, drowsy drivers were categorized as alcohol impaired (despite not being dosed with alcohol). NHTSA has plans to initiate follow on research to refine the algorithm with the aim of determining if alcohol impairment detection can be achieved with a higher degree of accuracy. NHTSA recognizes the importance of accuracy of alcoholimpaired driver detection so that nonimpaired drivers are not inconvenienced. The DrIIVE mitigation research demonstrated the potential short-term effectiveness of both haptic and auditory staged alerts (i.e., the ability to improve driving performance for a period of time after the drowsiness alert is provided). Results show that drowsy drivers who received mitigation alerts maintained better vehicle control and had fewer drowsy lane departures than drowsy drivers without this mitigation. Additionally, drowsy drivers with mitigation showed less variability in speed maintenance. Furthermore, the research suggested that staged alerts may be more effective than discrete alerts for very drowsy drivers. Finally, alert modality did not affect driving performance, nor did the alerts significantly lower self-reported drowsiness. NHTSA has ongoing warning mitigation research for intoxication. c. NHTSA’s November 12, 2020 Request for Information NHTSA also sought input from the public on impaired driving technologies through its November 12, 2020, NHTSA PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 845 Request for Information (RFI).151 The notice requested information to inform NHTSA about the capabilities, limitations, and maturity of available technologies or those under advanced stages of development that target impaired driving. Specifically, it requested details about technologies that can detect degrees of driver impairment through a range of approaches including: (1) technologies that can monitor driver action, activity, behavior, or responses, such as vehicle movements during lane keeping, erratic control, or sudden maneuvers; (2) technologies that can directly monitor driver impairment (e.g., breath, touchbased detection through skin); (3) technologies that can monitor a driver’s physical characteristics, such as eye tracking or other measures of impairment; and (4) technologies or sensors that aim to achieve direct measurement of a driver’s physiological indicators that are already linked to forms of impaired driving (e.g., BAC level for alcohol-impaired driving). NHTSA received 12 responses to the request for information. The following provides a high-level summary of those responses. The Alliance for Automotive Innovation (Auto Innovators) noted that Driver State Monitoring and Driver Behavior Systems are promising technologies that, with continued development, have the potential to significantly reduce distracted and drowsy driving. The Auto Innovators also stated that they are ‘‘. . . unaware of existing research demonstrating the robust effectiveness of these systems in detecting alcohol impairment. . . .’’ The Auto Innovators further stated that ‘‘Driver State Monitoring/Driver Behavior Systems’ ability to identify high-functioning individuals impaired by alcohol is unknown, but likely poor. Additional research is needed to understand the opportunities and limitations of these systems relative to individual alcohol impairment. Preoperation systems, including DADSS, are not so limited because they are designed to quantify a driver’s BAC.’’ Three automotive suppliers 152 of camera-based DMSs and occupant monitoring systems responded to the November 12, 2020, Request for 151 85 FR 71987, available at https:// www.regulations.gov/docket/NHTSA-2020-0102. 152 While not a passive device, a fourth supplier, Evanostics, provided information on a table-top oral fluid testing device that it suggests can test for alcohol and 10 classes of drugs in 15 minutes. A second supplier, Impirica, provided information on a mobile (tablet and phone) based cognitive screening that is designed to evaluate real time driving impairment. E:\FR\FM\05JAP2.SGM 05JAP2 846 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Information. Veoneer, a worldwide supplier of automotive technology, reported that it launched its first camera-based DMS to the market in 2020. Its technology uses a true eye gaze system that determines the directional attributes of where the eyes are focused. Seeing Machines Limited, a DMS supplier, described their technology as providing evidence for the ability to reliably detect both drowsiness and visual distraction. Sony Depthsensing Solutions, an in-cabin occupant monitoring systems provider, described their ability to recognize driver features such as eye open/close and body position. The information they gain through sensors is used ‘‘to extract higher level features such as drowsiness, microsleep, sleep, distraction (long and short) detection, emotion estimation or sudden sickness detection.’’ Veoneer and Seeing Machines both noted that detecting driver alcohol impairment is more challenging and requires more technology development and research. Sony Depthsensing Solutions did not comment on the ability to detect other forms of impairment (e.g., alcohol). Eyegaze Inc., an eye tracking technology supplier, suggested their product, with additional work, could provide a solution to monitor driver attention when housed in an automobile. Safety advocates generally provided support for vehicle safety technologies. The National Safety Council, a safety advocate group, stated their support for in-vehicle passive alcohol detection technology options and DMSs. The Advocates for Highway and Auto Safety, a roadway safety advocacy group, noted their support for vehicle safety technologies, including voicing support for crash avoidance technologies, expedited DADSS research and offender ignition interlocks, among other things. Mothers Against Drunk Driving (MADD) submitted two separate comment submissions to the docket, which included 241 examples of technology related to detection of alcohol in blood or breath, other indicators of alcohol intoxication, drug impairment, drowsiness, and driver distraction/ inattention. Finally, a submission by the American National Standards Institute, Inc, provided research references on eye tracking as an indicator of impairment. d. Technology Scans In addition to the aforementioned RFI, NHTSA contracted with two different groups to independently review the state of publicly available information related to impairment detection. The first is an update to the ‘‘Review of Technology to Prevent Alcohol- and VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 Drug-Impaired Crashes (TOPIC)’’ report.153 This report updates the 2007 evaluation of vehicular technology alternatives to detect driver BAC and alcohol-impaired driving. It includes additional findings related to the detection of impaired driving due to drugs other than alcohol, drowsiness, and distraction. This report reviews relevant literature and technologies and incorporates input from stakeholders and the public (i.e., information received from the RFI). The report finds that tissue spectroscopy technologies are more accurate in estimating BAC than other technologies available at this time. Although driver attention monitoring technologies are presently able to detect drowsy driving and distracted driving, none specifically able to detect alcohol- or drug-impaired driving were found to be commercially available. The second technology scan is ‘‘Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation.’’ The report presents a review of DMS for alcohol impairment detection. A total of 331 systems were reviewed, more than 280 of which met inclusion criteria and are included in the report. The study found that few technologies are commercially available for alcohol impairment detection; some were not designed for in-vehicle use, and others were identified based on patent applications rather than evidence of functional systems. The review focused on features that were explicitly mentioned or indicated on the manufacturers’ websites, patents, device manuals, publications, or reports. The review, which was completed in October 2022, noted that camera-based DMS have been in vehicles since 2018 for monitoring driver inattention to the forward roadway for SAE Level 2 driving automation systems,154 as well as other vehicle-based sensors such as lane position monitoring and steering wheel torque monitoring to measure driver engagement and performance. The DMS were reviewed with a focus on the applicability of each system to driver alcohol impairment detection. The systems were classified as physiology-based, tissue spectroscopybased, camera-based, vehicle kinematics-based, hybrid (i.e., two or more of the classification types), and 153 Pollard, J.K., Nadler, E.D., & Melnik, G.A. (In Press). Review of Technology to Prevent Alcoholand Drug-Impaired Crashes (TOPIC): Update. National Highway Traffic Safety Administration. 154 SAE International, Standard J3016, ‘‘Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems,’’ April 2021. PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 patent-stage systems. A key focus was to review systems that are being developed with the potential to detect alcoholbased driving impairment, as well as systems that can precisely estimate BAC. Of the systems reviewed, no commercially available product was found to estimate the amount of alcohol or identify alcohol-based impairment in the driver during the driving task. Behavioral indicators investigated included eye glances, facial features, posture, and vehicle kinematic metrics. However, systems with these capabilities are currently at various stages of the research and development process. Based on industry stakeholder interviews and expert review of technology documentation, the researchers found that approaches that are furthest along in the development process are those which measure the presence and amount of alcohol in a person’s body using BrAC and tissue spectroscopy. Camera-based and most physiology-based DMS are still in stages of preliminary research and design for alcohol-based impairment detection in passenger vehicles. The efficacy of vehicle kinematic measures in identifying alcohol-based impairment is currently unknown. Finally, hybrid systems are promising in being able to discern between driver states due to the number of different measures used in making state determinations. e. NHTSA’s Driver Monitoring Research Plans In addition to state-of-the-art assessments on DMSs, NHTSA has conducted research on driver state monitoring used in conjunction with SAE Level 2 driving automation.155 While using Level 2 driving automation, drivers are expected to both monitor the environment and supervise vehicle automation which is simultaneously providing lateral and longitudinal support to the driver. Some systems do not require the driver to have their hands on the wheel, while others include advanced features like automated lane changes and point-topoint navigation. The research included a literature review, stakeholder interviews, and system assessments. Many, but not all, Level 2 driving automation systems monitor visual and physical driver indicators, using camera-based sensing systems. Useful 155 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules measures of general driver visual attention include measures of eye/pupil movement (e.g., fixation duration), measures of glance location (e.g., eyes on/off road), and measures of glance spread and range (e.g., scan path). While NHTSA’s research on DMS for Level 2 driving automation systems has implications for DMS applied to detection of alcohol impairment with regard to technological feasibility, there are important differences between these two applications. The safety issues, indicators and measures of driver risk, consumer acceptance, and potential interventions may be different for Level 2 driving automation than they are for alcohol impairment. For example, drivers who are impaired by alcohol may appear to be visually attentive as measured by eye gaze toward the forward roadway, so alternative measures will be important to achieve reliable detection of impairment. Additionally, while alerts may prompt inattentive drivers to return their attention to the road, alerts alone cannot remedy driver impairment from alcohol. Additionally, the use of Level 1 and higher driving automation itself may pose challenges for the detection of alcohol impairment. This is because some of the driving performance measures that may be indicative of alcohol impairment (e.g., instability of lane position and speed) cannot be used when the vehicle itself is controlling that portion of the dynamic driving task. NHTSA is currently conducting research examining distraction that does not specifically focus on drunk driving or metrics but might be helpful to consider if the agency pursues an approach that requires camera-based driver monitoring to detect drunk driving. lotter on DSK11XQN23PROD with PROPOSALS2 2. Passive Detection Methods and Available Technologies The ‘‘advanced drunk and impaired driving prevention technology’’ under BIL prescribes three methods of passive detection—(1) passively monitor the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired; (2) passively and accurately detect whether the blood alcohol concentration of a driver of a motor vehicle is equal to or greater than the blood alcohol concentration described in section 163(a) of title 23, United States Code; 156 156 23 U.S.C. 163(a) states ‘‘The Secretary shall make a grant, in accordance with this section, to any State that has enacted and is enforcing a law that provides that any person with a blood alcohol concentration of 0.08 percent or greater . . .’’. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 or (3) a combination of the first and second options. NHTSA interprets the first option as passively monitoring the driver’s performance (e.g., eyes on the forward roadway; taking appropriate steering, braking, or accelerating action) to gain an accurate determination of whether the driver may be impaired. Since ‘‘driver impairment’’ could include more than just alcohol-impairment, the collective states of driver impairment would constitute the largest real-world safety problem. NHTSA interprets the second option to require passive and accurate detection of BAC over a prescribed limit (which is currently .08 g/dL). This would exclusively target a subset of driver impairment conditions (i.e., alcohol-impaired drivers) focused on BAC detection. Alcohol-impaired drivers constitute the largest fatal driver impairment type. The third option is a combination of both the first and second. The following subsections discuss each of these options. a. Passively Monitor the Performance of a Driver To Accurately Identify Whether That Driver May Be Impaired For the purposes of this section, the following driver impairments were considered: drowsiness, distraction, and drunk, in the order of increasing fatality counts in the United States. While drugged driving is another known driver impairment, the ability to explicitly detect drug-impaired drivers is currently limited. Some of the effects of drugged driving, however, may be similar to the effects of alcohol-impaired or distracted driving, and therefore it is possible that vehicle technologies designed to detect other forms of impairment may also have the ability to detect some drug-induced impairments as well. As stated in the introduction, NHTSA is considering prioritizing alcohol impairment due to the significant safety problem caused by drivers intoxicated by alcohol and requests comment on whether that scope is most appropriate and whether its focus should be expanded to other types of impairment, including those discussed in this section. Driver performance generally consists of being attentive to the driving task, and taking appropriate vehicle control actions (i.e., steering, accelerating, and braking). Modern vehicles are equipped with many crash avoidance and driver assistance sensors that may provide opportunity to contribute to the detection of driver impairment. The following provides examples of those sensing technologies. Camera-Based Driver Monitoring Sensors: Camera-based DMSs are PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 847 becoming more prevalent in vehicles with Level 2 driving automation features (i.e., adaptive cruise control and lane centering).157 NHTSA reviewed several available and prototype camera-based driving monitoring systems that publicly state the ability to monitor aspects of driver state, including driver’s eye gaze, eyelid/eye closure, pupil size, head/ neck position, posture, hand/foot position, and facial emotion during the driving task.158 The review found that most systems are currently available and intended for use in detecting driver drowsiness, inattention, and sudden sickness/non-responsive drivers and few are for specifically detecting alcohol-impairment. Although measures such as eye closure over time, pupil diameter, saccades (an eye movement between fixations), and fixations are parameters under study for detecting alcohol impairment, the review found that there was a lack of clinical and psychophysiological research to aid in specifically detecting driver alcohol impairment. The review found only three systems that claimed alcoholbased impairment detection as the objective, but the systems with these capabilities are not available on the market. It is notable, however, that other past NHTSA research suggested that the driver states of drowsiness and alcoholimpairment can present similarly to a driver monitoring system.159 So there may be an opportunity ‘‘to detect’’ some alcohol-impaired drivers that present as drowsy. However, as discussed further below, the countermeasure for ‘‘prevention’’ applied to a sober drowsy driver, as opposed to an alcoholimpaired driver, may not be the same. For example, NHTSA contemplates and seeks comment on whether a sober drowsy driver may respond favorably to a warning and may even take a break from driving to recover, whereas an alcohol-impaired driver may not respond to a warning at all, or worse, 157 The Path to Safe Hands-Free Driving | GM Stories; Ford BlueCruise | Consumer Reports TopRated Active Driving Assistance System | Ford.com; Nissan ProPILOT Assist Technology | Nissan USA; Teammate Advanced Drive Backgrounder—Lexus USA Newsroom. 158 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. 159 Brown, T.L., & Schwarz, C.W, Jasper, J.G., Lee, J.D., Marshall, D., Ahmad, O. (in press) ‘‘Driver Monitoring of Inattention and Impairment Using Vehicle Equipment (DrIIVE) Phase 2.’’ National Highway Traffic Safety Administration. E:\FR\FM\05JAP2.SGM 05JAP2 848 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 respond in a negative way (e.g., becoming a more risky driver). Hands-On-Wheel Sensors: Drivers with their hands off the steering wheel for an extended period of time can be an indicator of driver inattention. Vehicles equipped with Level 2 features often have capacitive or steering torque sensors to confirm that the driver has at least one hand on the steering wheel. Capacitive sensing detects the change in capacitance of the steering wheel that results from the driver’s hands being removed from the wheel. Steering wheel torque sensing detects small steering inputs made by the driver. These sensors are commonly used in algorithms to encourage drivers to remain attentive during driving.160 It should be noted, however, that some Level 2 feature designs permit handsoff-wheel while supervising the vehicle automation. Current production vehicles with Level 2 features that permit drivers to remove their hands from the wheel have camera-based DMS that alert drivers if they look away from the forward roadway for more than a few seconds. Lane Departure and Steering Sensors: Poor precision as indicated by unintended lane excursions may indicate unsuitable driver states, including alcohol-based impairment.161 Alcohol reduces driving precision, and lane positioning is a key skill that is affected, even at low doses. Deviation of lane position from the lane center increases with increasing doses of alcohol.162 The Standard Deviation of Lane Position (SDLP) is considered a sensitive (but not specific) measure of alcohol impairment.163 Relatedly, 160 Driver Monitoring | Alliance For Automotive Innovation (autosinnovate.org). 161 https://www.nhtsa.gov/sites/nhtsa.gov/files/ 808677.pdf. 162 Harrison, E.L., & Fillmore, M.T. (2005). Are bad drivers more impaired by alcohol? Sober driving precision predicts impairment from alcohol in a simulated driving task. Accident Analysis & Prevention, 37(5):882–9. doi: 10.1016/ j.aap.2005.04.005; Lee JD, Fiorentino D, Reyes ML, Brown TL, Ahmad O, Fell J, Ward N, Dufour R. (2010). Assessing the Feasibility of Vehicle-Based Sensors to Detect Alcohol Impairment. National Highway Traffic Safety Administration. Report No. DOT HS 811–358; Calhoun, V.D. & Pearlson, G.D. (2012). A selective review of simulated driving studies: Combining naturalistic and hybrid paradigms, analysis approaches, and future directions. NeuroImage, 59(1), 22–35; Irwin C, Iudakhina E, Desbrow B, McCartney D. (2017). Effects of acute alcohol consumption on measures of simulated driving: A systematic review and metaanalysis. Accident Analysis & Prevention, (102),248–266. doi: 10.1016/j.aap.2017.03.001. Epub 2017 Mar 24. PMID: 28343124. 163 Irwin C, Iudakhina E, Desbrow B, McCartney D. (2017). Effects of acute alcohol consumption on measures of simulated driving: A systematic review and meta-analysis. Accident Analysis & Prevention, (102)248–266. doi: 10.1016/j.aap.2017.03.001. Epub 2017 Mar 24. PMID: 28343124. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 measures of steering inputs can be used to detect alcohol impairment.164 Specifically, drivers who are impaired due to alcohol may exhibit more erratic driving patterns with tendencies to deviate from their lane position.165 The following crash avoidance sensor technologies equipped on modern vehicles could aid in detecting lane departure: forward-looking external cameras; steering wheel torque sensors; and blind spot detection sensors. When driven manually, forwardlooking external cameras commonly used in lane departure warning systems have the potential to identify a vehicle drifting out of its travel lane, typically when lane markings are present and observable (i.e., not snow-covered or worn). This could include drifting off the roadway or drifting into oncoming traffic. Tracking a vehicle’s lane departure warning activations over time could present as an indicator of a driver directing the vehicle to weave in and out of its travel lane (weaving and weaving across lanes are cues used by officers in detection of impaired driving).166 NHTSA’s research suggests that many vehicle manufacturers use lane position monitoring for detecting unintentional lane drift from several driver impairments—drowsiness and inattention.167 Some vehicle manufacturers were found to use lane position monitoring in available features, such as oncoming lane mitigation and run-off road mitigation.168 Some vehicles are equipped with steering wheel torque sensors that monitor a driver’s steering inputs. Such sensors could detect and monitor erratic steering corrections over time during the course of a trip. NHTSA’s research suggests that some vehicle manufacturers use steering input monitoring for detecting inattention, drowsiness, or sudden sickness/nonresponsive driver for vehicles equipped 164 Das D., Zhou S., Lee J. D. (2012). Differentiating alcohol-induced driving behavior using steering wheel signals. IEEE Trans. Intel. Transp. Syst. 13 1355–1368. 10.1109/ TITS.2012.2188891. 165 Kersloot, Tanita & Flint, Andrew & Parkes, Andrew. (2003). Steering Entropy as a Measure of Impairment. 166 https://www.nhtsa.gov/sites/nhtsa.gov/files/ 808677.pdf 167 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. 168 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 with Level 2 systems (used in an active emergency stop assist application).169 Many modern vehicles also come with blind spot warning sensors on the sides of the vehicle that can identify a vehicle in an adjacent lane.170 If an impaired driver attempts to steer into an adjacent lane of travel when another vehicle is in its blind spot, a vehicle equipped with this technology can warn the driver, or in some vehicles, even intervene via active blind spot intervention technology. Speed/Braking Sensors: Speed maintenance is generally affected by high BAC levels. NHTSA’s research has found that driver alcohol doses greater than BAC .05 g/dL can significantly impair an individual’s ability to maintain appropriate speed, particularly in complex environments.171 While some studies report increased speeds by alcohol-impaired drivers, others report speed decreases.172 The reduced ability to maintain consistent speed is referred to as the Standard Deviation of Speed Deviation (SDPD), which is commonly used to measure relative performance of impaired drivers compared to control groups. While findings concerning speed directionality (i.e., increase or decrease) are mixed, studies have consistently shown that speed deviation from posted speed limits tends to increase in alcohol-impaired driver groups.173 That said, some forward-looking external cameras can detect and interpret posted speed limit signs, which could provide an indicator of speeding when compared to the actual speed the vehicle is traveling. Some vehicles have telematics and maps that provide posted speed limit information. Vehicles also have brake sensors that could be monitored over time to sense repeated incidences of hard braking during a trip. Time-Based Sensors: Two other vehicle sensors that could be used in an overall driver impairment algorithm include duration of trip, and time of day. Monitoring the trip duration is used in some vehicle algorithms to warn about drowsy driving.174 After a certain 169 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. 170 https://www.nhtsa.gov/equipment/driverassistance-technologies. 171 Veldstra et al., 2012; Mets et al., 2011. 172 Rezaee-Zavareh et al., 2017; Lee et al., 2010; West et al., 1993; Irwin et al., 2017; Lenne et al., 2010. 173 Arnedt et al., 2001; Yadav & Velaga, 2020; Irwin et al., 2017. 174 Driver Attention Warning | Hyundai. E:\FR\FM\05JAP2.SGM 05JAP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules length of time, a vehicle may provide an icon (e.g., a coffee cup-like symbol) on the instrument panel to suggest a driver take a break from the driving task. Monitoring the trip duration may also help in identifying repeated lane departures over time. Monitoring the time of day could be added to other detection methods to help confirm detection of drowsiness or alcoholimpairment states at late night times. Most alcohol-impaired driving fatalities in the United States occur between 6 p.m. and 3 a.m.175 Physiological Sensors: There are also a variety of physiological-based systems under research that use biometric measures from the driver to infer driver state. These could include heart rate, sweat, and blood pressure, among others. NHTSA’s research found that many were in the research and development stage, including those for breath alcohol detection (which will be discussed in the next section).176 A practical limitation of their use may be the fact that detecting driver impairment may be reliant upon background knowledge of a specific driver’s baseline physiological characteristics (to sense elevated levels) and can be attributable to multiple physiological states (e.g., stress). In summary, NHTSA’s research suggests that many driver impairment detection strategies use different combinations of measures, but the available documentation of multidetection approaches is rare, and when present, details of the underlying algorithms are sparse.177 It is reasonable to assume that the combination of more sensors and driver metrics will improve the confidence in driver state inference. Little data is available, however, to inform NHTSA on which combination of sensors and indicators of driver state, if any, would achieve greater accuracy and reliability of impairment detection. Vehicle manufacturers have announced concept vehicles or production plans for active/passive technologies to mitigate alcoholimpaired driving for many years. For example, a media article 178 cited alcohol-impaired driver research by General Motors dating back to the 1970s on a critical tracking test (CTT) ‘‘experimental deterrent’’ that used the result from a 10-second test the driver took each time he or she got behind the wheel to determine whether the car would start. Tests were reported to use driver steering wheel movement and a gauge on the instrument panel where the driver would have to keep the needle on the gauge in the acceptable range through a series of progressive needle movements. Another concept involved cognitive tests where a series of five numbers appeared above five numbered white buttons on the instrument panel (or on a keypad). To pass the test, the driver must replicate the number sequence by using buttons and complete it in a designated timeframe. More recently, a 2016 patent held by General Motors, ‘‘Method and System for Mitigating the Effects of an Impaired Driver,’’ aims to detect inattention and alcohol-based impairment through use of camera-based detection measures (i.e., eye gaze, eyelid/eye closure, and facial/emotional measures), as well as lane monitoring and steering input.179 Similarly, in 2007, Toyota announced its intent to create a fail-safe system for cars that detects drunk drivers and automatically shuts the vehicle down if sensors pick up signs of excessive alcohol consumption. According to a media report,180 cars fitted with the detection system will not start if sweat sensors in the driving wheel detect high levels of alcohol. The system could also detect abnormal steering, or if a special camera shows that the driver’s pupils are not in focus, the car would be slowed to a halt. Toyota had reportedly hoped to fit cars with the system by the end of 2009. NHTSA does not know the current status of this Toyota technology and seeks comment on its effectiveness and availability. During the same timeframe, Nissan also reportedly developed a concept car with technology to detect alcohol in the breath and sweat of the driver.181 Nissan’s concept car had an alcohol 175 Traffic Safety Facts 2020: A Compilation of Motor Vehicle Crash Data (dot.gov) Table 31. 176 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. 177 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. 178 A GM onboard experimental alcohol and drug impairment detection device of the 1970s | Hemmings 179 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. 180 Toyota creating alcohol detection system (nbcnews.com). 181 Nissan Is Ahead of Its Time in Developing Anti-Drunk Driving Technology Over a Decade Before Potential Federal Mandate | GetJerry.com. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 849 sensor in the transmission shift knob, and in the driver’s and passenger’s seats. Both reportedly worked together to detect traces of alcohol in the cabin past a certain threshold. If the driver’s seat or shift knob had detected any alcohol while still parked, the transmission locked and made the car immobile. A second feature was a facial monitoring system built to monitor signs of drowsiness or distraction by monitoring the driver blinking rate. Once detected, a voice message alert was issued, and the seat belt was tightened to gain the attention of the driver. A third concept that was further developed after the 2007 timeframe was a road monitoring system. Nissan put technology in vehicles that monitored lanes and alerted drivers when the vehicle drifted out of the current lane, which Nissan reportedly believed mitigated safety risks associated with distracted driving. Hyundai Mobis, a global Tier 1 182 supplier, has been researching a technology called DDREM—Departed Driver Rescue and Exit Maneuver. Initially announced at the Consumer Electronics Show in 2018,183 DDREM uses an infrared camera to capture driver facial and eye movements to determine if the driver keeps eyes forward, changes blinking patterns, or exhibits other signs of drowsiness. The technology also looks for key identifiers used in advanced driver assistance systems (e.g., if the driver is moving in and out of a lane, crossing lanes, zig zagging, or making erratic movements). On March 20, 2019, Volvo Cars announced plans to deploy in-car cameras and intervention against intoxication and distraction.184 Its press release stated, ‘‘Volvo Cars believes intoxication and distraction should be addressed by installing in-car cameras and other sensors that monitor the driver and allow the car to intervene if a clearly intoxicated or distracted driver does not respond to warning signals and is risking an accident involving serious injury or death.’’ The press release provided examples of behaviors to be detected: a complete lack of steering input for extended periods of time, drivers who are detected to have their eyes closed or off the road for extended 182 Tier 1 suppliers are companies that are direct suppliers to Original Equipment Manufacturers (OEM). 183 https://www.businesswire.com/news/home/ 20180103005023/en/2018-CES-Hyundai-MobisAnnounces-Lifesaving-Autonomous-VehicleTechnology-to-Potentially-Eliminate-DrowsyDriving-Fatalities, last accessed July 7, 2023. 184 https://www.media.volvocars.com/global/engb/media/pressreleases/250015/volvo-cars-todeploy-in-car-cameras-and-intervention-againstintoxic. E:\FR\FM\05JAP2.SGM 05JAP2 850 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 periods of time, as well as extreme weaving across lanes or excessively slow reaction times. It further stated introduction of the cameras on all Volvo models will start on the next generation of Volvo’s scalable SPA2 vehicle platform in the early 2020s. Most recently, Volvo introduced the model year 2024 Volvo EX 90 that has a ‘‘Driver Understanding System,’’ which uses two interior sensors and a capacitive steering wheel along with the vehicle’s exterior sensors to understand if a driver is distracted or drowsy and when the vehicle may need to step in and support.185 Given the advancements in driver impairment detection (i.e., due to use in combination with SAE Level 2 driving automation technology), it is expected that other approaches will improve over time as strategies for mitigating inattention, incapacitation, drowsiness, and alcohol-impairment detection evolve—both from a technology perspective and a consumer acceptance stance. For example, Consumer Reports published an article suggesting that early versions of these driver impairment technologies are already appearing on cars in other countries.186 NHTSA seeks comment on the current state of technology and its effectiveness in passively detecting driver impairment. 185 2024 Volvo EX90 Full Electric 7 Seater SUV | Volvo Car USA (volvocars.com) According to its website, the vehicle’s ‘‘Pilot Assistance’’ feature ‘‘can help keep an eye on the traffic and lane markings and support you by adapting your speed and distances given the current driving conditions. It can provide speed control in steep curves and steering support while changing lanes. If the car detects any sign of the driver being unresponsive, it can brake the vehicle to a standstill within the lane.’’ 186 https://www.consumerreports.org/car-safety/ driver-monitoring-can-pull-car-over-if-driverincapacitated-a1204997865/ ‘‘Some Volkswagen Arteon sedans sold in Europe and equipped with the Emergency Assist 2.0 feature will turn on their flashers and pull over to the side of the road if a driver becomes unresponsive. According to the automaker, if the car senses that a driver is not using the accelerator, brake, or steering wheel, it will first try to awaken a driver by sounding alarms and tapping the brakes to ‘‘jolt’’ the driver into awareness. If the driver still doesn’t respond, it will automatically steer itself to the lane furthest from traffic on a multilane road and bring the vehicle to a stop. In Japan, Mazda has said it will debut its Co-Pilot system on new vehicles this year. Tamara Mlynarczyk, a Mazda spokesperson, tells CR that the system is ‘‘continuously monitoring’’ the driver’s performance. ‘‘In a potential emergency situation where the driver loses consciousness, the system is prepared to intervene and assist the driver or pull the car over to a safer location,’’ she says. On a multilane road, it may be able to pull the vehicle to the road’s shoulder.’’ VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 Questions on Technologies That Passively Monitor the Performance of a Driver To Accurately Detect Whether That Driver May Be Impaired 1.1. NHTSA requests feedback on the two technology scan findings. Are there technologies, or technology capabilities or limitations not captured in these reports? If so, what are they? 1.2. NHTSA is concerned that behaviors consistent with drunk driving, like repeated potential lane departure and erratic speeding/braking, would be masked by an engaged SAE Level 2 driving automation systems. Would there be enough information from other sensors (e.g., camera-based DMS, hands-on-wheel detection) to detect driver impairment and driver impairment type when SAE Level 1 or 2 driving automation systems are active? 187 1.3. NHTSA is concerned about the limitations of vehicle sensor-based impairment detection systems to operate fully when certain sensors are impeded. External circumstances may include common roadway conditions such as darkness, heavy weather, roads with poor markings, or unpaved roads. Circumstances within the vehicle may include driver accessories, such as infrared light-blocking sunglasses, masks, or hats that may obscure the view of the driver to a DMS camera. If one or more sensors are impeded by such conditions, is there enough information from other sensors to detect driver impairment? Does this vary by impairment type? What are the operational limitations of such systems? 1.4. NHTSA is seeking input on how a test procedure for driver impairment detection systems could be developed and executed in a FMVSS. For example, does the test need to be conducted in a moving vehicle to capture lane drift or weaving? If so, what are potential testing approaches or procedures? Are humans required for camera-based DMS assessment? Are there particular accessories (e.g., sunglass types, facial coverings) that would be required for testing? Is it feasible to conduct testing in darkness? What type of accuracy could be attained? How might this vary based on intended impairment type detection? 1.5. What kind of performance requirement should NHTSA consider to mitigate defeat strategies (e.g., taping over the camera-based DMS or removing/replacing rear-view mirrors that contain driver monitoring equipment)? 187 2020 Data: Alcohol-Impaired Driving (dot.gov). PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 1.6. What metrics and thresholds (e.g., eye gaze, lane departure violations, speed, blind spot warning triggers, lane position variability, speed variability), or combination thereof, are most effective at measuring driver impairment? These would include timebased parameters from the start of the ignition cycle and those used for continuous monitoring. How feasible is it to implement these metrics in passenger vehicles? Should these vary by impairment type? Might these measures conflict across impairment types? Should NHTSA require impairment detection systems be able to collect specific metrics? Why or why not? 1.7. NHTSA seeks comment on whether it should be necessary for an impairment detection system to determine what kind of impairment a driver has (e.g., drowsy, distracted, drunk) if the driver triggers certain metrics that indicate the driver is impaired by at least one of those impairments? For example, incapacitation, drowsiness, and distraction could be captured by camera-based monitoring systems, but they may also detect some alcoholimpaired drivers. 1.8. Are there characteristics that would separate sober impairments from alcohol-induced impairments (e.g., horizontal gaze nystagmus or myokymia)? If so, what are they? Are there other non-alcohol induced conditions in which some of these characteristics might appear? If so, please provide examples. 1.9. NHTSA seeks comment about whether certain conditions listed in the previous question (e.g., myokymia) might result in false positives 188 in certain situations (e.g., stress) or with certain populations (e.g., older drivers). 1.10. What precision and accuracy should driver monitoring technology be required to meet for the purposes of detecting alcohol impairment? Under what conditions should these technologies be demonstrated to work? Are there driver characteristics, environmental conditions, or other factors that might limit the usefulness or applicability of certain technologies under certain conditions? Should there be a maximum time allowed for a system to develop a determination of impairment, after the indicators of impairment are detected? 1.11. Under what conditions should a vehicle allow a driver to turn off driver impairment monitoring, if at all? If 188 A false positive could occur when the system indicates a person is at the detection level for impairment, when they are not impaired. E:\FR\FM\05JAP2.SGM 05JAP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules allowed, should a system be reset to ‘‘on’’ upon the next ignition cycle? 1.12. NHTSA is interested in data, studies, or information pertaining to the effectiveness of various sensors or algorithms in correctly detecting driver impairment (collectively, and individual impairments). NHTSA is seeking comment on which metrics, thresholds, sensors, and algorithms employed by existing DMS technology that could be used in an alcohol impairment detection system could be sufficiently robust to meet the requirement that an FMVSS be objective. 1.13. Are there other innovative technologies, such as impaired-voice recognition,189 that could be used to detect driver impairment at start-up? If so, how might these function passively without inconveniencing unimpaired drivers? How mature and accurate are these technologies? 1.14. What level of sensitivity and specificity is necessary to ensure the DMS technology does not unduly burden unimpaired drivers or prevent unimpaired drivers from driving? Are there any DMS available on the market capable of detecting alcohol impairment with the level of sensitivity and specificity necessary to ensure this? 1.15. How can developers of DMS technology ensure that people with disabilities are not disproportionately impacted? Specifically, how can the technology accurately account for facial/ body differences, chronic health conditions, and adaptive driving technologies? 1.16. How repeatable and reliable must these systems be? Is there societal acceptance of some potential false positives that could inconvenience sober drivers knowing that it would capture drunk drivers? If so, what countermeasure might best facilitate this? In considering a possible performance standard, what false positive rate would place too great a burden on unimpaired drivers? 1.17. What can be done to mitigate physical destruction or misuse concerns? If mitigations exist, how might these mitigations impact the effectiveness of DMS monitoring driver impairment? 1.18. NHTSA seeks to ensure fairness and equity in its programs and regulations. As NHTSA considers technologies that can passively detect impairment, some of which monitor facial features through camera-based systems or voice recognition, how can NHTSA, in the context of an FMVSS, 189 https://neurosciencenews.com/ai-alcohol- voice-22191/. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 best ensure these systems meet the needs of vehicle users of all genders, races and ethnicities, and those with disabilities? b. Passively and Accurately Detect Whether the Blood Alcohol Concentration of a Driver of a Motor Vehicle Is Equal to or Greater Than the Blood Alcohol Concentration Described in Section 163(a) of Title 23, United States Code The second option presented in BIL is one that requires the passive and accurate detection of a driver of a motor vehicle whose BAC is equal to or greater than the BAC described in Section 163 (a) of title 23, United States Code. Section 163(a) of title 23 of the United States Code currently reads as follows: (a) General Authority.— The Secretary shall make a grant, in accordance with this section, to any State that has enacted and is enforcing a law that provides that any person with a blood alcohol concentration of 0.08 percent or greater while operating a motor vehicle in the State shall be deemed to have committed a per se offense of driving while intoxicated (or an equivalent per se offense). Therefore, for this BIL option, a technology would need to passively and accurately detect whether the BAC of a driver of a motor vehicle is equal to or greater than .08 g/dL. Typically, BAC is measured as the weight of alcohol in a certain volume of blood (expressed in g/ dL). Accurate measurement of BAC typically requires a driver’s blood being drawn by a phlebotomist and sent to a lab where a medical laboratory scientist prepares samples and performs tests using machines known as analyzers. To measure BAC passively and accurately in a motor vehicle setting would therefore require alternative detection methods. The DADSS breathbased sensor, discussed above, can measure driver breath samples at the start of the trip or during the drive to measure driver BrAC. The DADSS touch-based sensor has the potential to be located on the ignition push-button or on the steering wheel. Similarly, it will be designed to take measurements at the start of the trip, or during the drive, in the case of the steering wheel application. Previous research through the DADSS program has established that the alcohol measurements from breath and touch sensors can be consistent, reproducible, and correlate well with traditional blood and breath alcohol measurements.190 As 190 Lukas S.E., Ryan E., McNeil J., Shepherd J., Bingham L., Davis K., Ozdemir K., Dalal N., Pirooz K., Willis M., Zaouk A. 2019. Driver alcohol PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 851 noted, the prototypes under development for a passive, accurate breath-based sensor 191 are planned for design completion in 2024 and a passive, accurate touch-based sensor 192 for 2025, with additional time needed to integrate systems in vehicle models and conduct verification and validation. Preliminary estimates suggest that manufacturers will need at least 18–24 months to integrate the technology into vehicles.193 Therefore, a current limitation of this option is the fact that NHTSA is not aware of a passive and accurate .08 g/ dL BAC detection technology available for production vehicles today, and hence the timeframe for fleet implementation may be an issue. Questions on Technologies Aimed at Passively and Accurately Detecting Whether the BAC of a Driver of a Motor Vehicle Is Equal to or Greater Than .08 g/dL 2.1. In a follow-up to NHTSA’s technology scans, NHTSA seeks any new information on technologies that can passively and accurately detect whether the BAC of a motor vehicle driver is equal to or greater than .08 g/ dL. 2.2. Although the legal thresholds for DUI/DWI laws focus on BAC/BrAC, BAC/BrAC are typically not used in isolation by law enforcement to determine impairment. BrAC/BAC may provide additional evidence of impairment after an officer has observed driving behavior, the appearance of the driver (e.g., face flushed, speech slurred, odor of alcoholic beverages on breath), the behavior of the driver, and any statements the driver has made about alcohol or drug use. Additionally, an officer may have administered the Standard Field Sobriety Test. Considering this, should regulatory options use BAC/BrAC in isolation to determine whether drivers are above the legal limit? If so, why? detection system for safety (DADSS)—human testing of two passive methods of detecting alcohol in tissue and breath compared to venous blood. Paper Number 19–0268. Proceedings of the 26th International Technical Conference on the Enhanced Safety of Vehicles. 191 The breath sensor is being designed to capture a driver’s naturally exhaled breath upon first entering the vehicle. 192 The touch sensor is being designed to be imbedded in something that the driver is required to touch to operate the vehicle such as the pushto-start button or the steering wheel rim. 193 When might the DADSS technology be in U.S. cars and trucks?—DADSS—Driver Alcohol Detection System. (last accessed 3/20/2023), available at https://dadss.org/news/updates/whenmight-the-dadss-technology-be-in-u-s-cars-andtrucks/. E:\FR\FM\05JAP2.SGM 05JAP2 lotter on DSK11XQN23PROD with PROPOSALS2 852 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules 2.3. Are commenters concerned about using the legal limit (.08 g/dL) when there are indications that some individuals exhibit intoxication that would impact driving at lower or higher levels, depending on a number of factors discussed in the introduction? Why or why not? Might drivers with a BAC greater than 0 g/dL but less than .08 g/ dL interpret the fact that their vehicle allows them to drive as an indication that it is safe for them to drive after drinking? If so, are there ways to mitigate this possible unintended consequence? 2.4. Given the quantifiable positive impacts on highway safety that Utah has experienced since lowering its BAC thresholds to .05 g/dL, should NHTSA consider setting a threshold lower than .08 g/dL? 2.5. Is a BrAC detection that correlates to a BAC of .08 g/dL or above sufficiently accurate? 2.6. Would a standard that allows or requires systems that approximate BAC using BrAC (at any concentration) meet the Safety Act’s requirement that standards be objective? Would the technology detect BAC? 2.7. NHTSA is seeking input on how a .08 g/dL BAC detection test procedure could be developed and executed in a FMVSS. For example, are dosed humans required or would a test device to simulate human dosing be required? What type of accuracy could be attained? Would static test procedures accurately simulate dynamic performance? In a BrAC evaluation, how would variance in vehicle cabin volume be accounted for? 2.8. What precision/accuracy should BAC detection technology be required to meet? Should any precision/accuracy requirement be fixed at a final rule stage, or should it become progressively more stringent over time with a phasein? 2.9. For a BAC-based sensor, NHTSA seeks comment on when during a vehicle’s start-up sequence an impairment detection measurement should occur. For example, should an initial measurement of BAC/BrAC be required upon vehicle start-up, or before the vehicle is put into drive, and why? What is a reasonable amount of time for that reading to occur? 2.10. NHTSA recognizes that ongoing detection would be necessary to identify if a driver reaches an impairment threshold only after commencing a trip, particularly if drinking during a drive. NHTSA seeks comment on whether BAC/BrAC measurements should be required on an ongoing basis once driving has commenced, and, if so, with what frequency, and why. Further, VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 would a differentiation of the concentration threshold between initial and ongoing detection be recommended and why? 2.11. NHTSA requests comments on operational difficulties in using touchbased sensing (e.g., consumer acceptance in colder climates when gloves may interfere) or in using breathbased sensing (e.g., mouthwash, vaping, alcohol-drenched clothing, or other false positive indicators). 2.12. What can be done to mitigate physical destruction and misuse? Examples may include having a sober passenger press the touch sensor or breathe toward the breath sensor. If mitigations exist, how might these mitigations impact the effectiveness of alcohol detection systems? 2.13. Are there cybersecurity threats related to impairment detection systems? If so, what are they? Are there potential vulnerabilities that might allow outside actors to interfere with vehicles’ impairment detection systems or gain unauthorized access to system data? How can cybersecurity threats be mitigated? Are there impairment detection methods or technologies that are less vulnerable than others? 2.14. What temporal considerations should NHTSA include in any performance standards it develops (i.e., should NHTSA specify the amount of time a system needs to make a first detection upon startup before it will enable driving)? What amount of time is reasonable? c. A Combination Detection Approach: Passively Monitor the Performance of a Driver of a Motor Vehicle To Accurately Identify Whether That Driver May Be Impaired and Passively and Accurately Detect Whether the BAC of a Driver of a Motor Vehicle Is Equal to or Greater Than .08 g/dL This regulatory option combines the prior two. The combination of driver impairment detection (e.g., using camera-based driver monitoring and other vehicle sensors) and .08 g/dL BAC detection may provide more opportunity to capture alcohol-impaired drivers at the start of the trip as well as those that have elevated BAC during the drive. It further may have the potential to help mitigate false positive detections by providing multiple detection methods. In a NHTSA research study,194 all the reviewed hybrid systems used camera194 Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C., Parong, J., & Robinson, E. (in press). Assessment of Driver Monitoring Systems for Alcohol Impairment Detection and Level 2 Automation. National Highway Traffic Safety Administration. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 based DMS measures in addition to vehicle kinematic or physiological measures. The study further suggested that augmentation of camera-based measures with other measures is expected to be a trend in driver state monitoring systems, particularly those that measure alcohol impairment. Specifically, NHTSA’s research study found sensors from two vehicle manufacturers, Toyota and Nissan, that used variables that have been found sensitive to alcohol impairment, including eye and eye closure measures, sweat, and BrAC. However, neither is on the market. Therefore, a current limitation of this option is the fact that NHTSA is not aware of a passive and accurate .08 g/ dL BAC detection technology available for production vehicles, as discussed in the previous section, and hence the timeframe for implementation may be a limiting factor. Questions on Technologies Aimed at a Combination of Driver Impairment and BAC Detection 3.1. In light of the technology development needs to both passively and accurately detect .08 g/dL BAC and passively monitor the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired, are there interim strategies NHTSA should pursue? 3.2. If an alcohol impairment detection system utilizes both BAC detection and DMS components, which DMS metrics best complement a BAC system to ensure accuracy, precision, and reliability? 3.3. One possible benefit of a hybrid approach is that a camera system could help prevent intentional defeat of BAC/ BrAC sensors. For example, when a driver presses a touch sensor to measure BAC, a camera using machine vision could verify that it is the driver and not a passenger who touches the sensor. Could the camera provide additional benefits against defeating the system? 3.4. NHTSA is considering a phased approach to addressing alcohol impairment. The agency is concerned about false positives. Effectively, this approach could have a first phase that aims to address alcohol-impaired drivers with a BAC of .15 g/dL or higher, where an alcohol sensor could have better accuracy in detecting alcohol-impairment, in combination with a camera-based DMS and/or other vehicle technologies. By improving the BAC detection accuracy, it may gain more consumer acceptance by lowering the false positive rate (i.e., the chance that someone with a BAC below .08 g/ dL is incorrectly identified as alcohol- E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 impaired by a vehicle system). This would also target the drivers with the highest levels of impairment. With time and accuracy improvement, a second phase could be pursued to achieve the .08 g/dL BAC accuracy needed to comply with BIL. NHTSA therefore seeks comment on the viability of this regulatory approach. Is a BAC of .15 g/ dL the right limit to phase in? 3.4. An option could also be a system with primary and secondary indicators within a driver impairment algorithm. For example, a system could incorporate a zero or low (.02 g/dL) tolerance BAC detection technology to initially sense whether alcohol is present in the vehicle. This would serve to ‘‘wake up’’ a driver impairment algorithm. Since this could be hand sanitizer or alcohol on a person’s clothing, a second confirmation of driver impairment from a driver monitoring system would be needed. Driver performance measures, such as eye gaze, lane weaving, etc. would be the primary indicators of impairment and utilize evidence of alcohol as a supplementary indicator for alcohol impairment. Given this approach, would such a system allow a vehicle to better distinguish between alcohol impairment and other forms of impairment that have similar indicators (i.e., the percentage of eyelid closure can be an indicator of both drowsy and drunk driving)? NHTSA notes that it has not identified any passive, productionready, alcohol-impaired driver detection technology capable of accurate detection at .02 g/dL and seeks comment on the status of such technology. 3. Proposed Vehicle Interventions Once Driver Impairment or BAC Is Detected Once drunk driving or driver impairment is detected by a vehicle, the question becomes—what does the vehicle do with that information? BIL states that advanced drunk and impaired driving technologies include the ability to ‘‘prevent or limit’’ motor vehicle operation. There are a variety of strategies to prevent or limit operations that have been under research or have been implemented in production vehicles, such as the ignition interlocks discussed above.195 Others range from not allowing the vehicle to move out of park (transmission interlocks), to warnings (used perhaps as a supplement to an intervention approach), to slowing or stopping the vehicle (in lane, or on the shoulder or right-most lane). There are also many considerations involved in selecting appropriate interventions, 195 NHTSA notes that nothing in this document is intended to replace ignition interlocks used as a sanction for impaired driving offenses. VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 given the timing of impairment detection (i.e., prior to the start of driving or during driving). Additionally, interventions appropriate for drunk driving may be different than those employed for other forms of driver impairment. For example, drunk drivers may respond more slowly to warnings than a sober but drowsy driver. Additionally, repeatedly warning a driver beyond the level or frequency that generates a positive reaction could lead to consumer annoyance and defeat efforts. NHTSA seeks to balance these concerns. a. Prohibiting Driving at Start of the Trip Ideally, once a defined level of alcohol has been accurately sensed from an impaired driver by vehicle technology, that individual would be prohibited from driving the vehicle. For example, this prohibition could be accomplished through an ignition or transmission shift interlock for an internal combustion engine vehicle. The vehicle could be put in accessory mode, and not able to move. Prohibiting an impaired driver from driving the vehicle at the start of a trip targets the largest number of alcohol-impaired fatalities. The .08 g/dL BAC touch-sensor and/ or breath-sensor detection technologies, which can ideally take immediate BAC measurements, are better suited for prohibiting driving at the start of the trip versus others that require a temporal measure of driver performance. While the technology readiness of the DADSS technologies to provide accurate .08 g/dL BAC detection is still undergoing research and development at this time, there are still many challenges associated with this prevention method that should be considered if it were to become a viable regulatory option. Assuming an accurate detection technology is fully developed (including a standardized method for testing), NHTSA would have to consider the overall effectiveness of the intervention strategy and the overall cost (economic, societal, etc.). Some considerations would, among other things, include: consumer acceptance; defeat strategies; unintended consequences of immobilizing a vehicle; need for an emergency override; and time between disablement and re-enablement. NHTSA is seeking feedback on the following questions. Questions on Prohibiting Driving at the Start of the Trip 4.1. How would an alcohol-impaired person react to their vehicle not starting, and how can/should this be considered? Would some individuals decide to walk PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 853 to their destination in the road, increasing their risk of being hit by another vehicle? Would they get a sober person to start their vehicle and then take over the driving task themselves? Are there countermeasures to discourage this practice by shutting down the vehicle for a period of time after two failed attempts? NHTSA seeks comment on potential research designs to develop better information in this area. 4.2. What are the pros/cons of an ignition interlock as opposed to a transmission interlock prevention method for internal combustion engine vehicles? Is one superior to the other? Should both be acceptable compliance options if considered for an FMVSS? How would this differ for electric vehicles and what issues specific to electric vehicles should NHTSA consider? 4.3. NHTSA seeks comment on any adverse consequences of an impaired driver being unable to drive his/her vehicle. For example, this could result in an alcohol-impaired person being stranded late at night for hours and susceptible to being a victim of crime or environmental conditions (e.g., weather). Or an alcohol-impaired camper may need to use his/her vehicle to escape from a rapidly approaching wildfire or environmental conditions (weather). How often would such incidences expect to occur (assuming full fleet implementation)? Are there logical strategies for mitigating the negative effects? What if the vehicle owner wishes to drive their vehicle on private land (i.e., not on public roads)? 4.4. Given the previous examples, should there be an override feature for emergencies? Should the maximum speed of the vehicle be limited during override? How could an override feature be preserved for extreme situations and not used routinely when alcoholimpaired? 4.5. If a system detects alcohol impairment prior to the start of a trip and an interlock is activated, should retest(s) be allowed, at what elapsed time interval(s), and why? NHTSA especially seeks comment on test/data analysis methods for determining an optimal retest interval strategy. Finally, should data be recorded on the vehicle if retesting is permitted? b. Vehicle Warnings Once Impairment Detected (On-Road) In addition to driver impairment being detected and prevented at the start of a trip, driver impairment can be monitored over time during the drive. Detecting that a driver is alcoholimpaired mid-trip is obviously a less E:\FR\FM\05JAP2.SGM 05JAP2 854 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules desirable scenario (than detecting that a driver is impaired via an ignition/ transmission interlock) since an alcoholimpaired driver may have the unfortunate opportunity to get in a crash before the driver impairment is detected. However, this type of strategy may mitigate a larger group of driverimpairment fatalities, not just alcohol, and vehicle warnings could be relatively low cost. That said, there are many challenges associated with this intervention that should be addressed for it to become a viable regulatory option. Assuming an accurate detection technology was fully developed (including a standardized method for testing), NHTSA would have to consider the overall effectiveness of warnings as an intervention strategy against the various driver impairments, and the overall cost (e.g., economic, societal). Some of the considerations would, among other things, include: consumer acceptance, defeat strategies, unintended consequences of warnings, need for an incapacitation sensor, etc. NHTSA is seeking feedback on the following questions. lotter on DSK11XQN23PROD with PROPOSALS2 Questions on Vehicle Warnings Once Impairment Is Detected 5.1. NHTSA is aware of many vehicle manufacturers using visual/auditory warnings (e.g., a coffee cup icon) and encouraging drivers to take a break from the driving task. There are also visual/ auditory/haptic warnings to identify distracted driving or hands off the steering wheel while Level 2 driving automation systems are engaged. NHTSA is interested in any studies to support the effectiveness of these warnings, including designing against defeat strategies. NHTSA also seeks comment and studies on whether similar warnings may be effective for alcohol-impaired or incapacitated drivers or would additional interventions be needed. The system attributes that enhance a system’s effectiveness are of particular interest to NHTSA. Are there any unintended consequences from these warnings? If so, what are they? 5.2. NHTSA’s research suggested that indicators of alcohol impairment are often also potential indicators of other conditions, such as drowsiness. Hence, the preventative measures of each condition may need to be addressed differently. For example, distracted drivers can quickly return their attention to the driving task, and drowsy drivers can recover with adequate rest as an intervention, but drunk drivers may need a much longer recovery time VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 as alcohol metabolizes.196 NHTSA therefore requests research and information on what warning strategy would effectively encourage both drivers that are alcohol-impaired and drivers that have a different impairment to improve their performance in the driving task (e.g., by resting, getting a caffeinated beverage)? Or is there research to support that a warning would only be effective for a distracted driver or a drowsy driver, but may aggravate an alcohol-impaired driver? Are there other adverse consequences from using warnings to address multiple types of impairment? If so, what are they? 5.3. NHTSA seeks comment on how manufacturers balance multiple alerts in response to different impairment detections. Given the many forms of impairment, if systems are developed that can distinguish effectively between alcohol impairment and other forms, is it practicable to employ a variety of different responses? Will multiple warnings (auditory, visual, or haptic) or other interventions for different forms of impairment only serve to confuse drunk drivers and lessen effectiveness for responses to drunk driving? 5.4. NHTSA seeks comment on how warnings, especially multiple warnings, may impact drivers with an auditory or sensory processing disability. Would multiple warnings distract some drivers? 5.5. NHTSA seeks comment on how systems react if the drowsy driver (or other inattentive or impaired driver) does not respond to warnings? What types of warning escalation strategies (timing, perceived urgency, and frequency) are used in industry and are they consistent among manufacturers? c. Vehicle Interventions Once Impairment Is Detected (On-Road) The most challenging countermeasure for preventing drunk and impaired driving fatalities is implementing vehicle interventions while the vehicle is in motion. There are a variety of strategies that have been under research, in development, or in production. Some are discussed below: Limp Home Mode—once impairment (or incapacitation) is detected, the vehicle speed is reduced to a lower speed for a given amount of time. Adaptive cruise control with a long following gap setting could be turned on to prevent a forward crash with other vehicles. Systems may provide the 196 Hancock, P.A. (2017). Driven to distraction and back again. In Driver Distraction and Inattention (pp. 9–26). CRC Press. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 driver a warning that the driver needs to leave the highway. Stop in Lane—depending upon the vehicle manufacturer, the vehicle reduces speed and ultimately stops in the lane after a given time period of unresponsiveness of the driver (typically when the Level 2 driving automation system is engaged), putting on emergency flashers and unlocking the doors for easier entry into the vehicle. This presents a new hazard to motorists approaching the stopped vehicle, and a different kind of hazard for occupants of the stopped vehicle (i.e., the original hazard was the drunk driver, but now the hazard is potentially being hit by other motorists). Some SAE Level 2 driving automation systems make use of this feature if the driver becomes unresponsive and some also can call for assistance. Pull over to the Slow Lane (Right Lane) or Shoulder—some vehicle manufacturers have introduced more advanced concept or production vehicles that can pull over to the side of the road or into the ‘‘slow lane’’ once driver impairment (or incapacitation) is detected when Level 2 systems are engaged.197 This requires the vehicle to be equipped with lane-changing capability, where a vehicle needs to be able to understand whether there are vehicles or other road users in (or approaching) its blind spot in order to make a lane change. Modern vehicles increasingly have the technology to detect lane lines and blind spots, and to automate lane changes, under certain circumstances. For example, in 2019, media reports suggested a Volvo system would detect drunkenness, drowsiness, or distraction,198 and interventions could include limiting the speed of the vehicle or slowing it down and safely parking the car.199 The agency believes this Volvo system will not be available on production vehicles in the U.S. until 2024.200 The agency will evaluate technologies as they become available. Questions on Vehicle Interventions Once Detected (On-Road) 6.1. What types of vehicle interventions are in use today for SAE Level 2 driving automation systems when the system detects the driver is incapacitated? What prevents their use 197 https://www.forbes.com/wheels/advice/ automatic-emergency-stop-assistance/. 198 https://www.motortrend.com/news/volvodrunk-driving-distracted-cameras-sensors-safety/. 199 https://www.theverge.com/2019/3/20/ 18274235/volvo-driver-monitoring-camera-drunkdistracted-driving. 200 https://www.volvocars.com/us/cars/ex90electric/. E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules in being coupled with driver impairment or BAC detection technology? What is the feasibility of using these interventions without engaging Level 2 driving automation? 6.2. Stopping in the middle of the road could introduce new motor vehicle safety problems, including potential collisions with stopped vehicles and impaired drivers walking in the roadway. What strategies can be used to prevent these risks? How are risks different if the vehicle stops on the shoulder of the road? What preventative measures could be implemented for vehicles approaching the stopped vehicle? What are the risks to occupants involved in those scenarios? 6.3. What is the minimum sensor and hardware technology that would be needed to pull over to a slower lane or a shoulder and the cost? lotter on DSK11XQN23PROD with PROPOSALS2 Questions on Other Approaches To Reduce Impaired Driving 7.1. As vehicle technologies continue to develop with potential to reduce impaired driving, what steps or approaches should NHTSA consider now, including potential partnerships with States or other entities? 7.2. Which best practices have States found most effective in reducing impaired driving? Have States found approaches such as sharing information about drunk driving convictions to be helpful in reducing impaired driving? V. Summary of Other Efforts Related to Impaired Driving NHTSA is aware of several other ongoing efforts by external entities to establish performance requirements for systems to detect alcohol impairment or otherwise influence the development of such performance requirements. SAE International has developed SAE J3214, a ‘‘Breath-Based Alcohol Detection System’’ standard. This standard focuses on directed breath zero-tolerance systems, which are systems that look for any level of alcohol via the driver’s BrAC and require that a driver direct a breath toward a device for measurement. The standard was published on June 27, 2021.201 The various New Car Assessment Programs (NCAPs) from around the world are also considering protocols for detection of driver state and system warning or intervention.202 Euro NCAP 201 https://www.sae.org/standards/content/j3214_ 202101/. 202 NHTSA’s New Car Assessment Program (NCAP) provides comparative information on the safety performance of new vehicles to assist customers with vehicle purchasing decisions and to encourage safety improvements. In addition to star VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 focuses on DMS and while its assessment protocol mentions impaired driving, the actual assessment focuses only on distraction, fatigue (i.e., drowsiness), and unresponsive drivers.203 Euro NCAP currently describes no specific assessment for alcohol impairment. Euro NCAP Vision 2030 states that expanding the program’s scope of driver impairment by adding specific detection of driving under the influence is a priority for the mid-term: ‘‘. . . [A] key real-world priority for the midterm therefore is to expand the scope of driver impairment adding specific detection of driving under the influence and sudden sickness with advanced vision and/or biometric sensors and introducing more advanced requirements for risk mitigation functions.’’ 204 Mid-term is not defined in the text of the document, but a graphic indicates that 2032 is Euro NCAP’s targeted timeline. Even so, NHTSA is monitoring Euro NCAP’s efforts to see if they might be leveraged in this rulemaking activity. NHTSA’s understanding is that Australasian NCAP is considering protocols like Euro NCAP. Additionally, NHTSA has sought comment on the inclusion of DMS and alcohol detection systems in U.S. NCAP.205 NHTSA is in the process of considering all comments received and drafting a final decision that will establish a roadmap that includes plans to upgrade U.S. NCAP in phases over the next several years. Other organizations, like Consumer Reports 206 and the Insurance Institute for Highway Safety (IIHS),207 include DMS in their programs. Finally, NHTSA is aware of and following the work of the Impairment Technical Working Group that is intended to assist with the implementation of advanced impaired driving technology.208 The group is coratings for crash protection and rollover resistance, the NCAP program recommends particular advanced driver assistance systems (ADAS) technologies and identifies the vehicles in the marketplace that offer the systems that pass NCAP performance test criteria for those systems. 203 https://cdn.euroncap.com/media/70315/euroncap-assessment-protocol-sa-safe-driving-v101.pdf. 204 https://cdn.euroncap.com/media/74468/euroncap-roadmap-vision-2030.pdf. 205 87 FR 13452 (March 9, 2022), available at https://www.federalregister.gov/documents/2022/ 03/09/2022-04894/new-car-assessment-program. 206 Driver Monitoring Systems Can Help You Be Safer on the Road—Consumer Reports. 207 IIHS creates safeguard ratings for partial automation. 208 U.S. Senator Ben Ray Luja ´ n (2022) Luja´n, Advocates Announce Technical Working Group to Implement Advanced Impaired Driving Prevention Technology. June 14, 2022. https://www.lujan. senate.gov/newsroom/press-releases/ %EF%BF%BClujan-advocates-announce-technicalworking-group-to-implement-advanced-impaireddriving-prevention-technology/. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 855 chaired by members of the Johns Hopkins Center for Injury Research and Policy at the John Hopkins Bloomberg School of Public Health and MADD. The Impairment Technical Working Group formed with the goal of ‘‘identifying efficient and effective approaches for implementing driver impairment prevention technology in new cars.’’ The Impairment Technical Working Group is one of many groups or organizations interested in influencing this rulemaking proceeding. On April 18, 2023, the Impairment Technical Working Group issued a short ‘‘Views Statement’’ that included three recommendations for implementing advanced impaired driving technology.209 These three recommendations are largely duplicative of the mandate in BIL but deviate slightly in that they explicitly request that multiple impairment types be included through this rulemaking (i.e., not limited to alcohol impairment). Also, the group’s three recommendations, when read together, describe the group’s preference for the third (i.e., hybrid) option in BIL. VI. Privacy and Security In considering next steps, NHTSA is aware of the need for comprehensive analysis of the privacy considerations that are relevant to developing performance requirements for systems that would identify and prevent individuals who are intoxicated from driving. Per the E-Government Act of 2002 and internal DOT policies and procedures, NHTSA intends to conduct a privacy threshold analysis (PTA) to determine whether the agency should publish a draft Privacy Impact Assessment (PIA) concurrent with its issuance of a regulatory proposal that would establish performance requirements for advanced impaired driving technology. Although NHTSA welcomes privacy-related comments in response to this advance notice of proposed rulemaking, the agency expects that any future regulatory proposal and any accompanying draft PIA would provide the public with more detailed analysis necessary to evaluate potential privacy risks and proposed mitigation controls associated with advanced impaired driving technology. NHTSA also intends to consider closely any potential security implications that are relevant to developing performance requirements 209 https://advocacy.consumerreports.org/ research/technical-working-group-on-advancedimpaired-driving-prevention-technology-viewsstatement-on-implementing-driver-impairmentprevention-technology/. E:\FR\FM\05JAP2.SGM 05JAP2 856 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 for systems that would identify and prevent individuals who are intoxicated from driving. NHTSA requests comments on privacy and security issues that the agency should consider while developing its proposal. NHTSA acknowledges that many of the answers to these questions would be designspecific, and thus, expects that commenters might provide generalized input now with more specific input at the proposal stage. Questions About Privacy and Security Considerations 8.1. NHTSA understands that personal privacy considerations are critical to the design of any system that monitors driver behavior or condition. Such considerations are also one component of consumer acceptance of systems described in this advance notice of proposed rulemaking. NHTSA seeks comment on privacy considerations related to use and potential storage of data by alcohol and impairment detection systems and how best to preserve driver and passenger personal privacy. Are there strategies or requirements (e.g., prohibitions on camera-based DMS from recording certain types of imagery) to protect privacy? 8.2. Given the potential for different privacy impacts associated with different types of systems and information used in those systems, how should NHTSA weigh the different potential privacy impacts? For example, how should accuracy be weighed against privacy? Do certain metrics result in less privacy impact than others while providing the same or more accuracy? If so, how? 8.3. What performance-based security controls should NHTSA consider including in its potential performance requirements for advanced impaired driving technology? Are there any industry or voluntary standards specific to these technologies that NHTSA should consider? If not, which standards do commenters believe would be most appropriate for these systems to comply with and why? 8.4. Are there any additional security vulnerabilities that these systems would present that do not already exist in modern vehicles (e.g., passenger vehicles that are equipped with various technologies such as automatic emergency braking, lane keeping support, and others)? If so, what needs to be done to mitigate those potential vulnerabilities? 8.5. What suggestions do commenters have regarding how the agency should go about educating the public about security and privacy aspects of VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 advanced impairment and drunk driving detection technology? VII. Consumer Acceptance As discussed in the authority section of this document, consumer acceptance is one component of practicability that NHTSA must consider when developing a FMVSS. NHTSA is aware that a combination of misinformation related to advanced drunk and impaired driving technologies, and misbelief that there exists a right to drive while drunk 210 have resulted in some individuals believing that this rulemaking is pursuing a course of action that might unduly infringe upon their rights. NHTSA has received correspondence that leads the agency to believe that some individuals believe that they not only have a right to drive,211 but a right to drive while intoxicated by alcohol.212 As NHTSA has said before, driving is a privilege, not a right.213 These examples highlight potential consumer acceptance challenges, but not all such instances would be considered legitimate or sufficient to undermine the practicability prong of the Safety Act. Additionally, NHTSA is encouraged by the results of a recent study conducted by researchers with Johns Hopkins Bloomberg School of Public Health and published in the Journal of the American Medical Association Network Open.214 This study provides survey results from a relatively small210 https://www.rollingstone.com/culture/culturenews/tiktok-drunk-driving-booze-cruise-gangalcohol-1234588210/. NHTSA would believe this trend was entirely edgy satire if it had not received correspondence that indicates that some genuinely believe they have a right to drive drunk. ‘‘Few would react the same to someone announcing they occasionally text while driving as they would to admitting to the occasional booze cruise while statistically there isn’t much difference in added danger.’’ NHTSA agrees that both texting while driving and driving while intoxicated are dangerous activities that put the safety of the public at risk. 211 NHTSA has said before that driving is a privilege, not a fundamental right. See https:// www.nhtsa.gov/open-letter-driving-public#:∼:text= Driving%20is%20a%20privilege%2C %20and,to%20protect%20all%20of%20us. Obeying the rules of the road is a prerequisite for the privilege of driving. See https://www.nhtsa.gov/ teen-driving/parents-hold-keys-safe-teen-driving. 212 Assertions that drunk driving is acceptable, or even a right, are not new. This 1984 opinion piece in the New York Times provides an example of someone who thought he was entitled to drive drunk, seemingly because he hadn’t killed or injured anyone yet. See https://jalopnik.com/checkout-this-pro-drunk-driving-op-ed-the-nyt-publishe1847408294; https://www.nytimes.com/1984/06/03/ nyregion/long-island-opinion-drinking-and-drivingcan-mix.html. Please visit the docket for a letter NHTSA received that appears to assert that some individuals should be permitted to drive drunk. 213 Id. 214 https://jamanetwork.com/journals/jama networkopen/fullarticle/2803962?utm_source=For_ The_Media&utm_medium=referral&utm_ campaign=ftm_links&utm_term=042023. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 scale study with the objective of measuring public support for driver monitoring and lockout technologies. The survey contained two parts, one part querying whether participants supported or opposed ‘‘the recent action by Congress to require drunk driving prevention in all new vehicles.’’ The second part ask participants to indicate their level of agreement regarding six different warning or lockout technologies. A five-point scale was used for responses to both parts of the survey (strongly agree to strongly disagree). The primary findings of the study were that support for the congressional mandate on vehicle impairment detection technology was high, with 63.4 percent of respondents supporting the law (survey part 1.) For survey part 2, the author reported that 64.9 percent of respondents either agreed or strongly agreed with the statement, ‘‘All new cars should have an automatic sensor to prevent the car from being driven by someone who is over the legal alcohol limit.’’ Results for neutral and negative responses were only reported in graphical form, not exact measurements (i.e., reported percentages and confidence intervals). Safety is the predominant consideration when evaluating potential vehicle performance requirements designed to combat drunk driving effectively. However, the public may not realize estimated associated benefits if vehicle performance requirements and the technologies that meet them are not designed to differentiate with precision drivers who are impaired from those who are not, minimize interventions to those necessary to achieve results, and conform with principles of human factors engineering and design. Question About Consumer Acceptance 9.1. NHTSA requests comment on legitimate consumer acceptance issues related to advanced drunk and impaired driving technologies and suggestions for how the agency might be able to craft future proposed performance requirements to remedy any consumer acceptance issues. VIII. General Questions for the Public In the preceding preamble, NHTSA seeks comment on a variety of complex issues related to establishing a new FMVSS to require that passenger motor vehicles be equipped with advanced drunk and impaired driving prevention technology. These questions are numbered and included throughout the preamble text in the appropriate sections. But not all questions fit neatly under the preceding titles. As such, E:\FR\FM\05JAP2.SGM 05JAP2 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules NHTSA also seeks comment on the remaining questions listed below. 10.1. NHTSA seeks comment on any reliability or durability considerations for alcohol impairment detection technology that may impact functionality over its useful life. 10.2. NHTSA requests any information regarding the final installed costs, including maintenance costs, of impairment detection systems. 10.3. Should NHTSA propose a standardized telltale 215 or indicator 216 (or set of telltales) indicating that impairment has been detected (and/or that vehicle systems have been limited in response)? Are there standardized industry telltales or indicators already developed for this sort of system that NHTSA should consider? 10.4. NHTSA broadly seeks comment on how to best ensure that manufacturers have the flexibility to develop more effective impairment detection technology while preserving a minimum level of accuracy and reliability. 10.5. Should NHTSA consider establishing a requirement that allows a vehicle’s BAC detection threshold to be adjusted downward based on the BAC thresholds of local jurisdictions or fleet owners? Note, this technology would not be intended or designed to replace a State’s enforcement of its own statutes. 10.6. Earlier in this document, NHTSA noted that progress in reducing drunk driving resulting from many means an optical signal that, when illuminated, indicates the actuation of a device, a correct or improper functioning or condition, or a failure to function. 216 Indicator means a device that shows the magnitude of the physical characteristics that the instrument is designed to sense. lotter on DSK11XQN23PROD with PROPOSALS2 215 Telltale VerDate Sep<11>2014 18:20 Jan 04, 2024 Jkt 262001 behavioral safety campaigns has plateaued. Should NHTSA devote more of its behavioral safety resources towards those programs and efforts that address underlying contributors to alcohol use disorder, including drunk driving, like mental health conditions? Are there effective behavioral safety campaigns or tactics NHTSA is not using? IX. Rulemaking Analyses A. Executive Order 12866, Executive Order 13563, Executive Order 14094, and DOT Regulatory Policies and Procedures The agency has considered the impact of this ANPRM under Executive Orders (E.O.) 12866, 13563, 14094 and the Department of Transportation’s regulatory policies and procedures. This action has been determined to be significant under E.O. 12866 (Regulatory Planning and Review), supplemented and reaffirmed by E.O. 13563 and amended by E.O. 14094, and DOT Order 2100.6A, ‘‘Rulemaking and Guidance Procedures.’’ It has been reviewed by the Office of Management and Budget under E.O. 12866. E.O. 12866 and 13563 require agencies to regulate in the ‘‘most cost-effective manner,’’ to make a ‘‘reasoned determination that the benefits of the intended regulation justify its costs,’’ and to develop regulations that ‘‘impose the least burden on society.’’ Additionally, E.O. 12866 and 13563 require agencies to provide a meaningful opportunity for public participation, and E.O. 14094 affirms that regulatory actions should ‘‘promote equitable and meaningful participation by a range of interested or affected parties, including underserved PO 00000 Frm 00029 Fmt 4701 Sfmt 9990 857 communities.’’ We have asked commenters to answer a variety of questions to elicit practical information about the approach that best meets these principles and the Safety Act and any relevant data or information that might help support a future proposal. B. Privacy Act Anyone can search the electronic form of all documents received into any of NHTSA’s dockets by the name of the individual submitting the document (or signing it, if submitted on behalf of an association, business, labor union, etc.). As described in the system of records notice DOT/ALL 14 (Federal Docket Management System), which can be reviewed at https:// www.transportation.gov/individuals/ privacy/privacy-act-systemrecordsnotices, the comments are searchable by the name of the submitter. C. Regulation Identifier Number (RIN) The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.5. Ann Carlson, Acting Administrator. [FR Doc. 2023–27665 Filed 1–4–24; 8:45 am] BILLING CODE 4910–59–P E:\FR\FM\05JAP2.SGM 05JAP2

Agencies

[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Proposed Rules]
[Pages 830-857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27665]

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Vol. 89

Friday,

No. 4

January 5, 2024

Part II

Department of Transportation

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National Highway Traffic Safety Administration

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49 CFR Part 571

Advanced Impaired Driving Prevention Technology; Proposed Rule

Federal Register / Vol. 89 , No. 4 / Friday, January 5, 2024 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2022-0079]
RIN 2127-AM50

Advanced Impaired Driving Prevention Technology

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: This document initiates rulemaking that would gather the
information necessary to develop performance requirements and require
that new passenger motor vehicles be equipped with advanced drunk and
impaired driving prevention technology through a new Federal Motor
Vehicle Safety Standard (FMVSS). In this document, NHTSA presents its
various activities related to preventing drunk and impaired driving and
discusses the current state of advanced impaired driving technology.
NHTSA also asks many questions to gather the information necessary to
develop a notice of proposed rulemaking on advanced drunk and impaired
driving technology.

DATES: Comments should be submitted no later than March 5, 2024.

ADDRESSES: You may submit comments to the docket number identified in
the heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: 1200 New Jersey Avenue SE, West
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
Instructions: All submissions must include the agency name and
docket number. Note that all comments received will be posted without
change to https://www.regulations.gov, including any personal
information provided. Please see the Privacy Act discussion below.
NHTSA will consider all comments received before the close of business
on the comment closing date indicated above. To the extent possible,
the agency will also consider comments filed after the closing date.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov at any time or to
1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays. Telephone: 202-366-9826. Confidential Business
Information: If you wish to submit any information under a claim of
confidentiality, submit these materials to NHTSA's Office of the Chief
Counsel in accordance with 49 CFR part 512. All requests for
confidential treatment must be submitted directly to the Office of the
Chief Counsel. NHTSA is currently treating electronic submission as an
acceptable method for submitting confidential business information to
the agency under part 512. If you claim that any of the information or
documents provided in your response constitutes confidential business
information within the meaning of 5 U.S.C. 552(b)(4), or are protected
from disclosure pursuant to 18 U.S.C. 1905, you may submit your request
via email to Dan Rabinovitz in the Office of the Chief Counsel at
dot.gov">Daniel.Rabinovitz@dot.gov. Do not send a hardcopy of a request for
confidential treatment to NHTSA's headquarters.

FOR FURTHER INFORMATION CONTACT: Ms. Chontyce Pointer, Office of Crash
Avoidance Standards, Telephone: 202-366-2987, Ms. Sara R. Bennett,
Telephone: 202-366-7304 or Mr. Eli Wachtel, Telephone: 202-366-3065,
Office of Chief Counsel. Address: National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Introduction
A. Background Information About Impaired Driving States
B. Many Different Behavioral Strategies Exist, Yet Impaired
Driving Persists
C. NHTSA's Authority
III. Advanced Drunk and Impaired Driving Prevention Safety Problem
A. Drunk Driving
B. Distracted Driving
C. Drowsy Driving
IV. Overview of Current Efforts To Address Drunk and Impaired
Driving
A. State and Federal Behavioral Prevention Activities
1. Deterrence
2. Prevention
3. Communications Campaigns
4. Alcohol and Drug Treatment, Monitoring, and Control
B. Vehicle-Based Countermeasures
1. Summary of Research on Vehicle-Based Countermeasures
2. Passive Detection Methods and Available Technologies
3. Proposed Vehicle Interventions Once Driver Impairment or BAC
Is Detected
V. Summary of Other Efforts Related to Impaired Driving
VI. Privacy and Security
VII. Consumer Acceptance
VIII. General Questions for the Public
IX. Rulemaking Analyses and Notices
A. Executive Order 12866, Executive Order 13563, Executive Order
14094, and DOT Regulatory Policies and Procedures
B. Privacy Act
C. Regulation Identifier Number (RIN)

I. Executive Summary

Alcohol-impaired driving \1\ is a major cause of crashes and
fatalities on America's roadways. The National Highway Traffic Safety
Administration (NHTSA) has been actively involved in addressing
alcohol-impaired driving since the 1970s. Recent developments in
vehicle technology present new opportunities to further reduce drunk
and impaired driving crashes and fatalities or eliminate them
altogether. Private and public researchers have also made significant
progress on technologies that are capable of measuring and quantifying
driver state and performance (e.g., hands on the steering wheel, visual
gaze direction, lane position). However, harnessing these technologies
for drunk and impaired driving detection and prevention remains a
significant challenge. NHTSA's information gathering and research
efforts have found that several technologies show promise for detecting
various states of impairment, which for the purposes of this document
are alcohol, drowsiness, and distraction. However, technological
challenges, such as distinguishing between different impairment states,
avoiding false positives, and determining appropriate prevention
countermeasures, remain. Due to technology immaturity and a lack of
testing protocols, drugged driving is not being considered in this
advance notice of proposed rulemaking.
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\1\ This document discusses both drunk driving and alcohol-
impaired driving. Drunk driving, as used in this document, is
understood to be operating a vehicle at or above the threshold of
alcohol concentration in the blood established by law. Alcohol-
impaired driving describes the entire set of impairments of various
driving-related skills and can occur at lower concentrations of
alcohol.
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The Infrastructure Investment and Jobs Act (Bipartisan
Infrastructure Law or BIL) directs NHTSA to issue a final rule
establishing a Federal Motor Vehicle Safety Standard (FMVSS) that
requires new passenger vehicles to have

[[Page 831]]

``advanced drunk and impaired driving prevention technology'' by
2024.\2\ The BIL also provides that an FMVSS should be issued only if
it meets the requirements of the National Traffic and Motor Vehicle
Safety Act. (``Safety Act''). BIL defines the relevant technology as
technology that can passively \3\ and accurately monitor driver
performance to detect impairment or passively and accurately measure
driver blood alcohol concentration (BAC) (or both in combination) and
prevent or limit vehicle operation if impairment is detected. Given the
current state of driver impairment detection technology, NHTSA is
issuing this advance notice of proposed rulemaking (ANPRM) to inform a
possible future FMVSS that can meet the requirements of the Vehicle
Safety Act.
---------------------------------------------------------------------------

\2\ Infrastructure Investment and Jobs Act, Public Law 117-58,
135 Stat. 429 section 24220 (2021).
\3\ For the purposes of this document, NHTSA uses the term
``passive'' to mean that the system functions without direct action
from vehicle occupants. Further information about the use of the
term ``passive'' is available in the ``NHTSA's Authority'' section.
---------------------------------------------------------------------------

This ANPRM presents a summary of NHTSA's knowledge of alcohol's
impact on driver performance and seeks comment on a variety of issues
related to the state of development of driver impairment detection
technologies. It also sets forth the research and technological
advancements necessary to develop a FMVSS for driver impairment. This
document also presents three regulatory options for how the agency
might mitigate driver impairment: blood alcohol content detection,
impairment-detection (driver monitoring), or a combination of the two.

II. Introduction

Driver impairment, as used in reference to motor vehicle safety, is
a broad term that could encompass many different driver states that
present operational safety risks.\4\ There is no clear and consistent
engineering or industry definition of ``impairment.'' ``Impaired'' can
mean anything that diminishes a person's ability to perform driving
tasks and increases the likelihood of a crash. Considering this, driver
impairment would include drunk and drugged driving,\5\ but it could
also include drowsy driving, distracted driving,\6\ driving while
experiencing an incapacitating medical emergency or condition, or any
other factor that would diminish driver performance and increase
potential crash risk. All these driver states present operational
safety risks, and each presents differing problem sizes and degrees of
risk, underlying causes, states of research, data demonstrating risks
from that driver state, and potential vehicle technological
countermeasures that could resolve or mitigate resulting operational
safety risks. Additionally, not all states of driver impairment are
immediately redressable, meaning that while a vehicle safety system
might help a distracted or drowsy person pay attention again, it may
not help a driver be less alcohol- or drug-impaired. This difference
among the driver impairment states is particularly important when
considering what type of standard or countermeasure would be the most
appropriate.
---------------------------------------------------------------------------

\4\ Part 392 of the Federal Motor Carrier Safety Regulations
prohibits any driver from operating a commercial motor vehicle (CMV)
while the driver's ability or alertness is so impaired, or so likely
to become impaired, through fatigue, illness, or any other cause, as
to make it unsafe for him/her to continue to operate the CMV. In
addition, part 392 prohibits drivers from operating a CMV while (1)
under the influence of, or using, specified drugs and other
substances, and (2) under the influence of, or using, alcohol within
specified time and concentration limits. Further, part 392 prohibits
drivers from texting or using a hand-held mobile telephone while
driving a CMV.
\5\ Drugged driving is excluded from the scope and is discussed
more in the Introduction, A. ``Background information about impaired
driving states'' of this document.
\6\ NHTSA has stated that distracted driving includes talking on
mobile phones, texting, eating, and other non-driving activities.
---------------------------------------------------------------------------

The negative economic and societal impacts related to impaired
driving are enormous and devastating in the United States. Recent NHTSA
research has identified the scope of causal factors associated with
fatal and non-fatal injuries in crashes, revealing key differences
among outcomes associated with reported contributory factors versus
estimated causal factors.\7\ NHTSA estimates here that in 2021:
approximately 12,600 traffic fatalities were ``caused by alcohol
impairment,'' versus approximately 13,400 fatalities ``involving
alcohol;'' 12,400 fatalities were ``due to distraction'' \8\, but and
drowsy driving led to at least 684 fatalities. Differences in values
associated with reported contributory factors versus causal factors are
driven by offsetting forces; underreporting is a predominant issue for
estimates of fatalities and injuries caused by distraction and possibly
drowsy driving, while at least some fatalities and non-fatal injuries
associated with alcohol and distraction likely had other causal
factors. The enormous safety potential of addressing the three states
of impaired driving considered here impels NHTSA's activities relating
to driver impairment.
---------------------------------------------------------------------------

\7\ Comprehensive economic costs account for the total societal
harm associated with fatalities and injuries, including economic
impacts and valuations of lost quality-of-life. See Blincoe, L.,
Miller, T., Wang, J.-S., Swedler, D., Coughlin, T., Lawrence, B.,
Guo, F., Klauer, S., & Dingus, T. (2023, February). The economic and
societal impact of motor vehicle crashes, 2019 (Revised) (Report No.
DOT HS 813 403). National Highway Traffic Safety Administration.
\8\ Fatalities ``involving reported distraction'' refers to
fatalities where a law enforcement officer reported a driver in a
fatal crash as having been distracted at the time of the crash,
which is associated with underreporting of all crashes, fatalities,
and injuries involving and caused by distraction.
---------------------------------------------------------------------------

With respect to alcohol impairment, NHTSA has been conducting
behavioral research and implementing behavioral safety strategies and
programs, public education, and enforcement campaigns to combat drunk
driving. Despite these efforts, which have contributed to significant
declines in fatalities over the past several decades, drunk driving
remains a significant safety risk for the public. NHTSA is also engaged
in technology-based research. This includes better understanding of the
technological capabilities that measure drivers' eye movements and
vehicle inputs. In addition, through the Driver Alcohol Detection
System for Safety (DADSS) program, NHTSA is actively involved in
cutting-edge research to help develop technology to quickly,
accurately, and passively \9\ detect a driver's BAC. Upon completion of
this development work, this technology may prevent drivers from
shifting their vehicles into gear if they attempt to operate the
vehicle at a BAC above the legal limit. NHTSA believes that the passive
DADSS technology, still in development, may be one way to meet the BIL
mandate, and that prevention of drunk driving is the best way to reduce
the number of crashes and resulting fatalities and injuries that occur
due to alcohol-impaired driving.
---------------------------------------------------------------------------

\9\ The previous DADSS technology requires a directed breath
toward a sensor to measure breath alcohol concentration (BrAC). The
DADSS research and development effort is continuing to focus on
developing technology that does not require a directed breath to
detect the presence of alcohol.
---------------------------------------------------------------------------

Concerted efforts by NHTSA, States, and other partners to implement
proven strategies generated significant reductions in alcohol-impaired
driving fatalities since the 1970s when NHTSA records began; but
progress has stalled. Between 2011 and 2020, an average of almost
10,500 people died each year in alcohol-impaired driving crashes. The
agency has seen record increases in overall traffic fatalities over the
last few years of the COVID-19 pandemic, likely reflecting increases in
alcohol- and

[[Page 832]]

drug-impaired driving.\10\ While the causes of the recent fatality
increases require further study and NHTSA continues to support
strategies to change driver behavior, more must be done to reach our
goal of zero traffic fatalities. Accordingly, in January 2022, DOT
issued its National Roadway Safety Strategy (NRSS) to address the
crisis of deaths on the nation's roadways.\11\ The NRSS adopts the Safe
Systems Approach \12\ as the guiding paradigm to address roadway safety
and focuses on five key objectives: safer people, safer roads, safer
vehicles, safer speeds, and improved post-crash care. The Safe System
Approach works by building and reinforcing multiple layers of
protection both to prevent crashes from happening in the first place
and to minimize the harm to those involved when crashes do occur.\13\
Drunk and impaired driving is an NRSS priority.\14\ The NRSS's Safe
System Approach involves using all available tools, including
education, outreach, enforcement, and engineering solutions, including
motor vehicle technologies like alcohol, drowsiness, and visual
distraction detection systems.\15\ Vehicle technologies that can help
prevent and mitigate risky behaviors and driver impairment are a key
element of the safer vehicles element of this approach. To complement
behavioral campaigns, which have reduced, but not eliminated, driving
while impaired,\16\ NHTSA is considering what technological
countermeasures and performance requirements could be applied to motor
vehicles that would achieve the NRSS safety objectives. Graph 1
provides an overview of the alcohol-impaired fatalities since the early
1980s.
---------------------------------------------------------------------------

\10\ Office of Behavioral Safety Research (2021, October).
Continuation of research on traffic safety during the COVID-19
public health emergency: January-June 2021. (Report No. DOT HS 813
210). National Traffic Safety Administration.
\11\ Available at https://www.transportation.gov/NRSS.
\12\ https://safety.fhwa.dot.gov/zerodeaths/docs/FHWA_SafeSystem_Brochure_V9_508_200717.pdf.
\13\ United States Department of Transportation (2022, October).
What is a safe system. Website: https://www.transportation.gov/NRSS/SafeSystem.
\14\ It also observes that considerable progress in behavioral
research has been made to advance the knowledge and understanding of
the physiological effects of both alcohol- and drug-impaired
driving.
\15\ Id. at 16.
\16\ Taylor, C.L., Byrne, A., Coppinger, K., Fisher, D.,
Foreman, C., & Mahavier, K. (2022, June). Synthesis of studies that
relate amount of enforcement to magnitude of safety outcomes (Report
No. DOT HS 813 274-A). National Highway Traffic Safety
Administration.
[GRAPHIC] [TIFF OMITTED] TP05JA24.001

Addressing each impaired driving state has its own set of unique
challenges. For some, such as alcohol, technological solutions are not
yet readily available that would consistently prevent a significant
proportion of crashes caused by that impaired driving state. For
others, such as distraction and drowsiness, there is evidence that
police-reported crash data likely underestimate their role in crash
causation. Amidst this uncertainty, the agency has many questions that
must be answered to develop a proposal that will meet all statutory
requirements and Departmental priorities.
Given the breadth of impairment states, severities, detection
technologies, and interventions, it is valuable to take this
opportunity to clarify the scope of this effort. In view of the larger
number of fatalities associated with alcohol impairment and the well-
defined legal thresholds and measurements available for alcohol
impairment, as compared with other types of impairment, NHTSA is
focusing this ANPRM on alcohol impairment.\17\ However, based on the
language in BIL, NHTSA believes that Congress did not intend to limit
NHTSA's efforts under BIL to alcohol impairment. Therefore, while
alcohol impairment is the focus, this ANPRM also covers two additional
impairment states: drowsy driving and distracted driving. NHTSA chose
these states for two reasons. First, the size of the safety problem--in
particular that of distracted driving--is immense. Second, certain
sensor technologies that have the potential to detect or assist in
detecting alcohol impairment and are or can be incorporated into driver
monitoring systems (DMS) may also have the potential to detect drowsy
and distracted driving. Including these impairment states in this
effort therefore presents an opportunity to deliver significant
additional safety benefits to the American people. These technological
considerations are discussed in greater detail in Section IV. B.
``Vehicle Based Countermeasures''.
---------------------------------------------------------------------------

\17\ Meaning that metrics, such as BAC, currently exist to
measure the type of impairment.
---------------------------------------------------------------------------

Additionally, it is important to understand the many challenges
with trying to identify and prevent the different types of impaired
driving with a single performance standard. The agency is interested in
learning more from commenters about what technologies and associated
metrics might identify multiple types of

[[Page 833]]

impaired drivers.\18\ Also, as discussed in later sections, one of the
options the agency is considering presents challenges with accurately
differentiating alcohol impairment from other types of impairment, like
drowsiness, assuming differentiation is desired and necessary to select
appropriate alerts, warnings, or interventions. In later sections, we
discuss different types of impairment that might be identified by a
particular technology.
---------------------------------------------------------------------------

\18\ The realization of additional safety benefits may depend on
the performance requirements chosen by NHTSA, or the technological
solution deployed by manufacturers.
---------------------------------------------------------------------------

It is also important to be clear here that driving while impaired
with drugs other than alcohol (drugged driving) is not within the scope
of this ANPRM even though drug impairment is also a significant
problem. Many different drugs can affect drivers, and current knowledge
about the effects of each on driving performance is limited.
Furthermore, the technology and testing protocols for drugs other than
alcohol, in the driving context, are not mature enough to indicate the
degree of impairment and the risk of crash involvement that results
from the use of individual drugs. Therefore, drugged driving is beyond
the scope of this rulemaking effort but remains important to the
Department and agency as it addresses fatal and serious crashes. The
complexities inherent in the drugged driving safety problem are
discussed in more detail in the following section.

A. Background Information About Impaired Driving States

Drunk Driving
Alcohol \19\ impairment can lead to altered and negative behaviors,
as well as physical conditions that increase the risk of unintentional
injuries, particularly when driving. Alcohol is known to impair various
driving-relevant abilities such as perception, visuomotor coordination,
psychomotor performance, information processing and decision making,
and attention management.\20\ When consumed, alcohol is absorbed from
the stomach and distributed by the blood stream throughout the
body.\21\ BAC is measured as the weight of alcohol in a certain volume
of blood and expressed in grams per deciliter (g/dL).\22\ The rise and
fall of alcohol in the bloodstream (and thus, the BAC) depends on the
interplay between various factors that determine the metabolization of
alcohol within the person's body including frequency and amount of
alcohol consumed, age, gender, body mass, consumption of other food,
genetic factors, and time since alcohol consumption.\23\
---------------------------------------------------------------------------

\19\ The term alcohol in this report refers to ethyl alcohol, or
ethanol, which is the principal ingredient in alcoholic drinks and
the substance measured to determine blood alcohol concentration.
\20\ Moskowitz, H., & Burns, M. (1990). Effects of alcohol on
driving performance. Alcohol Health & Research World, 14(1), 12-15.
\21\ Paton, A. (2005). Alcohol in the body. BMJ, 330(7482), 85-
87.
\22\ National Highway Traffic Safety Administration. (2016). The
ABCs of BAC: A guide to understanding blood alcohol concentration
and alcohol impairment. Retrieved from https://www.nhtsa.gov/document/theabcsofbac.
\23\ Zakhari, S. (2006). Overview: how is alcohol metabolized by
the body? Alcohol research & health, 29(4), 245.
---------------------------------------------------------------------------

In the United States, in general, a BAC of .08 g/dL and higher in
drivers is defined as legally impaired \24\ and a condition for arrest
(in Utah, a BAC at or above .05 g/dL is the illegal limit). However,
alcohol-impairment of various driving-related skills can occur at lower
concentrations, and alcohol-impaired drivers can pose serious injury
risks to themselves and others with any amount of alcohol in their
bodies. As alcohol BAC levels rise in a person's system, the negative
effects on the central nervous system increase.\25\ Alcohol affects the
body in a way that negatively impacts the skills needed for a person to
drive safely because it impairs the function of the brain that relates
to thinking, reasoning, and muscle coordination.\26\ Table 1 provides
an overview of the typical and predictable effects on driving over a
range of BAC levels.
---------------------------------------------------------------------------

\24\ 23 U.S.C. 163.
\25\ https://www.nhtsa.gov/risky-driving/drunk-driving#the-issue-alcohol-effects.
\26\ https://www.nhtsa.gov/risky-driving/drunk-
driving#:~:text=Alcohol%20is%20a%20substance%20that,the%20central%20n
ervous%20system%20increase.

Table 1--Effects of Alcohol on Driving 27 28
------------------------------------------------------------------------
Blood alcohol concentration Predictable effects
(g/dL) Typical effects on driving
------------------------------------------------------------------------
.02......................... Some loss Decline in
of judgment. visual functions
Relaxation. (rapid tracking of
Slight body a moving target).
warmth. Decline in
Altered ability to perform
mood. two tasks at the
same time (divided
attention).
.05......................... Exaggerated Reduced
behavior. coordination.
May have Reduced
loss of small- ability to track
muscle control moving objects.
(e.g., focusing Difficulty
your eyes). steering.
Impaired Reduced
judgment. response to
Euphoric emergency driving
feeling. situations.
Lowered
alertness.
Release of
inhibition.
.08......................... Muscle Reduced
coordination concentration.
becomes poor (e.g., Short-term
balance, speech, memory loss.
vision, reaction Reduced and
time, and hearing). erratic speed
Harder to control.
detect danger. Reduced
Impaired information
judgment, self- processing
control, reasoning, capability (e.g.,
and memory. signal detection,
visual search).
Impaired
perception.
.10......................... Clear Reduced
deterioration of ability to maintain
reaction time and lane position and
control. brake
appropriately.
Slurred
speech, poor
coordination, and
slowed thinking.
.15......................... Far less Substantial
muscle control than impairment in
normal. vehicle control,
Vomiting attention to
may occur (unless driving task, and
this level is in necessary visual
reached slowly or a and auditory
person has information
developed a high processing.
tolerance for
alcohol).

[[Page 834]]

Significant
loss of balance.
------------------------------------------------------------------------

The driving skill decrements in Table 1 provide a means of
approximating the impairment correlated with BAC levels. However, BAC
is a measure of the amount of alcohol in the bloodstream rather than a
reliable indicator of the degree of impairment.^{29 30} At
least two factors contribute to the lack of a precise one-to-one
correlation between BAC and impairment. First, regular drinkers may
learn strategies for more cautious driving to compensate for their
perceived skill decrements.^{31 32} Second, there is also
empirical evidence that some regular drinkers develop a higher
tolerance to alcohol, which results in less apparent declines in
cognitive and motor performance after consuming low to moderate
doses.\33\ Therefore, BAC levels provide an imperfect measurement of
probable impairment. Nearly two thirds of all alcohol-impaired
fatalities involve high blood alcohol levels with a BAC level at or
greater than 0.15 g/dL.\34\ Yet even a small amount of alcohol can
affect an individual's driving ability. In 2020, there were 2,041
people killed in alcohol-related crashes where a driver had a BAC level
of .01 to .07 g/dL.
---------------------------------------------------------------------------

\27\ Table 1 should be used as a reference point for population-
level analysis. The outlined effects may apply to certain
individuals, but for the reasons discussed above, may vary from
individual to individual. It should also be noted that while some
effects are listed at multiple BACs (e.g., difficulty steering), the
effects are more likely to occur and more severe at higher BACs.
Information in this table shows the BAC level at which the effect
usually is first observed.
\28\ Adapted from National Highway Traffic Safety
Administration. (2016). The ABCs of BAC: A guide to understanding
blood alcohol concentration and alcohol impairment. Retrieved from
https://www.nhtsa.gov/document/theabcsofbac.
\29\ Fillmore, M.T., & Vogel[hyphen]Sprott, M.J.A.C. (1998).
Behavioral impairment under alcohol: cognitive and pharmacokinetic
factors. Alcoholism: Clinical and experimental research, 22(7),
1476-1482.
\30\ Nicholson, M.E., Wang, M., Airhihenbuwa, C.O., Mahoney,
B.S., Christina, R., & Maney, D.W. (1992a). Variability in
behavioral impairment involved in the rising and falling BAC curve.
Journal of Studies on Alcohol, 53(4), 349-356.
\31\ Burian, S.E., Hensberry, R., & Liguori, A. (2003).
Differential effects of alcohol and alcohol expectancy on
risk[hyphen]taking during simulated driving. Human
Psychopharmacology: Clinical and Experimental, 18(3), 175-184.
\32\ Vogel-Sprott, M. (1997). Is behavioral tolerance learned?
Alcohol health and research world, 21(2), 161.
\33\ Id.
\34\ https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813120.
---------------------------------------------------------------------------

State alcohol impairment laws and alcohol detection devices focus
on measuring the alcohol concentration in BAC and breath alcohol
concentration (BrAC). These are the two measurements that State laws
and alcohol detection devices utilize to determine whether someone is
considered driving over the legal limit (i.e., whether the person can
be considered driving drunk, with ``drunk'' being defined as above the
threshold of alcohol concentration established by law). BrAC is
measured with a breath test device that measures the amount of alcohol
in a driver's breath. BAC is usually measured via a blood test.
Technology is under development that would allow for measurement in new
ways. For example, one technology uses touch- or tissue-based detection
of light absorption at pre-selected wavelengths from a beam of light
reflected from within the skin tissue after an optical module is
touched. In other words, BAC is calculated either by a blood test or,
in the future, after someone touches a sensor and that sensor
calculates the BAC level in the person's blood. NHTSA acknowledges that
people may be affected by alcohol at levels below the legal limit used
in most States (.08 g/dL), which is why the agency noted above that
there are still crashes where alcohol is involved, but the driver's BAC
was lower than the legal limit. NHTSA discusses each of these
measurements and the vehicle technologies that can measure them later
in this document.
Drugged Driving
Drugged driving, though important to prevent, is not included in
the scope of this advance notice of proposed rulemaking. There are
several complexities to understanding drugged or drug-involved
driving.\35\ To begin, the term drugs can refer to over-the-counter
medications, prescription medications, and illicit drugs. Also, the
mere presence of a drug in a person's system does not necessarily
indicate impairment. Currently, most information collected on drugs
within the driving context can provide information only on whether a
driver is ``drug positive.'' \36\ The presence of some drugs can remain
in the body a considerable time after use, so presence at any point
does not necessarily mean the person was or remains impaired by the
drug.\37\ For some drivers, certain prescribed medications, which may
be included in a positive drug test result, may be necessary for safe
driving.
---------------------------------------------------------------------------

\35\ Berning, A., Smith, R. Drexler, M., Wochinger, K. (2022).
Drug Testing and Traffic Safety: What You Need to Know. United
States. Department of Transportation. (Report No. DOT HS 813 264).
Washington, DC. National Highway Traffic Safety Administration.
\36\ ``Drug positive'' indicates that a driver has tested
positive for a drug (or drugs). However, testing positive for a drug
does not indicate impairment nor any degree of potential impairment.
\37\ Berning, et al., 2022.
---------------------------------------------------------------------------

Further, there are a wide range of drugs other than alcohol that
can be used by drivers. There is limited research on crash risk and how
each specific drug affects driving related skills, and the technology
and testing protocols are not mature in the driving context. Today's
knowledge about the effects of any drug other than alcohol on driving
performance remains insufficient to draw connections between their use,
driving performance, and crash risk.\38\
---------------------------------------------------------------------------

\38\ Compton, R., Vegega, M. Smither, D. (2009). Drug Impaired
Driving: Understanding the Problem and Ways to Reduce It. DOT HS 811
268. Washington, DC. NHTSA.
---------------------------------------------------------------------------

Recently, more research has been directed to the effects of
cannabis, and specifically Tetrahydrocannabinol (THC), the active
component of cannabis that can cause impairing effects on driving that
might lend themselves to the development of THC-impaired driving
detection techniques, like those that have been developed by NHTSA for
use by law enforcement for alcohol-impaired driving.^{39 40}
However, many of these effects may also be caused by alcohol, other
drugs, and other impairment states like distraction, drowsiness, and
incapacitation. Current knowledge about the effects of cannabis on
driving is insufficient to allow specification of a simple measure of

[[Page 835]]

driving impairment outside of controlled conditions.\41\
---------------------------------------------------------------------------

\39\ Harris, D.H., Dick, R.A., Casey, A.M., and Jarosz, C.J.
(1980) The Visual Detection of Driving While Intoxicated: Field Test
of Visual Cues and Detection Methods. DOT-HS-905-620. Washington,
DC: NHTSA.
\40\ Stuster, J.W. (1997). The Detection of DWI at BACs Below
0.10. (Report No. DOT HS 808 654). Washington, DC: U.S. Department
of Transportation, NHTSA.
\41\ Compton, R. (2017). Marijuana-Impaired Driving--A Report to
Congress. DOT HS 812 440. Washington, DC. NHTSA.
---------------------------------------------------------------------------

Given these challenges, the agency is not yet considering
developing performance requirements and a FMVSS for drug impaired
driving.
Distracted Driving
NHTSA defines ``driver distraction'' as inattention that occurs
when drivers divert their attention away from the driving task to focus
on another activity.\42\ In general, distractions derive from a variety
of sources including electronic devices, such as navigation systems and
mobile phones, as well as conventional distractions such as sights or
events external to the vehicle, interactions with passengers, and
eating or drinking. These distracting tasks can affect drivers in
different ways, and can be categorized into the following types:
---------------------------------------------------------------------------

\42\ 78 FR 24,817 (proposed April 26, 2013). Visual-Manual NHTSA
Driver Distraction Guidelines for In-Vehicle Electronic Devices.

--Visual distraction: Tasks that require or cause the driver to look
away from the roadway to visually obtain information.
--Manual distraction: Tasks that require or cause the driver to take a
hand off the steering wheel and manipulate a device or object.
--Cognitive distraction: Tasks that require or cause the driver to
divert their mental attention away from the driving task.

Research has shown that eyes-off-road time provides an objective
measure of visual distraction, which has a demonstrated relationship
with crash risk. Analyses of naturalistic data have shown that eyes-
off-road times greater than 2.0 seconds have been shown to increase
crash risk at a statistically significant level. Further, the risk of a
crash or near-crash event increases rapidly as eyes-off-road time
increases above 2.0 seconds.\43\ There has been little agreement in the
field regarding how to identify and measure cognitive distraction,
however.\44\
---------------------------------------------------------------------------

\43\ Klauer, S.G., Dingus, T.A., Neale, V.L., Sudweeks, J.D., &
Ramsey, D.J. (2006). The impact of driver inattention on near-crash/
crash risk: An analysis using the 100-car naturalistic driving study
data (No. DOT HS 810 594). United States. Department of
Transportation. National Highway Traffic Safety Administration.
\44\ Young, R. (2012). Cognitive distraction while driving: A
critical review of definitions and prevalence in crashes. SAE
International journal of passenger cars-electronic and electrical
systems, 5(2012-01-0967), 326-342.
---------------------------------------------------------------------------

Distraction can negatively affect driving performance in various
ways depending on the type(s) of distraction(s), the demands of the
driving task and the secondary task(s), and other factors. These
effects can include decrements to reaction time, hazard detection,
lateral control (i.e., lane-keeping), and longitudinal control (e.g.,
speed or following gap), as well as changes to eye movements (e.g.,
glance patterns, eyes-off-road time), and driver
workload.^{45 46 47} For example, a meta-analysis aggregating
the results of 18 simulator experiments and naturalistic driving
studies reported that typing or reading text messages while driving
significantly slowed reaction time, increased lane deviations, and
increased eyes-off-road time.\48\
---------------------------------------------------------------------------

\45\ Regan, M.A., Lee, J.D., & Young, K. (2008). Driver
distraction: Theory, effects, and mitigation. CRC press.
\46\ Young, K. & Regan, M. (2007). Driver distraction: A review
of the literature. In: I.J. Faulks, M. Regan, M. Stevenson, J.
Brown, A. Porter & J.D. Irwin (Eds.). Distracted driving. Sydney,
NSW: Australasian College of Road Safety. Pages 379-405.)
\47\ Papantoniou, P., Papadimitriou, E., & Yannis, G. (2017).
Review of driving performance parameters critical for distracted
driving research. Transportation research procedia, 25, 1796-1805.
\48\ Caird, J.K., Johnston, K.A., Willness, C.R., Asbridge, M.,
& Steel, P. (2014). A meta-analysis of the effects of texting on
driving. Accident Analysis & Prevention, 71, 311-318.
---------------------------------------------------------------------------

These degradations in driving performance due to distraction have
been shown to translate into an increased risk of crash or near-crash
involvement. An analysis of the second Strategic Highway Research
Program (SHRP2) Naturalistic Driving Study \49\ found that, when
compared to alert and attentive driving, the odds of a crash were
doubled when a driver was distracted, with secondary tasks that divert
the driver's eyes away from the forward roadway having the largest
multiplicative increase in crash risk (e.g., dialing a handheld mobile
phone increased crash risk by 12.2x, reading/writing increased crash
risk by 9.9x, and reaching for a non-mobile device increased crash risk
by 9.1x).\50\ A similar study found that the use of handheld mobile
phones in general, and specifically performing tasks with visual and
manual elements (such as texting), were significantly associated with
increased crash involvement.\51\
---------------------------------------------------------------------------

\49\ SHRP2 large scale data collection effort. Data were
collected from over 3,000 drivers. For more information see: https://www.fhwa.dot.gov/goshrp2/Solutions/All/NDS/Concept_to_Countermeasure__Research_to_Deployment_Using_the_SHRP2_Safety_Data.
\50\ Dingus, T.A., Guo, F., Lee, S., Antin, J.F., Perez, M.,
Buchanan-King, M., & Hankey, J. (2016). Driver crash risk factors
and prevalence evaluation using naturalistic driving data.
Proceedings of the National Academy of Sciences, 113(10), 2636-2641.
\51\ Owens, J.M., Dingus, T.A., Guo, F., Fang, Y., Perez, M., &
McClafferty, J. (2018). Crash risk of cell phone use while driving:
A case-crossover analysis of naturalistic driving data. AAA
Foundation for Traffic Safety. https://aaafoundation.org/wp-content/uploads/2018/01/CellPhoneCrashRisk_FINAL.pdf.
---------------------------------------------------------------------------

Outside of naturalistic driving studies, the role of distraction in
crashes can be difficult to determine because pre-crash distractions
often leave no evidence for law enforcement officers or crash
investigators to observe, and drivers are often reluctant to admit to
having been distracted prior to a crash. A NHTSA analysis of causal
factors for fatal and non-fatal injuries estimates that 29 percent of
fatal and non-fatal injuries are due to distraction. This estimate is
over three times larger than the police-reported share of fatal crashes
involving distraction (8.2% of all traffic fatalities in 2021, as
reported in the Fatality Analysis Reporting System (FARS)). The
difference between these values reflects the large role that
underreporting of distraction plays in identifying distraction as a
traffic safety risk. Distraction-affected crashes are a relatively new
measure that focuses on distractions that are most likely to influence
crash involvement, such as dialing a mobile phone or texting, and
distraction by an outside person/event.\52\ It is also worth noting
that many studies on distracted driving and its consequences were
conducted prior to the proliferation of smartphones, navigation apps
and devices, and built-in technologies. Consequently, it is possible
that distraction-related crashes will escalate as the prevalence,
diversity, and use of new technologies continue to increase.
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\52\ NHTSA. (2012). Blueprint for ending distracted driving
(Report No. DOT HS 811 629). www.nhtsa.gov/sites/nhtsa.dot.gov/files/811629.pdf.
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Currently, text messaging is banned for drivers in 48 States,
handheld mobile phone use is prohibited in 31 States (e.g., hands-free
laws), and 36 States prohibit all mobile phone use by novice
drivers.\53\ When paired with high visibility enforcement campaigns,
mobile phone and text messaging laws were shown to reduce drivers' use
of handheld mobile phones in several pilot programs.\54\
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\53\ https://www.ghsa.org/state-laws/issues/distracted%20driving.
\54\ Chaudhary, N.K., Casanova-Powell, T.D., Cosgrove, L.,
Reagan, I., & Williams, A. (2014, March). Evaluation of NHTSA
distracted driving demonstration projects in Connecticut and New
York (Report No. DOT HS 81 635). National Highway Traffic Safety
Administration.
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Drowsy Driving
Drowsiness is ``the intermediate state between wakefulness and
sleep as defined electro-physiologically by the pattern of brain waves
(e.g., electroencephalogram--EEG), eye

[[Page 836]]

movements, and muscle activity.'' \55\ Driver drowsiness has a variety
of biological contributors, including sleeplessness or sleep
deprivation, changes in sleep patterns, untreated sleep disorders, and
use of drugs with sedative effects, including alcohol.\56\ Driver
drowsiness can lead to impairments in cognitive and psychomotor speed,
attentional distribution, vigilance, and working memory.\57\
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\55\ Johns, M.W. (2000). A sleep physiologist's view of the
drowsy driver. Transportation research part F: traffic psychology
and behaviour, 3(4), 241-249.
\56\ https://www.cdc.gov/sleep/features/drowsy-driving.html.
\57\ Goel, N., Rao, H., Durmer, J.S., & Dinges, D.F. (2009,
September). Neurocognitive consequences of sleep deprivation. In
Seminars in neurology (Vol. 29, No. 04, pp. 320-339).
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Within the driving context, performance measures that have shown
drowsiness-related decrements include lane keeping and lane
departures,\58\ slower driving speed and decreased speed stability,\59\
and longer reaction times.\60\ Drowsiness can progress into microsleep
and sleep events, in which the driver may experience cognitive and/or
visual lapses of increasing duration, posing increasingly serious risks
of crash involvement.\61\ Situational factors such as increasing time
on task and monotony of driving environment can contribute to driver
drowsiness.\62\
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\58\ Fairclough SH, Graham R. Impairment of driving performance
caused by sleep deprivation or alcohol: A comparative study. Human
Factors. 1999; 41(1):118-128.
\59\ Soares, S., Monteiro, T., Lobo, A., Couto, A., Cunha, L., &
Ferreira, S. (2020). Analyzing driver drowsiness: From causes to
effects. Sustainability, 12(5), 1971.
\60\ Kozak, K., Curry, R., Greenberg, J., Artz, B., Blommer, M.,
& Cathey, L. (2005, September). Leading indicators of drowsiness in
simulated driving. In Proceedings of the Human Factors and
Ergonomics Society Annual Meeting (Vol. 49, No. 22, pp. 1917-1921).
\61\ Blaivas, A. J., Patel, R., Hom, D., Antigua, K., &
Ashtyani, H. (2007). Quantifying microsleep to help assess
subjective sleepiness. Sleep medicine, 8(2), 156-159.
\62\ Thiffault, P., & Bergeron, J. (2003). Monotony of road
environment and driver fatigue: a simulator study. Accident Analysis
& Prevention, 35(3), 381-391.
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While driver drowsiness cannot be measured directly, it can be
indirectly detected and measured using both objective and subjective
measures. Objective measures related to driver drowsiness include
physiological signals of brain activity (e.g., EEG, EKG,\63\, EOG
\64\), other biological markers (e.g., heart rate, respiration,
galvanic skin response), measures based on observations of the driver
(e.g., head pose, eye closure, blink rate), and vehicle control
measures (e.g., steering wheel angle, lane departures, speed
variation). Using multiple measures in combination may increase the
accuracy and reliability of drowsiness detection.\65\
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\63\ Electrocardiogram (EKG or ECG).
\64\ Electroocoulogram (EOG).
\65\ Albadawi, Y., Takruri, M., & Awad, M. (2022). A review of
recent developments in driver drowsiness detection systems. Sensors,
22(5), 2069.
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Among brain activity measures, EEG is most frequently used to
measure brain states, including drowsiness.\66\ While factors such as
individual differences, time of day, and other non-drowsiness related
brain activity can be confounding factors, signal markers in EEG data
can indicate the presence and degree of drowsiness.\67\ While EEG and
some other direct brain measures are advancing in their ease of use and
portability, they are generally not feasible for in-vehicle use at the
present time.
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\66\ De Gennaro, L., Ferrara, M., Curcio, G., & Cristiani, R.
(2001). Antero-posterior EEG changes during the wakefulness-sleep
transition. Clinical neurophysiology, 112(10), 1901-1911.
\67\ Stancin, I., Cifrek, M., & Jovic, A. (2021). A review of
EEG signal features and their application in driver drowsiness
detection systems. Sensors, 21(11), 3786.
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Camera-based-systems, however, are increasingly feasible and common
in vehicles. Camera-based systems have the potential to measure a wide
array of driver head and face characteristics that may be indicative of
drowsiness, including driver head pose, driver gaze activity (e.g.,
number and distribution of glances), the percentage of time the
driver's eyes are closed (i.e., PERCLOS \68\), blink speed, eye closure
duration, yawns, and other facial expressions.
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\68\ Hanowski, R.J., Bowman, D., Alden, A., Wierwille, W.W., &
Carroll, R. (2008). PERCLOS+: Development of a robust field measure
of driver drowsiness. In 15th World Congress on Intelligent
Transport Systems and ITS America's 2008 Annual Meeting.
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As noted previously, driver drowsiness tends to become
progressively more pronounced over time. The progressive nature of
driver drowsiness means that it is possible to estimate a driver's
future drowsiness state--seconds or even more than a minute into the
future--based on their current drowsiness state. Researchers have used
various physiological and behavioral measures to develop models to
predict drivers' subjective drowsiness,\69\ predict the occurrence of
microsleeps,\70\ and predict drowsiness as determined by coders looking
at video of drivers' faces.\71\ While limited research exists to
demonstrate the feasibility of drowsiness state prediction under real-
world driving conditions, further developments in drowsiness prediction
could allow vehicles to provide alerts and interventions to reduce the
risks of drowsy driving before they become severe.
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\69\ Murata, A., Ohta, Y., & Moriwaka, M. (2016). Multinomial
logistic regression model by stepwise method for predicting
subjective drowsiness using performance and behavioral measures. In
Proceedings of the AHFE 2016 International Conference on Physical
Ergonomics and Human Factors, July 27-31, 2016, Walt Disney
World[supreg], Florida, USA (pp. 665-674).
\70\ Watson, A., & Zhou, G. (2016, June). Microsleep prediction
using an EKG capable heart rate monitor. In 2016 IEEE First
International Conference on Connected Health: Applications, Systems
and Engineering Technologies (CHASE) (pp. 328-329). IEEE.
\71\ de Naurois, C.J., Bourdin, C., Stratulat, A., Diaz, E., &
Vercher, J.L. (2019). Detection and prediction of driver drowsiness
using artificial neural network models. Accident Analysis &
Prevention, 126, 95-104.
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As the detection and prediction of driver drowsiness within a
vehicle becomes increasingly feasible, it is possible to consider
potential vehicle-based countermeasures to reduce risk. While there is
limited research investigating interventions to reduce drowsy driving
risks, evidence suggests that auditory,\72\ visual,\73\ and seat belt
vibration \74\ warnings can help to improve drowsy drivers' driving
performance, and that there may be benefits to multi-staged warnings
relative to single-stage warnings.\75\
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\72\ Berka, C., Levendowski, D., Westbrook, P., Davis, G.,
Lumicao, M.N., Ramsey, C., . . . & Olmstead, R.E. (2005, July).
Implementation of a closed-loop real-time EEG-based drowsiness
detection system: Effects of feedback alarms on performance in a
driving simulator. In 1st International Conference on Augmented
Cognition, Las Vegas, NV (pp. 151-170).
\73\ Fairclough, S.H., & van Winsum, W. (2000). The influence of
impairment feedback on driver behavior: A simulator study.
Transportation human factors, 2(3), 229-246.
\74\ Arimitsu, S., Sasaki, K., Hosaka, H., Itoh, M., Ishida, K.,
& Ito, A. (2007). Seat belt vibration as a stimulating device for
awakening drivers. IEEE/ASME Transactions on mechatronics, 12(5),
511-518.
\75\ Gaspar, J.G., Brown, T.L., Schwarz, C.W., Lee, J.D., Kang,
J., & Higgins, J.S. (2017). Evaluating driver drowsiness
countermeasures. Traffic injury prevention, 18(sup1), S58-S63.
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B. Many Different Behavioral Strategies Exist, Yet Impaired Driving
Persists

Alcohol-impaired driving is a behavioral issue, and in general,
changing human behavior is particularly challenging.\76\ NHTSA has made
considerable progress in behavioral research to advance the knowledge
and understanding of the physiological

[[Page 837]]

effects of alcohol impairment on driving. Additionally, NHTSA has taken
a multi-pronged approach to trying to eliminate alcohol-impaired
driving. Four basic strategies are used to reduce impaired driving
crashes and driving under the influence:
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\76\ In the medical field, the National Institutes of Health
(NIH) established a program nearly 15 years ago to study behavior
change and try to identify the most successful mechanisms that
result in the most behavior change. They understood the problem and
developed interventions, but they really did not understand why the
intervention worked for some but not others. See https://scienceofbehaviorchange.org/what-is-sobc/ for an example of a NIH
project focusing on the science behind changing human behaviors.
---------------------------------------------------------------------------

1. Deterrence: enact, publicize, enforce, and adjudicate laws
prohibiting impaired driving so people choose not to drive impaired;
2. Prevention: reduce drinking and drug use to keep drivers from
becoming impaired;
3. Communications and outreach: inform the public of the dangers of
impaired driving and establish positive social norms that make driving
while impaired unacceptable; and
4. Alcohol and drug treatment: reduce alcohol and drug dependency
or addiction among drivers.\77\
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\77\ https://www.nhtsa.gov/book/countermeasures/alcohol-and-drug-impaired-driving/strategies-reduce-impaired-driving.
---------------------------------------------------------------------------

NHTSA uses and encourages a variety of different behavioral
strategies, focusing on those strategies that are demonstrably
effective.\78\ Some strategies, like laws, enforcement, criminal
prosecution, and offender treatment and monitoring, have a deterrent
effect. Other strategies focus on prevention, intervention,
communications, and outreach.\79\
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\78\ See https://www.nhtsa.gov/book/countermeasures/alcohol-and-drug-impaired-driving/countermeasures.
\79\ Id.
---------------------------------------------------------------------------

C. NHTSA's Authority

The National Traffic and Motor Vehicle Safety Act provides NHTSA
with broad authority to address motor vehicle safety problems like
driver impairment. Under the National Traffic and Motor Vehicle Safety
Act (49 U.S.C. 30101 et seq.) (Safety Act), the Secretary of
Transportation is responsible for prescribing motor vehicle safety
standards that are practicable, meet the need for motor vehicle safety,
and are stated in objective terms.\80\ ``Motor vehicle safety'' is
defined in the Safety Act as ``the performance of a motor vehicle or
motor vehicle equipment in a way that protects the public against
unreasonable risk of accidents occurring because of the design,
construction, or performance of a motor vehicle, and against
unreasonable risk of death or injury in an accident, and includes
nonoperational safety of a motor vehicle.'' \81\ ``Motor vehicle safety
standard'' means a minimum standard for motor vehicle or motor vehicle
equipment performance.\82\ When prescribing such standards, the
Secretary must consider all relevant, available motor vehicle safety
information.\83\ The Secretary must also consider whether a proposed
standard is reasonable, practicable, and appropriate for the types of
motor vehicles or motor vehicle equipment for which it is prescribed
and the extent to which the standard will further the statutory purpose
of reducing traffic crashes and associated deaths.\84\ The
responsibility for promulgation of FMVSS is delegated to NHTSA.\85\
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\80\ 49 U.S.C. 30111(a).
\81\ 49 U.S.C. 30102(a)(9).
\82\ Section 30102(a)(10).
\83\ Section 30111(b)(1).
\84\ Section 30111(b)(3)-(4).
\85\ 49 CFR 1.95.
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To meet the Safety Act's requirement that standards be
``practicable,'' NHTSA must consider several factors, including
technological and economic feasibility \86\ and consumer
acceptance.\87\ Technological feasibility considerations counsel
against standards for which ``many technical problems have been
identified and no consensus exists for their resolution . . . .'' \88\
However, it does not require that the technology be developed, tested,
and ready for deployment at the time the standard is promulgated.
Economic feasibility considerations focus on whether the cost on
industry to comply with the standard would be prohibitive. Finally,
NHTSA must consider consumer acceptance. In particular, the U.S. Court
of Appeals for the D.C. Circuit has noted that ``motor vehicle safety
standards cannot be considered practicable unless we know . . . that
motorists will avail themselves of the safety system. And it would be
difficult to term `practicable' a system . . . that so annoyed
motorists that they deactivated it.'' \89\ NHTSA also understands that
if consumers do not accept a required safety technology, the technology
will not deliver the safety benefits that NHTSA anticipates.\90\
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\86\ See, e.g., Paccar, Inc. v. Nat'l Highway Traffic Safety
Admin., 573 F.2d 632, 634 n.5 (`` `Practicable' is defined to
require consideration of all relevant factors, including
technological ability to achieve the goal of a particular standard
as well as consideration of economic factors.'') (citations and
quotations omitted).
\87\ Pac. Legal Found. v. Dep't of Transp., 593 F.2d 1338, 1345
(D.C. Cir. 1979) (noting in reference to practicable and meet the
need for safety, that ``the agency cannot fulfill its statutory
responsibility unless it considers popular reaction.'').
\88\ Simms v. Nat'l Highway Traffic Safety Admin., 45 F.3d 999,
1011 (6th Cir. 1995).
\89\ Pac. Legal Found., 593.F.2d at 1346. The court also noted
that the Secretary could reasonably anticipate consumers to be more
willing to accept airbags than automatic seatbelts and seatbelt
interlocks because airbags impose less on the driver and research
indicated a lower deactivation rate for airbags than interlock
systems.
\90\ See, 82 FR 3854, 3920. Due to the nature of the technology,
consumer acceptance was a key factor discussed in the 2017 NPRM on
vehicle-to-vehicle (V2V) technology. NHTSA also conducted
significant research into consumer acceptance and beliefs about V2V
technology.
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The Safety Act also contains a ``make inoperative'' provision,
which prohibits certain entities from knowingly modifying or
deactivating any part of a device or element of design installed in or
on a motor vehicle in compliance with an applicable FMVSS.\91\ Those
entities include vehicle manufacturers, distributors, dealers, rental
companies, and repair businesses. Notably, the make inoperative
prohibition does not apply to individual vehicle owners.\92\ While
NHTSA encourages individual vehicle owners not to degrade the safety of
their vehicles or equipment by removing, modifying, or deactivating a
safety system, the Safety Act does not prohibit them from doing so.
This creates a potential source of issues for solutions that lack
consumer acceptance, since individual owners would not be prohibited by
Federal law from removing or modifying those systems (i.e., using
defeat mechanisms).
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\91\ 49 U.S.C. 30122.
\92\ Letter to Schaye (9/9/19) (``The ``make inoperative''
provision does not apply vehicle owners, and these owners are not
precluded from modifying their vehicle by NHTSA's statutes or
regulations. State and local laws, however, may impact whether an
owner may use a vehicle they have modified in a particular
jurisdiction.''), available at https://www.nhtsa.gov/interpretations/571108-ama-schaye-front-color-changing-light.
---------------------------------------------------------------------------

Section 24220 of BIL, ``Advanced Impaired Driving Technology,''
\93\ directs NHTSA to issue a final rule prescribing an FMVSS ``that
requires passenger motor vehicles manufactured after the effective date
of that standard to be equipped with advanced drunk and impaired
driving prevention technology.'' \94\ NHTSA is required to issue such a
rule only if it would meet the criteria in section 30111 of the Safety
Act.\95\ As explained above, those criteria include, among other
things, that an FMVSS be objective, practicable, and meet the need for
motor vehicle safety. In analyzing these criteria, NHTSA must balance
benefits and costs and consider safety as the preeminent factor in its
considerations.\96\
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\93\ Infrastructure Investment and Jobs Act, Public Law 117-58,
section 24220 (2021).
\94\ Section 24220(c).
\95\ Section 24220(c), (e).
\96\ See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc.
v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 55 (1983)
(``The agency is correct to look at the costs as well as the
benefits of Standard 208 . . . When the agency reexamines its
findings as to the likely increase in seat belt usage, it must also
reconsider its judgment of the reasonableness of the monetary and
other costs associated with the standard. In reaching its judgment,
NHTSA should bear in mind that Congress intended safety to be the
preeminent factor under the Motor Vehicle Safety Act.'').

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[[Page 838]]

Section 24220 defines ``Advanced Drunk and Impaired Driving
Technology'' as a system that
(A) can--
(i) passively monitor the performance of a driver of a motor
vehicle to accurately identify whether that driver may be impaired; and
(ii) prevent or limit motor vehicle operation if an impairment is
detected; or
(B) can--
(i) passively and accurately detect whether the blood alcohol
concentration of a driver of a motor vehicle is equal to or greater
than the blood alcohol concentration described in section 163(a) of
title 23, United States Code; and
(ii) prevent or limit motor vehicle operation if a blood alcohol
concentration above the legal limit is detected; or
(C) is a combination of systems described in subparagraphs (A) and
(B).\97\
---------------------------------------------------------------------------

\97\ Section 24220(b).
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This means that a final rule could require vehicles be equipped
with a system that detects whether the driver is impaired (an
impairment-detection system); a system that detects whether the
driver's BAC is above a specified threshold (a BAC-detection system);
or a combination of these two systems. These options and the technology
that might fulfill each option are discussed in greater detail later in
this document.
Section 24220 further requires that the ``Advanced Drunk and
Impaired Driving Technology'' ``passively'' monitor performance or
detect BAC. For the purposes of this advance notice of proposed
rulemaking, NHTSA uses the term ``passive'' to mean that the system
functions without direct action from vehicle occupants.\98\ As such,
systems that require a ``directed breath'' towards a sensor, such as
the current DADSS reference designs (discussed later in this document)
or a breathalyzer that a driver must breathe into in order for the
system to detect alcohol would not be considered ``passive'' because
these designs require a vehicle occupant to take direct action (i.e.,
directed breath) for the system to function.
---------------------------------------------------------------------------

\98\ FMVSS Nos. 208, ``Occupant crash protection,'' and 212,
``Windshield mounting,'' use a similar definition for completely
passive protection systems for occupants. 49 CFR 571.208, 571.212.
DADSS has also viewed the term similarly. See Report to Congress on
Progress In-Vehicle Alcohol Detection Research, October 1, 2019
through September 30, 2020.
---------------------------------------------------------------------------

Section 24220 does not require that a final rule give manufacturers
the option of choosing between an impairment-detection and a BAC-
detection system. NHTSA understands the term ``impairment,'' for the
purposes of section 24220, to refer to alcohol-related impairment as
well as other types of driver impairment. Of course, regardless of how
the term ``impairment'' is construed for the purposes of section 24220,
NHTSA also has the authority under the Safety Act to issue an FMVSS
addressing any type of driver impairment if the standard would satisfy
the criteria in section 30111 of the Safety Act.
The new FMVSS would be required to apply to new vehicles that carry
12 or fewer individuals, not including motorcycles or trucks not
designed primarily to carry its operator or passengers.\99\
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\99\ Section 24220 (b)(3), referring to 49 U.S.C. 32101(consumer
information statutes).
---------------------------------------------------------------------------

BIL also establishes a series of deadlines and requirements for
NHTSA to report to Congress if those deadlines are not met. The
legislation directs NHTSA to issue a final rule (if it would meet the
section 30111 criteria) not later than November 15, 2024. If NHTSA does
not issue a rule by this date, it must submit a report to Congress
explaining (among other things) the reasons for not issuing a final
rule.\100\ NHTSA must submit such reports annually until it issues a
final rule or ten years has expired, from the date of enactment,
whichever comes first.\101\
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\100\ Section 24220 (e)(2). The report must also describe the
deployment of advanced drunk and impaired driving prevention
technology in vehicles, any information relating to the ability of
vehicle manufacturers to include advanced drunk and impaired driving
prevention technology in new passenger motor vehicles, and an
anticipated timeline for prescribing the Federal motor vehicle
safety standard.
\101\ Section 24220 (e)(2)-(3). If, after ten years, NHTSA has
not promulgated the FMVSS required by this subsection, the report
must state the reasons why the FMVSS was not finalized, the barriers
to finalizing the FMVSS, and recommendations to Congress to
facilitate the FMVSS.
---------------------------------------------------------------------------

III. Advanced Drunk and Impaired Driving Prevention Safety Problem

The overall safety problem caused by various types of states of
impaired driving is substantial, and those impaired states are part of
the causal chain for a large percentage of crashes in the United
States. A recent NHTSA report, ``The Economic and Societal Impact of
Motor Vehicle Crashes (2019),'' reviewed 2019 data and described the
state of safety prior to the COVID-19 pandemic.\102\ In 2019, the lost
lives and costs on our society stemming from motor vehicle crashes were
enormous--36,500 people were killed, 4.5 million people were injured,
and the economic costs of these crashes totaled $340 billion. Of this
$340 billion, nearly half ($167 billion) resulted from alcohol-involved
and distracted-driving crashes alone. Furthermore, the overall safety
problem has only gotten worse during the COVID-19 pandemic, as NHTSA
has confirmed that the increases in fatalities, injuries, and risky
driving that the country experienced in 2020 continued through the
first two quarters of 2022.\103\ Recent first quarter projections for
traffic fatalities in 2023 \104\ have reversed the trend, with NHTSA
estimating an overall fatality decrease of about 3.3 percent as
compared to the same time period in 2022. The second quarter of 2023
would represent the fifth straight quarterly decline in fatalities
after seven consecutive quarters of year-to-year increases in
fatalities, beginning with the third quarter of 2020. Please see Graph
2. Fatalities by Quarter \105\ below. While this is encouraging
overall, far too many people continue to die on our roads every year,
and drunk and impaired driving crashes still result in significant
numbers of those lives lost.
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\102\ Blincoe, L., Miller, T., Wang, J.S., Swedler, D.,
Coughlin, T., Lawrence, B., Guo, F. Klauer, S., & Dingus, T. (2023,
February). The economic and societal impact of motor vehicle
crashes, 2019 (Revised) (Report No. DOT HS 813 403). National
Highway Traffic Safety Administration.
\103\ See, for example, NHTSA Estimates: Traffic Deaths Third
Quarter of 2022 [verbar] NHTSA.
\104\ Crash Stats: Early Estimate of Motor Vehicle Traffic
Fatalities for the First Quarter of 2023 (dot.gov)
\105\ NHTSA (2023). Early Estimate of Motor Vehicle Traffic
Fatalities for the First Half (January-June) of 2023. Report No. DOT
HS 813 514. National Highway Traffic Safety Administration:
Washington, DC. (September)

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[[Page 839]]

[GRAPHIC] [TIFF OMITTED] TP05JA24.002

The introduction to this advance notice of proposed rulemaking
states that NHTSA is considering focusing primarily on alcohol
impairment, both because of the mandate in the BIL and because alcohol
impairment has the tangible strategies developed to identify it. But
the agency requests comment on this focus because of the danger that
other impaired states cause during the driving task and because some
options described in later sections provide the opportunity to resolve
multiple states of impairment with the same technological solution. In
this section, NHTSA will discuss the drunk, drowsy, and distracted
driving states that account for most of the fatalities and crashes
related to impaired driving. NHTSA has presented the safety problem in
this way because the agency is interested in proceeding with whatever
practical course of action results in the most lives saved and injuries
prevented in the shortest amount of time, regardless of what impaired
driving state is the root cause. Additionally, NHTSA believes the
public should be aware of the overall safety problem associated with
driver impairment so that it may have adequate information when
responding to NHTSA's questions about whether focusing on alcohol-
impairment is the best path forward to achieve improved motor vehicle
safety and protect the public from the complex behavioral issues that
result in driver impairment.
For this analysis, we consider the three categories of impaired
driving safety impacts most likely to be ameliorated by a safety
countermeasure arising from this ANPRM: drunk driving, drowsy driving,
and distracted driving. As mentioned in the introduction, NHTSA hopes
that the agency's approach may yield additional safety benefits by
considering all technologies that have the potential to mitigate or
prevent impaired driving fatalities and injuries.
The safety data on drunk driving, and the confidence in those data,
are much more substantial than data on other types of impaired driving,
and drunk driving results in serious loss of life, injury, and economic
costs to the public. This section will present estimates of annual
fatalities and injuries due to drunk, drowsy, and distracted driving.
It is also worth noting that in other recent rulemakings, NHTSA
decided not to use post-2019 data because the agency was not yet sure
whether the disturbing uptick in crashes and fatalities was an anomaly
or a trend that reflects a change in vehicle safety that would remain
for more than one year or the foreseeable future. Analysis since the
issuance of previous documents indicates that data from 2020 and 2021
highlight a potentially dangerous trend in the United States of an
increase in motor vehicle crashes and fatalities, which is why this
advance notice of proposed rulemaking differs from other documents
issued in the recent past in citing post-2019 data.

A. Drunk Driving

Per FARS, in 2021 there were 13,384 traffic fatalities in which at
least one driver had a BAC at or above .08 g/dL, (representing
approximately 31 percent of all traffic fatalities in the United
States). NHTSA's process for identifying fatalities due to drunk
driving begins by acknowledging that not all alcohol-related motor
vehicle fatalities and injuries are caused by alcohol consumption. In
NHTSA's fatality numbers reported in FARS, use of the term ``alcohol-
impaired'' does not indicate that a crash or a fatality was caused by
alcohol impairment, only that an alcohol-impaired driver was involved
in the crash. That is, some of the crashes may have involved causative
factors other than alcohol (e.g., one or multiple drivers or vehicles
associated with speeding, reckless behavior, or mechanical failure).
Critically for this advance notice of proposed rulemaking, NHTSA's
analysis has applied Blomberg et al.'s risk factors to estimate that
alcohol is indeed a causal factor in 94 percent of crashes involving at
least one driver with a BAC at or above .08 g/dL.\106\ Thus, the agency
estimates that, among all crashes, fatalities, and injuries involving
drivers that have a BAC at or above .08 g/dL, 94 percent of them are
due directly to

[[Page 840]]

alcohol consumption and are thus within the scope of impaired driving
countermeasures that would focus on the legal limit in most States (.08
g/dL). This yields an estimate of approximately 12,581 fatalities in
2021 due to alcohol impairment. At an estimated comprehensive economic
cost of approximately $12.7 million per fatality (adjusted to 2022
dollars using the GDP Implicit Price Deflator ^{107 108}),
fatalities in alcohol impairment-related crashes were associated with
societal safety costs of approximately $160 billion in 2021.
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\106\ Blincoe et al., 2023 Blomberg, R., Peck, R.C., Moskowitz,
H., Burns, M., & Fiorentino, D. (2005, September). Crash risk of
alcohol-involved driving: A case-control study. Dunlap and
Associates; Blincoe et al., 2023.
\107\ Blincoe et al., 2023.
\108\ https://fred.stlouisfed.org/series/USAGDPDEFAISMEI.
---------------------------------------------------------------------------

B. Distracted Driving

Historically, distracted driving crashes have been more difficult
to quantify than drunk driving crashes because unlike BAC, distraction
cannot yet be tested for objectively post-crash. However, Blincoe et
al. developed and implemented a methodology to estimate both: (1)
underreporting of cases involving distraction; and (2) the shares of
crashes, fatalities, and injuries caused by distraction.\109\ NHTSA
applies the results of Blincoe et al. here to 2021 FARS data to
estimate fatalities in 2021 due to distracted driving.
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\109\ Blincoe et al., 2023.
---------------------------------------------------------------------------

Blincoe et al. estimate that 28.9 percent of all crashes (and
injuries of all severities within crashes) are due to distraction.
Based on this estimate, the agency estimates that distracted driving
caused 12,405 fatalities in 2021. This represents a societal safety
cost of approximately $158 billion, an economic estimate of the loss of
life.
Dingus et al. report that approximately seven percent of cases of
distraction also involve some form of impairment. In turn, it is
appropriate to assume that there is at least some degree of overlap
among drunk driving and distracted driving fatalities. Thus, the
combined safety problem associated with drunk driving and distracted
driving is likely to be somewhat smaller than the sum of the individual
estimates above (i.e., distracted driving fatalities in 2021 not
jointly caused by alcohol would be up to 7% lower than the estimate of
12,405 fatalities above).

C. Drowsy Driving

Drowsy driving is more difficult to quantify than drunk driving
because, among other factors, there is not currently an accepted
standard definition of drowsiness in a driving context, nor a threshold
to define drowsiness as a causal factor in motor vehicle crashes. In
turn, the level of drowsiness-related crashes and injuries is subject
to faulty measurement, with underreporting more likely than
overreporting. In defining the drowsy driving safety problem, NHTSA
begins with estimates based on police-reported drowsiness as a
contributing factor, and then considers external estimates of
underreporting.
To estimate fatalities in 2021 associated with drowsy driving, the
agency analyzes fatalities reported in FARS in which at least one
driver was reported as asleep or drowsy: this revealed 684 fatalities,
or approximately 1.6 percent of total annual fatalities.
Applying estimates of the comprehensive economic costs of injury
from the last section, NHTSA estimates that reported fatalities
associated with drowsy driving in 2021 represent a social cost of
approximately $9 billion.
NHTSA's annual estimates of fatalities associated with drowsy
driving are consistent with other NHTSA estimates (e.g., annual
drowsiness-related fatality estimates in NHTSA's ``Drowsy Driving
2015'').^{110 111} However, the estimates are lower than other
external estimates, such as Tefft, which estimates that one-sixth of
traffic fatalities are associated with drowsiness,\112\ and Owens et.
al which estimates that approximately one-tenth of police-reportable
crashes are associated with drowsiness.\113\ NHTSA does not have
sufficient evidence regarding underreporting. On the other hand,
consistent with the discussion of drowsiness-related crashes and
acknowledges that underreporting distracted driving above, it is a
feasible constraint to estimating the scale of the that at least some
fatalities caused by drowsy driving safety problem. are also caused by
alcohol impairment or distraction (furthermore, the drowsiness itself
could be caused by drinking, and the distraction itself could be caused
by drowsiness). For this analysis, the agency applies its estimate as a
conservative estimate of a significant safety issue (i.e., NHTSA
expects the true annual safety costs associated with drowsy driving to
be at least as large as estimated here). The agency requests comment
and data regarding underreporting of drowsy driving, and
interdependencies among drunk driving, distracted driving, and drowsy
driving.
---------------------------------------------------------------------------

\110\ National Center for Statistics and Analysis. (2017
October). Drowsy Driving 2015 (CrashStats Brief Statistical Summary.
Report No. DOT HS 812 446). Washington, DC: National Highway Traffic
Safety Administration.
\111\ Knipling, R. & Wang, J. (1994). Crashes and fatalities
related to driver drowsiness/fatigue. Washington, DC: National
Highway Traffic Safety Administration.
\112\ Tefft, B. (2010). The Prevalence and Impact of Drowsy
Driving (Technical Report). Washington, DC: AAA Foundation for
Traffic Safety.
\113\ Owens, J.M., Dingus, T.A.. Guo, F., Fang, Y., Perez, M.,
McClafferty, J., & Tefft, B.C. (2018). Prevalence of Drowsy Driving
Crashes: Estimates from a Large-Scale Naturalistic Driving Study
(Research Brief). Washington, DC: AAA Foundation for Traffic Safety.
---------------------------------------------------------------------------

IV. Overview of Current Efforts To Address Drunk and Impaired Driving

NHTSA has a robust portfolio of behavioral-prevention and vehicle-
research activities focused on preventing drunk and impaired driving.
NHTSA believes that the combination of these strategies (i.e.,
behavioral strategies and vehicle-based countermeasures) is necessary
to move towards a nation where alcohol-impaired individuals are unable
to drive vehicles and put the lives of everyone around them at risk by
doing so. As discussed in the introduction, one of the effects that
leads drivers to take such unacceptable risks when intoxicated is
alcohol's impact on their brain, especially in impairing judgment.

A. State and Federal Behavioral Prevention Activities

Behavioral prevention activities are public-oriented strategies
intended to change the behaviors that lead to drunk and impaired
driving. This is distinguished from vehicle-based countermeasures,
which are discussed later in this document. To develop and implement
these behavioral strategies, NHTSA collaborates with a wide array of
national, regional, State, and local traffic safety partners, including
those in the following sectors: public safety and criminal justice;
medical, public health and emergency services; educators; parents; non-
profits; traffic safety organizations; and academic institutions. More
recently, NHTSA has expanded these partnerships to include substance
use prevention, mental health, and overall wellness efforts as part an
overall approach to address issues that lead to drunk and impaired
driving.
NHTSA's behavioral prevention activities can be categorized into
three main areas. First, NHTSA conducts research to identify the scope
of the issue and develop effective evidence-based strategies to address
the behaviors that lead to drunk and impaired driving. Second, NHTSA
distributes Federal grant funds to individual States, and these funds
are used for behavioral strategies.\114\ Each State is required to

[[Page 841]]

have a highway safety program, approved by the Secretary of
Transportation, that is designed to reduce traffic crashes and the
resulting deaths, injuries, and property damage. NHTSA provides grants
to each State for their highway safety program as well as funds to
address national priorities for reducing highway deaths and injuries,
such as impaired driving programs. Third, NHTSA works directly with
States and other stakeholders to develop, implement, and support
effective programs and strategies to stop drunk and impaired driving.
This includes demonstration projects, training and education for
traffic safety professionals, and communications campaigns to educate
the public. NHTSA also helps States use data to identify their highway
safety needs and evaluate safety programs and activities, and the
agency provides technical assistance and training to State program
managers.
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\114\ See, e.g., 23 U.S.C. 402 (fund that can be used for any
purpose); 23 U.S.C. 405(d) (priority funds, specifically for
impaired driving); 23 U.S.C. 154 (open container); 23 U.S.C. 164
(repeat offender).
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Below we briefly discuss four of the main drunk and impaired
driving behavioral strategies that help us execute our three main areas
mentioned above: Deterrence; Prevention; Communications and outreach;
and alcohol and drug treatment programs.\115\
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\115\ See Venkatraman, V., Richard, C.M., Magee, K., & Johnson,
K. (2021, July). Countermeasures that work: A highway safety
countermeasures guide for State Highway Safety Offices, 10th
edition, 2020 (Report No. DOT HS 813 097). National Highway Traffic
Safety Administration. (hereinafter Countermeasures that work).
Vehicle and infrastructure strategies can also reduce the likelihood
of crashes and/or injuries sustained by impaired drivers and
passengers, such as improved vehicle structures and centerline
rumble strips and barriers. These countermeasures are outside the
scope of this discussion.
---------------------------------------------------------------------------

1. Deterrence
Deterrence includes enacting laws that prohibit drunk and impaired
driving, publicizing and enforcing those laws, and identifying and
punishing offenders.\116\ Deterrence works by changing a driver's
behavior through concern for the consequences of certain behaviors,
such as being apprehended by law enforcement. Below we provide a brief
overview of activities in these areas with respect to drunk and
impaired driving, with a focus on State and Federal drunk driving laws
and NHTSA's efforts to support and develop training and best practices
for law enforcement, prosecutors, judges, and other public safety and
criminal justice partners.
---------------------------------------------------------------------------

\116\ Venkatraman, V., Richard, C.M., Magee, K., & Johnson, K.
(2021, July). Countermeasures that work: A highway safety
countermeasures guide for State Highway Safety Offices, 10th
edition, 2020 (Report No. DOT HS 813 097). National Highway Traffic
Safety Administration.
---------------------------------------------------------------------------

a. State and Federal Drunk Driving Laws
State laws, as well as Federal law governing the use of motor
vehicles on Federally owned land, prohibit operation of a motor vehicle
when the driver is at or exceeds the state's per se illegal limit
(i.e., BAC of .08 g/dL in all states, except Utah which has a .05 g/dL
illegal limit).
All States have enacted drunk driving laws. Some of these laws have
been incentivized by Federal law, because significant portions of the
Federal funds available to the States, including State Highway funds,
are conditioned on a State enacting and enforcing specific laws related
to drunk driving. This includes laws prohibiting operation of a motor
vehicle with a BAC of .08 percent or greater; \117\ laws prohibiting
individuals under the age of 21 from operating a motor vehicle with a
BAC of .02 percent or greater (zero-tolerance laws); \118\ laws setting
a minimum drinking age of 21; \119\ and laws prohibiting possession of
open alcohol beverage containers and consumption of alcohol in a
vehicle (open-container laws).\120\ If a State does not have the
required laws, it loses significant funding to which it would otherwise
be entitled. Accordingly, all States have enacted such laws.\121\ Many
States have also gone above and beyond the Federally-incentivized laws.
For instance, on December 30, 2018, Utah lowered its BAC threshold to
.05 g/dL for all drivers. Examples of other laws States have enacted
include driver license revocation or suspension if drivers fail or
refuse to take BAC tests, and increased penalties for repeat offenders
or for offenders with higher BACs.
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\117\ 23 U.S.C. 163.
\118\ 23 U.S.C. 161.
\119\ 23 U.S.C. 158.
\120\ 23 U.S.C. 154.
\121\ See https://www.ghsa.org/state-laws/issues/alcohol%20impaired%20driving (last accessed January 5, 2023);
https://www.ncsl.org/research/transportation/drunken-driving.aspx
(last accessed January 5, 2023).
---------------------------------------------------------------------------

The National Transportation Safety Board (NTSB) has recently
recommended that NHTSA seek legislative authority to award incentive
grants for States to establish a per se BAC limit of .05 or lower for
all drivers who are not already required to adhere to lower BAC
limits.\122\ In response to this recommendation, NHTSA published the
results of preliminary research on the effects of Utah's law.\123\ This
research suggests that the .05 g/dL per se law has had quantifiable
positive impacts on highway safety in Utah so that lower BAC thresholds
may be effective in further reducing alcohol-involved crashes. In
addition to these State laws, Federal regulations prohibit drunk
driving on Federal lands.\124\ An individual may not operate a motor
vehicle on Federal land if they are unable to safely operate the
vehicle due to the influence of alcohol or other drugs, or if their BAC
is .08 g/dL or greater.\125\ The law also authorizes testing of three
bodily fluids: blood, saliva, and urine. It includes stipulations
around proper administration of accepted scientific methods and
equipment used by certified personnel, noting that for blood sample
testing, there are further restrictions whereby normally a search
warrant is required from an authorized individual.
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\122\ https://www.ntsb.gov/safety/safety-studies/Documents/SR1301.pdf.
\123\ Thomas, F.D., Blomberg R., Darrah, J., Graham, L.,
Southcott, T., Dennert, R., Taylor, E., Treffers, R., Tippetts, S.,
McKnight, S., & Berning, A. (2022, February). Evaluation of Utah's
.05 BAC per se law. DOT HS 813 233. NHTSA.
\124\ 36 CFR 4.23.
\125\ If State law establishes more restrictive BAC limits,
those more restrictive limits supersede the .08 g/dL limit specified
in the Federal regulations.
---------------------------------------------------------------------------

b. Training and Best Practices for Law Enforcement, Prosecutors,
Judges, and Other Public Safety and Criminal Justice Partners
NHTSA actively supports efforts to develop training and best
practices for law enforcement, prosecutors, judges, and other public
safety and criminal justice partners regarding the detection,
prosecution, and adjudication of drunk and impaired driving. A brief
sampling of NHTSA's work in this area includes the following:
Development and application of field sobriety tests. In the mid-
1970s NHTSA, with the cooperation and assistance of the law enforcement
community, conducted research that resulted in a standardized battery
of three field sobriety tests (the horizontal gaze nystagmus test; the
walk-and-turn test; and the one-leg stand test). Police officers use
these tests to help establish probable cause for a driving while
intoxicated (DWI \126\) arrest.
---------------------------------------------------------------------------

\126\ DWI and DUI are used interchangeably throughout this
document.
---------------------------------------------------------------------------

Standards for alcohol breath-test devices. Evidential breath test
devices conform to established specifications and can be used as
evidence in court. NHTSA publishes standard specifications for
evidential breath-test devices, and a ``Conforming Products List'' of
alcohol testing and screening

[[Page 842]]

devices.\127\ Law enforcement officers use the totality of the evidence
in determining whether sufficient probable cause exists to effectuate
an arrest for drunk driving. This includes observation of the vehicle
in motion, results of the standardized field sobriety tests, and other
information to establish probable cause. An officer may use a
preliminary or evidential breath test device to measure BrAC. A suspect
may also be requested to provide a blood or urine sample.
---------------------------------------------------------------------------

\127\ Federal Register/Vol. 58, No. 179/pp 48705-48710/Friday,
September 17,1993/Notices (58 FR 48705) Federal Register/Vol. 77,
No. 115/pp 35745-35750/Thursday, June 14, 2012/Notices (77 FR 35745,
77 FR 35747).
---------------------------------------------------------------------------

Arrest and crash reporting. NHTSA provides training on arrest and
crash reporting to law enforcement so that the data collected during a
traffic stop or arrest, or at the scene of a crash, is uniform, clear,
and concise.
Training curriculum development for law enforcement, prosecutors,
judges, and other public safety and criminal justice partners. Through
cooperative agreements and partnerships, NHTSA supports training for
law enforcement, prosecutors, judges, and other public safety and
criminal justice partners.
For example, NHTSA provides (through a cooperative agreement with
the International Association of Chiefs of Police) funding for
curricula development and management of programs developed to train law
enforcement in detecting, investigating, and apprehending impaired
drivers. NHTSA also provides the law enforcement community with
resources to carry out local DWI programs, such as supplying laminated
pocket guides for the standard field sobriety tests to aid officers.
Through partnerships with national law enforcement organizations such
as the National Criminal Justice Training Center, NHTSA maintains a
wide reach when providing these resources.
NHTSA also helps ensure that organizations representing
prosecutors, judges, and pretrial, parole, supervision, and probation
officers have accurate and up-to-date information about the harm caused
by impaired driving, the crash risk of various impairing substances,
and evidence-based sanction and treatment options. For example, NHTSA
has cooperative agreements with the National Traffic Law Center and the
National Association of Prosecutor Coordinators to develop curricula
and provide training to prosecutors working on impaired driving cases.
Through these agreements, NHTSA provides prosecutors with information
on relevant case law, monographs on various legal issues, an expert
witness database, training courses, and peer-to-peer support from
Traffic Safety Resource Prosecutors (TSRP) in each State. The TSRP
Program trains current and former prosecutors to become instructors for
traffic crimes prosecutors and law enforcement personnel.\128\ This
facilitates a coordinated, multidisciplinary approach to the
prosecution of drunk and impaired driving. NHTSA also funds training
through the National Judicial College on (among other things) evidence-
based sentencing and supervision practices, toxicology, the use of
ignition interlocks, and DWI Courts. NHTSA also funds the American Bar
Association to conduct the Judicial Outreach Liaison program providing
trial judges with current evidence-based practices, peer-to-peer
judicial education, a liaison to the broader highway safety community.
---------------------------------------------------------------------------

\128\ https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/12323_tsrpmanual_092216_v3-tag.pdf.
---------------------------------------------------------------------------

Based on these models, NHTSA is also piloting similar education
programs for pretrial, probation, parole, and supervision professionals
\129\ and toxicologists.
---------------------------------------------------------------------------

\129\ https://www.appa-net.org/idarc/training-faculty.html.
---------------------------------------------------------------------------

2. Prevention
Prevention strategies reduce impaired driving by reducing use of
impairing substances or preventing driving by people who have been
drinking or using other drugs. There are a variety of prevention
countermeasures. Below we discuss the main ones.
a. Alcohol Ignition Interlocks
One impaired driving prevention strategy is requiring the
installation of alcohol ignition interlocks. Ignition interlocks are
devices that measure the driver's BrAC and prevent the vehicle from
starting if it exceeds a pre-set level (usually .02 g/dL). Interlocks
are highly effective in allowing vehicles to be started by sober
drivers, but not by alcohol-impaired drivers. Alcohol ignition
interlocks are typically used as a condition of probation for DWI
offenders after their driver's licenses have been reinstated. Forty-
four States require the devices for repeat, high-BAC, or all
offenders.\130\
---------------------------------------------------------------------------

\130\ https://www.ncsl.org/research/transportation/state-ignition-interlock-laws.aspx.
---------------------------------------------------------------------------

There is evidence that requiring interlocks for driving under the
influence (DUI) offenders helps reduce recidivism. NHTSA evaluated the
New Mexico Ignition Interlock program in 2010 \131\ and found that
alcohol-sensing technology in vehicles can be successfully deployed to
protect the public from alcohol-impaired drivers and that recidivism
rates can be reduced if penetration of these devices is sufficient. In
2015, NHTSA reported on interlock use in 28 States.\132\ This 2015
report identified important program elements for States to achieve and
sustain high interlock use rates including: strong interlock
requirements and incentives coupled with effective penalties for non-
compliance; strong program management involving monitoring, uniformity,
coordination, and education; and data and resources to support program
management and to evaluate changes in program design.
---------------------------------------------------------------------------

\131\ Evaluation of the New Mexico Ignition Interlock Program
(2010). DOT HS 811 410.
\132\ Evaluation of State Ignition Interlock Programs: Interlock
Use Analyses from 28 States, 2006-2011 (2015) DOT HS 812 145.
---------------------------------------------------------------------------

A more recent study found that laws mandating alcohol ignition
interlocks, especially those covering all offenders, are an effective
alcohol-impaired driving countermeasure that reduces the number of
alcohol-impaired drivers in fatal crashes.\133\
---------------------------------------------------------------------------

\133\ Teoh, Eric R./Fell, James C./Scherer, Michael/Wolfe,
Danielle E.R., State alcohol ignition interlock laws and fatal
crashes, Traffic Injury Prevention (TIP), October 2021.
---------------------------------------------------------------------------

NHTSA has also conducted research, developed model specifications,
and provided information and funding to improve State ignition
interlock programs. NHTSA research on ignition interlocks dates back to
early studies on the increased likelihood for DWI offenders to be
involved in fatal crashes while intoxicated.\134\ Based on research
that license suspension alone did not keep DWI offenders from driving,
NHTSA conducted research into performance-based interlocks that could
prevent a drunk driver from starting the vehicle.\135\ NHTSA also
drafted and revised model specifications for interlock devices. These
specifications have developed over time and are published in the
Federal Register as guidelines for State interlock programs.\136\ NHTSA
has published an

[[Page 843]]

ignition interlock toolkit,\137\ a program guide on key features for
ignition interlock programs,\138\ and various case studies and
evaluation reports.\139\ NHTSA continues to fund the Association of
Ignition Interlock Program Administrators.\140\
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\134\ Hedlund, J., & Fell, J. (1995). Persistent drinking
drivers in the U.S., 39th Annual Proceedings of the Association for
the Advancement of Automotive Medicine, October 16-18, 1995,
Chicago, IL (pp. 1-12). Des Plaines, IL: Association for the
Advancement of Automotive Medicine.
\135\ This research also considered impairment including drugs
and drowsiness.
\136\ 78 FR 26849 (May 8, 2013), available at https://www.volpe.dot.gov/sites/volpe.dot.gov/files/docs/Breath%20Alcohol%20Ignition%20Interlock%20Device%20%28BAIID%29%20Model%20Specifications.pdf.
\137\ https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/ignitioninterlocks_811883_112619.pdf. This is a toolkit for
policymakers, highway safety professionals and advocates that brings
together resources that explain and support the use of alcohol
ignition interlocks, identifies issues faced by ignition interlock
programs and includes information on the use of interlocks in each
State and the District of Columbia. It is designed to advance the
understanding of ignition interlock technology, improving its
application as an effective strategy to save lives and prevent
impaired driving injuries.
\138\ https://www.nhtsa.gov/sites/nhtsa.gov/files/811262.pdf.
\139\ See, e.g., https://rosap.ntl.bts.gov/view/dot/1909.
\140\ https://aiipaonline.org/.
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As discussed later in greater detail, since 2008 NHTSA has
participated in and helped fund a cooperative research program, known
as DADSS, which is developing next-generation vehicle alcohol detection
technologies.
b. Designated Driver and Alternative Transportation Programs
NHTSA also supports designated driver and alternative
transportation programs as another avenue for preventing impaired
driving.
Designated driver programs encourage drinkers to include someone in
their party who does not drink and will be able to provide a safe ride
home. Some designated-driver programs provide incentives such as free
soft drinks for designated drivers. Mass-media campaigns--such as the
NHTSA-sponsored Ad Council campaign ``Friends Don't Let Friends Drive
Drunk''--seek to raise awareness and promote the use of these programs.
Alternative transportation programs offer methods people can use to
get to and from places where they drink without having to drive. This
includes public transportation (such as subways and buses) as well as
for-profit and nonprofit ``safe rides.'' For-profit safe rides include
transportation network companies that are on-demand and may be accessed
through a mobile application. Nonprofit safe-ride programs are free to
patrons or charge minimal fees and often operate in specific regions or
at specific times such as weekends and holidays when impaired crashes
occur at higher rates. Several States fund alternative transportation
as part of their impaired driving prevention efforts.
c. Alcohol Sales and Service Regulations/Programs
Another common strategy to prevent impaired driving are regulations
and programs that target the point at which alcoholic beverages are
sold. Responsible beverage service programs cover alcohol sales
policies and practices that prevent or discourage restaurant or bar
patrons from drinking excessively or from driving while impaired by
alcohol. NHTSA supports server training programs to teach servers how
to recognize the signs of intoxication, how to prevent intoxicated
patrons from further drinking and from driving, as well as bar and
restaurant management policies to reduce impaired driving.
d. Underage Impaired Driving Prevention
One particular focus of prevention strategies is preventing
underage impaired driving. Teenagers drink and drive less often than
adults but are more likely to crash when they do drink and drive.\141\
While many of the prevention strategies discussed above apply both to
adults and teenagers, NHTSA supports several prevention strategies
directed specifically to those under the age of 21. NHTSA publishes
fact sheets,\142\ research, and funded program guides \143\ on teen
traffic safety and effective practices to reduce teen impaired driving.
NHTSA also partners with youth advocacy organizations as well as
primary and secondary education organizations to provide youth-focused
impaired driving prevention education, messages, teacher resources, and
educational materials for drivers of all ages. Furthermore, NHTSA
partners with driver educators to teach teen and novice drivers about
the dangers of impaired driving and to develop driver education
standards.
---------------------------------------------------------------------------

\141\ Bingham CR, Shope JT, Parow JE, Raghunathan TE. Crash
types: markers of increased risk of alcohol-involved crashes among
teen drivers. J Stud Alcohol Drugs. 2009 Jul;70(4):528-35. doi:
10.15288/jsad.2009.70.528. PMID: 19515292; PMCID: PMC2696293.
\142\ https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813313.
\143\ See e.g., https://www.ghsa.org/resources/Peer-to-Peer19.
---------------------------------------------------------------------------

3. Communications Campaigns
Public service messaging and coordinated enforcement are also
important behavioral strategies. Communications campaigns inform the
public of the dangers of impaired driving and promote positive social
norms of not driving while impaired. NHTSA coordinates with States and
other traffic safety stakeholders to educate the public about the
impairing effects of alcohol and drugs and the dangers they pose to
drivers of all ages. NHTSA produces a communications calendar annually
with details about specific campaign and enforcement periods, holidays,
and other notable events during which time there may be increased
dissemination of campaign messages and coordinated law enforcement
efforts at the State and local level. Campaign materials are made
accessible to the public and stakeholders online at Traffic Safety
Marketing (TSM).\144\ These communications efforts can be divided into
two categories: high-visibility enforcement and social norming
campaigns.
---------------------------------------------------------------------------

\144\ https://www.trafficsafetymarketing.gov/.
---------------------------------------------------------------------------

a. High-Visibility Enforcement Campaigns
High-visibility enforcement campaigns coordinate highly visible and
proactive law enforcement activities with public service messages
highlighting the dangers of impaired driving and the enhanced
enforcement efforts. NHTSA runs two national high-visibility impaired
driving campaigns each year--one in August, leading up to and including
Labor Day weekend, and one in December, during the winter holiday
period. High-visibility enforcement campaigns include national media
segments that air on TV and radio as well as digital media in English
and Spanish. Both campaigns include national paid media buys
incorporating both an alcohol-impaired driving message (Drive Sober or
Get Pulled Over) and a drug-impaired driving message (If You Feel
Different, You Drive Different. Drive High, Get a DUI). These campaign
assets are available at no cost for States, regions, and other
stakeholders to download and use during applicable campaign periods.
During each campaign timeframe, NHTSA encourages law enforcement and
other State agencies to use the provided assets on social media. State
leaders can also engage with the local news media to expand awareness
of the campaigns and associated messages. Each campaign period comes
with information on how to conduct Media Buys, and its reports on the
number of impressions made.
b. Social-Norming Campaigns
Communications efforts are not limited to high-visibility
enforcement campaigns but also continue throughout the year. For
instance, NHTSA has public service announcement campaigns that rely on
donated time

[[Page 844]]

and space from various media outlets throughout the nation. The main
message for alcohol-impaired driving is ``Buzzed Driving is Drunk
Driving,'' and the main message for drug-impaired driving is ``If you
Feel Different, You Drive Different.'' NHTSA works with the Ad Council
to produce campaign resources (TV, radio, digital, print, and outdoor
advertising) and distributes them to organizations that donate time and
space to support campaign messaging.
4. Alcohol and Drug Treatment, Monitoring, and Control
Treatment for substance use is another major strategy to address
the behaviors leading to drunk and impaired driving. It is widely
recognized that many DWI first offenders and most repeat offenders meet
criteria for an alcohol use disorder and are likely to continue to
drink and drive unless the underlying substance use disorder is
addressed. DWI arrests provide an opportunity to identify offenders
with alcohol use problems, and as part of a plea bargain or diversion
program, refer them to treatment in addition to imposing sanctions.
NHTSA endorses the use of the Substance Abuse and Mental Health
Services Administration's Screening, Brief Intervention and Referral to
Treatment (SBIRT) approach. This is a comprehensive, integrated, public
health approach to the delivery of early intervention and treatment
services for persons with substance use disorders, as well as those who
are at risk of developing these disorders.\145\ To help States use an
SBIRT approach NHTSA funded the American Probation and Parole
Association to develop the Impaired Driving Assessment. This tool
provides a framework for screening impaired drivers, estimating their
risk for future impaired driving, and assessing responsivity to
intervention efforts, among other things.
---------------------------------------------------------------------------

\145\ https://www.samhsa.gov/sbirt.
---------------------------------------------------------------------------

NHTSA also encourages States and jurisdictions to establish DWI
courts. DWI courts are specialized, comprehensive programs providing
treatment, supervision, and accountability for repeat DWI offenders.
These courts follow the well-established drug court model and are
usually aimed at drivers with prior DWI offenses or those with BACs of
.15 g/dL or higher. In 2019, NHTSA entered into a cooperative agreement
with the National Center for DWI Courts to develop the 10 Guiding
Principles for DWI Courts document, provide education and training for
both new and existing DWI Courts, fund technology for the expansion of
reach to underserved populations, and fund services (e.g., treatment)
to high-risk/high-need offenders.\146\ There is evidence that DWI
courts have greater success in changing driver behavior compared to
traditional court processes and sanctions. A 2011 evaluation by NHTSA
of three Georgia DUI Courts found substantial reductions in recidivism
for repeat DUI offenders.\147\
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\146\ https://rosap.ntl.bts.gov/view/dot/2055.
\147\ https://rosap.ntl.bts.gov/view/dot/2055.
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B. Vehicle-Based Countermeasures

While the previous section discussed the various behavioral efforts
that NHTSA has engaged in, NHTSA is conducting complementary research
on vehicle safety technologies that have the potential to prevent or
mitigate drunk and impaired driving. The behavioral campaigns and the
vehicle-based countermeasures are part of NHTSA's dynamic strategy to
achieve zero fatalities related to driver impairment.
1. Summary of Research on Vehicle-Based Countermeasures
This section summarizes five major research efforts focused on
vehicle safety technologies: (1) Driver Alcohol Detection System for
Safety, (2) Driver Monitoring of Inattention and Impairment Using
Vehicle Equipment, (3) NHTSA's Request for Information, (4) Technology
Scans, and (5) Additional ongoing research.
a. Driver Alcohol Detection System for Safety
NHTSA has been conducting research to understand ways to detect
driver impairment. A major research program is DADSS. NHTSA began the
DADSS Program in 2008 through a Cooperative Agreement between the
Agency and the Automotive Coalition for Traffic Safety (ACTS) to
develop non-invasive technology to prevent alcohol-impaired driving by
measuring blood or breath alcohol accurately, precisely, and rapidly.
Exploratory research in early phases of the program established the
feasibility of two sensor approaches for in-vehicle use: breath- and
touch-based. Since then, there have been significant advances in sensor
hardware and software development, as the program works toward meeting
high-performance standards required for passive, accurate, and reliable
alcohol measurement.
There are two technology approaches under development for DADSS,
and both use infrared spectroscopy to measure a driver's alcohol
concentration. The DADSS touch sensor measures the BAC in the capillary
blood in the dermis layer of the skin on the palmar side of a driver's
hand. A touch pad with an optical module could be integrated into an
ignition switch or steering wheel. When the driver touches the steering
wheel or ignition switch, a near infrared light shines into the
driver's skin. The portion of the near infrared light that is reflected
back is collected by the touch pad. This light transmits information
about the skin's chemical properties, including the concentration of
alcohol present. The DADSS breath sensor uses detectors that
simultaneously measure the concentrations of alcohol and carbon dioxide
(CO2) in a driver's exhaled breath.\148\ The diluted breath
is drawn into a measurement cavity where optical detectors measure the
amount of infrared light absorbed by the alcohol and CO2.
Using these measurements, the driver's BrAC is calculated.
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\148\ The concentration of CO2 in the breath provides
an indication of the degree of dilution of the alcohol concentration
indicating the distance from the sensor the breath was exhaled to
determine if the sample is from the driver.
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It is worth emphasizing that the current DADSS breath sensor
requires directed puff of breath toward the sensor and would therefore
not be considered passive under BIL. The end design that the DADSS
program is working toward is a breath sensor that will capture
naturally exhaled breath to make the calculation and may be considered
passive as required by the BIL. The goal is not to require the driver
to actively blow or puff air or take other action to provide the
requisite sample for the system to analyze. The DADSS touch sensor is
being designed to be embedded in something that the driver must touch
to operate the vehicle, for example, push-to-start button, the steering
wheel, or the gear shift selector. Therefore, NHTSA tentatively
determines that such a touch sensor could be considered passive.
As part of the cooperative agreement with NHTSA, ACTS is planning
to develop DADSS Reference Designs for the sensors that include
schematics, specifications, minimum hardware requirements, and other
documentation for the DADSS sensors so the technology can be licensed,
and sensors manufactured. ACTS plans for open licensing of the sensors,
which means the technology will be made available on the same terms to
any automaker or supplier interested in installing the technology into
their vehicles or products. The first DADSS Reference Design--a
directed-breath, zero-tolerance (BrAC >.02 g/dL) accessory

[[Page 845]]

system for limited deployment in fleet vehicles--was released for open
licensing in December 2021. A second DADSS zero-tolerance touch system
reference design intended for fleet vehicles is expected in 2024,
according to ACTS. ACTS expects touch and breath sensor reference
designs for private vehicles, capable of higher BAC measurements, in
2025.\149\ NHTSA is aware that these delivery dates may be affected by
several factors including further research and development and
continued supply-chain issues resulting from the COVID-19 pandemic.
These dates do not include the time necessary for any manufacturer to
consider and implement design changes necessary to integrate these
systems into vehicles.
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\149\ https://dadss.org/news/updates/when-might-the-dadss-technology-be-in-u-s-cars-and-trucks.
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b. Driver Monitoring of Inattention and Impairment Using Vehicle
Equipment
Another research initiative that NHTSA has conducted is a program
with the University of Iowa National Advanced Driving Simulator called
Driver Monitoring of Inattention and Impairment Using Vehicle Equipment
(DrIIVE).\150\ The research program explored driver impairment through
two separate tracks of research: (1) detection, and (2) mitigation. The
main goal of the DrIIVE detection track was to develop and evaluate a
system of vehicle-based algorithms to identify alcohol, drowsiness, and
distraction impairment. Three impairment-detection algorithms, covering
impairment from alcohol intoxication, drowsiness, and distraction,
successfully detected matching impairment type (e.g., drowsiness
algorithm identified drowsy drivers from a dataset of drowsy and non-
drowsy drivers) but had mixed results when applied to cross-impairment
datasets (e.g., drowsiness algorithm identifying drowsiness from a
dataset of drowsy and distracted drivers).
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\150\ Brown, T.L., & Schwarz, C.W., Jasper, J.G., Lee, J.D.,
Marshall, D., Ahmad, O. (in press) ``Driver Monitoring of
Inattention and Impairment Using Vehicle Equipment (DrIIVE) Phase
2.'' National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

The alcohol intoxication algorithm adapted well to the distracted
and drowsy datasets, assuming that there was no alcohol intoxication
present in those datasets (participants in the non-alcohol condition
were neither dosed with alcohol, nor was BAC measured). The distraction
algorithm also worked moderately well when applied to a cross-
impairment dataset, although it worked better with head pose
incorporated as a driver-based sensor signal (e.g., head pose, body
posture), as discussed further below.
It is important to note that the DrIIVE projects have focused on
vehicle-based sensor data; however, they have also incorporated driver-
based sensor signals. Additionally, the researchers investigated the
benefits of taking individual differences between drivers into account
in the training and operation of an algorithm. Driver-based sensors
provided an added benefit to the performance and generalization of the
distraction-detection algorithm, while individualizing the algorithms
for individuals provided an added benefit to a drowsiness algorithm and
an alcohol-intoxication algorithm. NHTSA recognizes that there are
substantive challenges in individualizing algorithms across the entire
driving population.
Overall, the algorithms showed good success rates at correctly
identifying driver impairment (and the correct source). However, the
results of these studies also showed an interesting finding in which,
in rare instances, drowsy drivers were categorized as alcohol impaired
(despite not being dosed with alcohol). NHTSA has plans to initiate
follow on research to refine the algorithm with the aim of determining
if alcohol impairment detection can be achieved with a higher degree of
accuracy. NHTSA recognizes the importance of accuracy of alcohol-
impaired driver detection so that non-impaired drivers are not
inconvenienced.
The DrIIVE mitigation research demonstrated the potential short-
term effectiveness of both haptic and auditory staged alerts (i.e., the
ability to improve driving performance for a period of time after the
drowsiness alert is provided). Results show that drowsy drivers who
received mitigation alerts maintained better vehicle control and had
fewer drowsy lane departures than drowsy drivers without this
mitigation. Additionally, drowsy drivers with mitigation showed less
variability in speed maintenance. Furthermore, the research suggested
that staged alerts may be more effective than discrete alerts for very
drowsy drivers. Finally, alert modality did not affect driving
performance, nor did the alerts significantly lower self-reported
drowsiness. NHTSA has ongoing warning mitigation research for
intoxication.
c. NHTSA's November 12, 2020 Request for Information
NHTSA also sought input from the public on impaired driving
technologies through its November 12, 2020, NHTSA Request for
Information (RFI).\151\ The notice requested information to inform
NHTSA about the capabilities, limitations, and maturity of available
technologies or those under advanced stages of development that target
impaired driving. Specifically, it requested details about technologies
that can detect degrees of driver impairment through a range of
approaches including: (1) technologies that can monitor driver action,
activity, behavior, or responses, such as vehicle movements during lane
keeping, erratic control, or sudden maneuvers; (2) technologies that
can directly monitor driver impairment (e.g., breath, touch-based
detection through skin); (3) technologies that can monitor a driver's
physical characteristics, such as eye tracking or other measures of
impairment; and (4) technologies or sensors that aim to achieve direct
measurement of a driver's physiological indicators that are already
linked to forms of impaired driving (e.g., BAC level for alcohol-
impaired driving). NHTSA received 12 responses to the request for
information. The following provides a high-level summary of those
responses.
---------------------------------------------------------------------------

\151\ 85 FR 71987, available at https://www.regulations.gov/docket/NHTSA-2020-0102.
---------------------------------------------------------------------------

The Alliance for Automotive Innovation (Auto Innovators) noted that
Driver State Monitoring and Driver Behavior Systems are promising
technologies that, with continued development, have the potential to
significantly reduce distracted and drowsy driving. The Auto Innovators
also stated that they are ``. . . unaware of existing research
demonstrating the robust effectiveness of these systems in detecting
alcohol impairment. . . .'' The Auto Innovators further stated that
``Driver State Monitoring/Driver Behavior Systems' ability to identify
high-functioning individuals impaired by alcohol is unknown, but likely
poor. Additional research is needed to understand the opportunities and
limitations of these systems relative to individual alcohol impairment.
Pre-operation systems, including DADSS, are not so limited because they
are designed to quantify a driver's BAC.''
Three automotive suppliers \152\ of camera-based DMSs and occupant
monitoring systems responded to the November 12, 2020, Request for

[[Page 846]]

Information. Veoneer, a worldwide supplier of automotive technology,
reported that it launched its first camera-based DMS to the market in
2020. Its technology uses a true eye gaze system that determines the
directional attributes of where the eyes are focused. Seeing Machines
Limited, a DMS supplier, described their technology as providing
evidence for the ability to reliably detect both drowsiness and visual
distraction. Sony Depthsensing Solutions, an in-cabin occupant
monitoring systems provider, described their ability to recognize
driver features such as eye open/close and body position. The
information they gain through sensors is used ``to extract higher level
features such as drowsiness, microsleep, sleep, distraction (long and
short) detection, emotion estimation or sudden sickness detection.''
Veoneer and Seeing Machines both noted that detecting driver alcohol
impairment is more challenging and requires more technology development
and research. Sony Depthsensing Solutions did not comment on the
ability to detect other forms of impairment (e.g., alcohol). Eyegaze
Inc., an eye tracking technology supplier, suggested their product,
with additional work, could provide a solution to monitor driver
attention when housed in an automobile.
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\152\ While not a passive device, a fourth supplier, Evanostics,
provided information on a table-top oral fluid testing device that
it suggests can test for alcohol and 10 classes of drugs in 15
minutes. A second supplier, Impirica, provided information on a
mobile (tablet and phone) based cognitive screening that is designed
to evaluate real time driving impairment.
---------------------------------------------------------------------------

Safety advocates generally provided support for vehicle safety
technologies. The National Safety Council, a safety advocate group,
stated their support for in-vehicle passive alcohol detection
technology options and DMSs. The Advocates for Highway and Auto Safety,
a roadway safety advocacy group, noted their support for vehicle safety
technologies, including voicing support for crash avoidance
technologies, expedited DADSS research and offender ignition
interlocks, among other things. Mothers Against Drunk Driving (MADD)
submitted two separate comment submissions to the docket, which
included 241 examples of technology related to detection of alcohol in
blood or breath, other indicators of alcohol intoxication, drug
impairment, drowsiness, and driver distraction/inattention. Finally, a
submission by the American National Standards Institute, Inc, provided
research references on eye tracking as an indicator of impairment.
d. Technology Scans
In addition to the aforementioned RFI, NHTSA contracted with two
different groups to independently review the state of publicly
available information related to impairment detection. The first is an
update to the ``Review of Technology to Prevent Alcohol- and Drug-
Impaired Crashes (TOPIC)'' report.\153\ This report updates the 2007
evaluation of vehicular technology alternatives to detect driver BAC
and alcohol-impaired driving. It includes additional findings related
to the detection of impaired driving due to drugs other than alcohol,
drowsiness, and distraction. This report reviews relevant literature
and technologies and incorporates input from stakeholders and the
public (i.e., information received from the RFI). The report finds that
tissue spectroscopy technologies are more accurate in estimating BAC
than other technologies available at this time. Although driver
attention monitoring technologies are presently able to detect drowsy
driving and distracted driving, none specifically able to detect
alcohol- or drug-impaired driving were found to be commercially
available.
---------------------------------------------------------------------------

\153\ Pollard, J.K., Nadler, E.D., & Melnik, G.A. (In Press).
Review of Technology to Prevent Alcohol- and Drug-Impaired Crashes
(TOPIC): Update. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

The second technology scan is ``Assessment of Driver Monitoring
Systems for Alcohol Impairment Detection and Level 2 Automation.'' The
report presents a review of DMS for alcohol impairment detection. A
total of 331 systems were reviewed, more than 280 of which met
inclusion criteria and are included in the report. The study found that
few technologies are commercially available for alcohol impairment
detection; some were not designed for in-vehicle use, and others were
identified based on patent applications rather than evidence of
functional systems. The review focused on features that were explicitly
mentioned or indicated on the manufacturers' websites, patents, device
manuals, publications, or reports. The review, which was completed in
October 2022, noted that camera-based DMS have been in vehicles since
2018 for monitoring driver inattention to the forward roadway for SAE
Level 2 driving automation systems,\154\ as well as other vehicle-based
sensors such as lane position monitoring and steering wheel torque
monitoring to measure driver engagement and performance.
---------------------------------------------------------------------------

\154\ SAE International, Standard J3016, ``Taxonomy and
Definitions for Terms Related to On-Road Motor Vehicle Automated
Driving Systems,'' April 2021.
---------------------------------------------------------------------------

The DMS were reviewed with a focus on the applicability of each
system to driver alcohol impairment detection. The systems were
classified as physiology-based, tissue spectroscopy-based, camera-
based, vehicle kinematics-based, hybrid (i.e., two or more of the
classification types), and patent-stage systems. A key focus was to
review systems that are being developed with the potential to detect
alcohol-based driving impairment, as well as systems that can precisely
estimate BAC.
Of the systems reviewed, no commercially available product was
found to estimate the amount of alcohol or identify alcohol-based
impairment in the driver during the driving task. Behavioral indicators
investigated included eye glances, facial features, posture, and
vehicle kinematic metrics. However, systems with these capabilities are
currently at various stages of the research and development process.
Based on industry stakeholder interviews and expert review of
technology documentation, the researchers found that approaches that
are furthest along in the development process are those which measure
the presence and amount of alcohol in a person's body using BrAC and
tissue spectroscopy. Camera-based and most physiology-based DMS are
still in stages of preliminary research and design for alcohol-based
impairment detection in passenger vehicles. The efficacy of vehicle
kinematic measures in identifying alcohol-based impairment is currently
unknown. Finally, hybrid systems are promising in being able to discern
between driver states due to the number of different measures used in
making state determinations.
e. NHTSA's Driver Monitoring Research Plans
In addition to state-of-the-art assessments on DMSs, NHTSA has
conducted research on driver state monitoring used in conjunction with
SAE Level 2 driving automation.\155\ While using Level 2 driving
automation, drivers are expected to both monitor the environment and
supervise vehicle automation which is simultaneously providing lateral
and longitudinal support to the driver. Some systems do not require the
driver to have their hands on the wheel, while others include advanced
features like automated lane changes and point-to-point navigation. The
research included a literature review, stakeholder interviews, and
system assessments. Many, but not all, Level 2 driving automation
systems monitor visual and physical driver indicators, using camera-
based sensing systems. Useful

[[Page 847]]

measures of general driver visual attention include measures of eye/
pupil movement (e.g., fixation duration), measures of glance location
(e.g., eyes on/off road), and measures of glance spread and range
(e.g., scan path).
---------------------------------------------------------------------------

\155\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

While NHTSA's research on DMS for Level 2 driving automation
systems has implications for DMS applied to detection of alcohol
impairment with regard to technological feasibility, there are
important differences between these two applications. The safety
issues, indicators and measures of driver risk, consumer acceptance,
and potential interventions may be different for Level 2 driving
automation than they are for alcohol impairment. For example, drivers
who are impaired by alcohol may appear to be visually attentive as
measured by eye gaze toward the forward roadway, so alternative
measures will be important to achieve reliable detection of impairment.
Additionally, while alerts may prompt inattentive drivers to return
their attention to the road, alerts alone cannot remedy driver
impairment from alcohol. Additionally, the use of Level 1 and higher
driving automation itself may pose challenges for the detection of
alcohol impairment. This is because some of the driving performance
measures that may be indicative of alcohol impairment (e.g.,
instability of lane position and speed) cannot be used when the vehicle
itself is controlling that portion of the dynamic driving task. NHTSA
is currently conducting research examining distraction that does not
specifically focus on drunk driving or metrics but might be helpful to
consider if the agency pursues an approach that requires camera-based
driver monitoring to detect drunk driving.
2. Passive Detection Methods and Available Technologies
The ``advanced drunk and impaired driving prevention technology''
under BIL prescribes three methods of passive detection--(1) passively
monitor the performance of a driver of a motor vehicle to accurately
identify whether that driver may be impaired; (2) passively and
accurately detect whether the blood alcohol concentration of a driver
of a motor vehicle is equal to or greater than the blood alcohol
concentration described in section 163(a) of title 23, United States
Code; \156\ or (3) a combination of the first and second options.
---------------------------------------------------------------------------

\156\ 23 U.S.C. 163(a) states ``The Secretary shall make a
grant, in accordance with this section, to any State that has
enacted and is enforcing a law that provides that any person with a
blood alcohol concentration of 0.08 percent or greater . . .''.
---------------------------------------------------------------------------

NHTSA interprets the first option as passively monitoring the
driver's performance (e.g., eyes on the forward roadway; taking
appropriate steering, braking, or accelerating action) to gain an
accurate determination of whether the driver may be impaired. Since
``driver impairment'' could include more than just alcohol-impairment,
the collective states of driver impairment would constitute the largest
real-world safety problem. NHTSA interprets the second option to
require passive and accurate detection of BAC over a prescribed limit
(which is currently .08 g/dL). This would exclusively target a subset
of driver impairment conditions (i.e., alcohol-impaired drivers)
focused on BAC detection. Alcohol-impaired drivers constitute the
largest fatal driver impairment type. The third option is a combination
of both the first and second. The following subsections discuss each of
these options.
a. Passively Monitor the Performance of a Driver To Accurately Identify
Whether That Driver May Be Impaired
For the purposes of this section, the following driver impairments
were considered: drowsiness, distraction, and drunk, in the order of
increasing fatality counts in the United States. While drugged driving
is another known driver impairment, the ability to explicitly detect
drug-impaired drivers is currently limited. Some of the effects of
drugged driving, however, may be similar to the effects of alcohol-
impaired or distracted driving, and therefore it is possible that
vehicle technologies designed to detect other forms of impairment may
also have the ability to detect some drug-induced impairments as well.
As stated in the introduction, NHTSA is considering prioritizing
alcohol impairment due to the significant safety problem caused by
drivers intoxicated by alcohol and requests comment on whether that
scope is most appropriate and whether its focus should be expanded to
other types of impairment, including those discussed in this section.
Driver performance generally consists of being attentive to the
driving task, and taking appropriate vehicle control actions (i.e.,
steering, accelerating, and braking). Modern vehicles are equipped with
many crash avoidance and driver assistance sensors that may provide
opportunity to contribute to the detection of driver impairment. The
following provides examples of those sensing technologies.
Camera-Based Driver Monitoring Sensors: Camera-based DMSs are
becoming more prevalent in vehicles with Level 2 driving automation
features (i.e., adaptive cruise control and lane centering).\157\ NHTSA
reviewed several available and prototype camera-based driving
monitoring systems that publicly state the ability to monitor aspects
of driver state, including driver's eye gaze, eyelid/eye closure, pupil
size, head/neck position, posture, hand/foot position, and facial
emotion during the driving task.\158\ The review found that most
systems are currently available and intended for use in detecting
driver drowsiness, inattention, and sudden sickness/non-responsive
drivers and few are for specifically detecting alcohol-impairment.
Although measures such as eye closure over time, pupil diameter,
saccades (an eye movement between fixations), and fixations are
parameters under study for detecting alcohol impairment, the review
found that there was a lack of clinical and psychophysiological
research to aid in specifically detecting driver alcohol impairment.
The review found only three systems that claimed alcohol-based
impairment detection as the objective, but the systems with these
capabilities are not available on the market.
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\157\ The Path to Safe Hands-Free Driving [bond] GM Stories;
Ford BlueCruise [bond] Consumer Reports Top-Rated Active Driving
Assistance System [bond] Ford.com; Nissan ProPILOT Assist Technology
[bond] Nissan USA; Teammate Advanced Drive Backgrounder--Lexus USA
Newsroom.
\158\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

It is notable, however, that other past NHTSA research suggested
that the driver states of drowsiness and alcohol-impairment can present
similarly to a driver monitoring system.\159\ So there may be an
opportunity ``to detect'' some alcohol-impaired drivers that present as
drowsy. However, as discussed further below, the countermeasure for
``prevention'' applied to a sober drowsy driver, as opposed to an
alcohol-impaired driver, may not be the same. For example, NHTSA
contemplates and seeks comment on whether a sober drowsy driver may
respond favorably to a warning and may even take a break from driving
to recover, whereas an alcohol-impaired driver may not respond to a
warning at all, or worse,

[[Page 848]]

respond in a negative way (e.g., becoming a more risky driver).
---------------------------------------------------------------------------

\159\ Brown, T.L., & Schwarz, C.W, Jasper, J.G., Lee, J.D.,
Marshall, D., Ahmad, O. (in press) ``Driver Monitoring of
Inattention and Impairment Using Vehicle Equipment (DrIIVE) Phase
2.'' National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

Hands-On-Wheel Sensors: Drivers with their hands off the steering
wheel for an extended period of time can be an indicator of driver
inattention. Vehicles equipped with Level 2 features often have
capacitive or steering torque sensors to confirm that the driver has at
least one hand on the steering wheel. Capacitive sensing detects the
change in capacitance of the steering wheel that results from the
driver's hands being removed from the wheel. Steering wheel torque
sensing detects small steering inputs made by the driver. These sensors
are commonly used in algorithms to encourage drivers to remain
attentive during driving.\160\ It should be noted, however, that some
Level 2 feature designs permit hands-off-wheel while supervising the
vehicle automation. Current production vehicles with Level 2 features
that permit drivers to remove their hands from the wheel have camera-
based DMS that alert drivers if they look away from the forward roadway
for more than a few seconds.
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\160\ Driver Monitoring [bond] Alliance For Automotive
Innovation (autosinnovate.org).
---------------------------------------------------------------------------

Lane Departure and Steering Sensors: Poor precision as indicated by
unintended lane excursions may indicate unsuitable driver states,
including alcohol-based impairment.\161\ Alcohol reduces driving
precision, and lane positioning is a key skill that is affected, even
at low doses. Deviation of lane position from the lane center increases
with increasing doses of alcohol.\162\ The Standard Deviation of Lane
Position (SDLP) is considered a sensitive (but not specific) measure of
alcohol impairment.\163\ Relatedly, measures of steering inputs can be
used to detect alcohol impairment.\164\ Specifically, drivers who are
impaired due to alcohol may exhibit more erratic driving patterns with
tendencies to deviate from their lane position.\165\
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\161\ https://www.nhtsa.gov/sites/nhtsa.gov/files/808677.pdf.
\162\ Harrison, E.L., & Fillmore, M.T. (2005). Are bad drivers
more impaired by alcohol? Sober driving precision predicts
impairment from alcohol in a simulated driving task. Accident
Analysis & Prevention, 37(5):882-9. doi: 10.1016/j.aap.2005.04.005;
Lee JD, Fiorentino D, Reyes ML, Brown TL, Ahmad O, Fell J, Ward N,
Dufour R. (2010). Assessing the Feasibility of Vehicle-Based Sensors
to Detect Alcohol Impairment. National Highway Traffic Safety
Administration. Report No. DOT HS 811-358; Calhoun, V.D. & Pearlson,
G.D. (2012). A selective review of simulated driving studies:
Combining naturalistic and hybrid paradigms, analysis approaches,
and future directions. NeuroImage, 59(1), 22-35; Irwin C, Iudakhina
E, Desbrow B, McCartney D. (2017). Effects of acute alcohol
consumption on measures of simulated driving: A systematic review
and meta-analysis. Accident Analysis & Prevention, (102),248-266.
doi: 10.1016/j.aap.2017.03.001. Epub 2017 Mar 24. PMID: 28343124.
\163\ Irwin C, Iudakhina E, Desbrow B, McCartney D. (2017).
Effects of acute alcohol consumption on measures of simulated
driving: A systematic review and meta-analysis. Accident Analysis &
Prevention, (102)248-266. doi: 10.1016/j.aap.2017.03.001. Epub 2017
Mar 24. PMID: 28343124.
\164\ Das D., Zhou S., Lee J. D. (2012). Differentiating
alcohol-induced driving behavior using steering wheel signals. IEEE
Trans. Intel. Transp. Syst. 13 1355-1368. 10.1109/TITS.2012.2188891.
\165\ Kersloot, Tanita & Flint, Andrew & Parkes, Andrew. (2003).
Steering Entropy as a Measure of Impairment.
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The following crash avoidance sensor technologies equipped on
modern vehicles could aid in detecting lane departure: forward-looking
external cameras; steering wheel torque sensors; and blind spot
detection sensors.
When driven manually, forward-looking external cameras commonly
used in lane departure warning systems have the potential to identify a
vehicle drifting out of its travel lane, typically when lane markings
are present and observable (i.e., not snow-covered or worn). This could
include drifting off the roadway or drifting into oncoming traffic.
Tracking a vehicle's lane departure warning activations over time could
present as an indicator of a driver directing the vehicle to weave in
and out of its travel lane (weaving and weaving across lanes are cues
used by officers in detection of impaired driving).\166\ NHTSA's
research suggests that many vehicle manufacturers use lane position
monitoring for detecting unintentional lane drift from several driver
impairments--drowsiness and inattention.\167\ Some vehicle
manufacturers were found to use lane position monitoring in available
features, such as oncoming lane mitigation and run-off road
mitigation.\168\
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\166\ https://www.nhtsa.gov/sites/nhtsa.gov/files/808677.pdf
\167\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
\168\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

Some vehicles are equipped with steering wheel torque sensors that
monitor a driver's steering inputs. Such sensors could detect and
monitor erratic steering corrections over time during the course of a
trip. NHTSA's research suggests that some vehicle manufacturers use
steering input monitoring for detecting inattention, drowsiness, or
sudden sickness/non-responsive driver for vehicles equipped with Level
2 systems (used in an active emergency stop assist application).\169\
---------------------------------------------------------------------------

\169\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
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Many modern vehicles also come with blind spot warning sensors on
the sides of the vehicle that can identify a vehicle in an adjacent
lane.\170\ If an impaired driver attempts to steer into an adjacent
lane of travel when another vehicle is in its blind spot, a vehicle
equipped with this technology can warn the driver, or in some vehicles,
even intervene via active blind spot intervention technology.
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\170\ https://www.nhtsa.gov/equipment/driver-assistance-technologies.
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Speed/Braking Sensors: Speed maintenance is generally affected by
high BAC levels. NHTSA's research has found that driver alcohol doses
greater than BAC .05 g/dL can significantly impair an individual's
ability to maintain appropriate speed, particularly in complex
environments.\171\ While some studies report increased speeds by
alcohol-impaired drivers, others report speed decreases.\172\ The
reduced ability to maintain consistent speed is referred to as the
Standard Deviation of Speed Deviation (SDPD), which is commonly used to
measure relative performance of impaired drivers compared to control
groups. While findings concerning speed directionality (i.e., increase
or decrease) are mixed, studies have consistently shown that speed
deviation from posted speed limits tends to increase in alcohol-
impaired driver groups.\173\
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\171\ Veldstra et al., 2012; Mets et al., 2011.
\172\ Rezaee-Zavareh et al., 2017; Lee et al., 2010; West et
al., 1993; Irwin et al., 2017; Lenne et al., 2010.
\173\ Arnedt et al., 2001; Yadav & Velaga, 2020; Irwin et al.,
2017.
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That said, some forward-looking external cameras can detect and
interpret posted speed limit signs, which could provide an indicator of
speeding when compared to the actual speed the vehicle is traveling.
Some vehicles have telematics and maps that provide posted speed limit
information. Vehicles also have brake sensors that could be monitored
over time to sense repeated incidences of hard braking during a trip.
Time-Based Sensors: Two other vehicle sensors that could be used in
an overall driver impairment algorithm include duration of trip, and
time of day. Monitoring the trip duration is used in some vehicle
algorithms to warn about drowsy driving.\174\ After a certain

[[Page 849]]

length of time, a vehicle may provide an icon (e.g., a coffee cup-like
symbol) on the instrument panel to suggest a driver take a break from
the driving task. Monitoring the trip duration may also help in
identifying repeated lane departures over time. Monitoring the time of
day could be added to other detection methods to help confirm detection
of drowsiness or alcohol-impairment states at late night times. Most
alcohol-impaired driving fatalities in the United States occur between
6 p.m. and 3 a.m.\175\
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\174\ Driver Attention Warning [bond] Hyundai.
\175\ Traffic Safety Facts 2020: A Compilation of Motor Vehicle
Crash Data (dot.gov) Table 31.
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Physiological Sensors: There are also a variety of physiological-
based systems under research that use biometric measures from the
driver to infer driver state. These could include heart rate, sweat,
and blood pressure, among others. NHTSA's research found that many were
in the research and development stage, including those for breath
alcohol detection (which will be discussed in the next section).\176\ A
practical limitation of their use may be the fact that detecting driver
impairment may be reliant upon background knowledge of a specific
driver's baseline physiological characteristics (to sense elevated
levels) and can be attributable to multiple physiological states (e.g.,
stress).
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\176\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

In summary, NHTSA's research suggests that many driver impairment
detection strategies use different combinations of measures, but the
available documentation of multi-detection approaches is rare, and when
present, details of the underlying algorithms are sparse.\177\ It is
reasonable to assume that the combination of more sensors and driver
metrics will improve the confidence in driver state inference. Little
data is available, however, to inform NHTSA on which combination of
sensors and indicators of driver state, if any, would achieve greater
accuracy and reliability of impairment detection.
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\177\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

Vehicle manufacturers have announced concept vehicles or production
plans for active/passive technologies to mitigate alcohol-impaired
driving for many years. For example, a media article \178\ cited
alcohol-impaired driver research by General Motors dating back to the
1970s on a critical tracking test (CTT) ``experimental deterrent'' that
used the result from a 10-second test the driver took each time he or
she got behind the wheel to determine whether the car would start.
Tests were reported to use driver steering wheel movement and a gauge
on the instrument panel where the driver would have to keep the needle
on the gauge in the acceptable range through a series of progressive
needle movements. Another concept involved cognitive tests where a
series of five numbers appeared above five numbered white buttons on
the instrument panel (or on a keypad). To pass the test, the driver
must replicate the number sequence by using buttons and complete it in
a designated timeframe.
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\178\ A GM onboard experimental alcohol and drug impairment
detection device of the 1970s [bond] Hemmings
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More recently, a 2016 patent held by General Motors, ``Method and
System for Mitigating the Effects of an Impaired Driver,'' aims to
detect inattention and alcohol-based impairment through use of camera-
based detection measures (i.e., eye gaze, eyelid/eye closure, and
facial/emotional measures), as well as lane monitoring and steering
input.\179\
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\179\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

Similarly, in 2007, Toyota announced its intent to create a fail-
safe system for cars that detects drunk drivers and automatically shuts
the vehicle down if sensors pick up signs of excessive alcohol
consumption. According to a media report,\180\ cars fitted with the
detection system will not start if sweat sensors in the driving wheel
detect high levels of alcohol. The system could also detect abnormal
steering, or if a special camera shows that the driver's pupils are not
in focus, the car would be slowed to a halt. Toyota had reportedly
hoped to fit cars with the system by the end of 2009. NHTSA does not
know the current status of this Toyota technology and seeks comment on
its effectiveness and availability.
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\180\ Toyota creating alcohol detection system (nbcnews.com).
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During the same timeframe, Nissan also reportedly developed a
concept car with technology to detect alcohol in the breath and sweat
of the driver.\181\ Nissan's concept car had an alcohol sensor in the
transmission shift knob, and in the driver's and passenger's seats.
Both reportedly worked together to detect traces of alcohol in the
cabin past a certain threshold. If the driver's seat or shift knob had
detected any alcohol while still parked, the transmission locked and
made the car immobile. A second feature was a facial monitoring system
built to monitor signs of drowsiness or distraction by monitoring the
driver blinking rate. Once detected, a voice message alert was issued,
and the seat belt was tightened to gain the attention of the driver. A
third concept that was further developed after the 2007 timeframe was a
road monitoring system. Nissan put technology in vehicles that
monitored lanes and alerted drivers when the vehicle drifted out of the
current lane, which Nissan reportedly believed mitigated safety risks
associated with distracted driving.
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\181\ Nissan Is Ahead of Its Time in Developing Anti-Drunk
Driving Technology Over a Decade Before Potential Federal Mandate
[bond] GetJerry.com.
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Hyundai Mobis, a global Tier 1 \182\ supplier, has been researching
a technology called DDREM--Departed Driver Rescue and Exit Maneuver.
Initially announced at the Consumer Electronics Show in 2018,\183\
DDREM uses an infrared camera to capture driver facial and eye
movements to determine if the driver keeps eyes forward, changes
blinking patterns, or exhibits other signs of drowsiness. The
technology also looks for key identifiers used in advanced driver
assistance systems (e.g., if the driver is moving in and out of a lane,
crossing lanes, zig zagging, or making erratic movements).
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\182\ Tier 1 suppliers are companies that are direct suppliers
to Original Equipment Manufacturers (OEM).
\183\ https://www.businesswire.com/news/home/20180103005023/en/2018-CES-Hyundai-Mobis-Announces-Lifesaving-Autonomous-Vehicle-Technology-to-Potentially-Eliminate-Drowsy-Driving-Fatalities, last
accessed July 7, 2023.
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On March 20, 2019, Volvo Cars announced plans to deploy in-car
cameras and intervention against intoxication and distraction.\184\ Its
press release stated, ``Volvo Cars believes intoxication and
distraction should be addressed by installing in-car cameras and other
sensors that monitor the driver and allow the car to intervene if a
clearly intoxicated or distracted driver does not respond to warning
signals and is risking an accident involving serious injury or death.''
The press release provided examples of behaviors to be detected: a
complete lack of steering input for extended periods of time, drivers
who are detected to have their eyes closed or off the road for extended

[[Page 850]]

periods of time, as well as extreme weaving across lanes or excessively
slow reaction times. It further stated introduction of the cameras on
all Volvo models will start on the next generation of Volvo's scalable
SPA2 vehicle platform in the early 2020s.
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\184\ https://www.media.volvocars.com/global/en-gb/media/pressreleases/250015/volvo-cars-to-deploy-in-car-cameras-and-intervention-against-intoxic.
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Most recently, Volvo introduced the model year 2024 Volvo EX 90
that has a ``Driver Understanding System,'' which uses two interior
sensors and a capacitive steering wheel along with the vehicle's
exterior sensors to understand if a driver is distracted or drowsy and
when the vehicle may need to step in and support.\185\
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\185\ 2024 Volvo EX90 Full Electric 7 Seater SUV [bond] Volvo
Car USA (volvocars.com) According to its website, the vehicle's
``Pilot Assistance'' feature ``can help keep an eye on the traffic
and lane markings and support you by adapting your speed and
distances given the current driving conditions. It can provide speed
control in steep curves and steering support while changing lanes.
If the car detects any sign of the driver being unresponsive, it can
brake the vehicle to a standstill within the lane.''
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Given the advancements in driver impairment detection (i.e., due to
use in combination with SAE Level 2 driving automation technology), it
is expected that other approaches will improve over time as strategies
for mitigating inattention, incapacitation, drowsiness, and alcohol-
impairment detection evolve--both from a technology perspective and a
consumer acceptance stance. For example, Consumer Reports published an
article suggesting that early versions of these driver impairment
technologies are already appearing on cars in other countries.\186\
NHTSA seeks comment on the current state of technology and its
effectiveness in passively detecting driver impairment.
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\186\ https://www.consumerreports.org/car-safety/driver-monitoring-can-pull-car-over-if-driver-incapacitated-a1204997865/
``Some Volkswagen Arteon sedans sold in Europe and equipped with the
Emergency Assist 2.0 feature will turn on their flashers and pull
over to the side of the road if a driver becomes unresponsive.
According to the automaker, if the car senses that a driver is not
using the accelerator, brake, or steering wheel, it will first try
to awaken a driver by sounding alarms and tapping the brakes to
``jolt'' the driver into awareness. If the driver still doesn't
respond, it will automatically steer itself to the lane furthest
from traffic on a multilane road and bring the vehicle to a stop. In
Japan, Mazda has said it will debut its Co-Pilot system on new
vehicles this year. Tamara Mlynarczyk, a Mazda spokesperson, tells
CR that the system is ``continuously monitoring'' the driver's
performance. ``In a potential emergency situation where the driver
loses consciousness, the system is prepared to intervene and assist
the driver or pull the car over to a safer location,'' she says. On
a multilane road, it may be able to pull the vehicle to the road's
shoulder.''
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Questions on Technologies That Passively Monitor the Performance of a
Driver To Accurately Detect Whether That Driver May Be Impaired
1.1. NHTSA requests feedback on the two technology scan findings.
Are there technologies, or technology capabilities or limitations not
captured in these reports? If so, what are they?
1.2. NHTSA is concerned that behaviors consistent with drunk
driving, like repeated potential lane departure and erratic speeding/
braking, would be masked by an engaged SAE Level 2 driving automation
systems. Would there be enough information from other sensors (e.g.,
camera-based DMS, hands-on-wheel detection) to detect driver impairment
and driver impairment type when SAE Level 1 or 2 driving automation
systems are active? \187\
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\187\ 2020 Data: Alcohol-Impaired Driving (dot.gov).
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1.3. NHTSA is concerned about the limitations of vehicle sensor-
based impairment detection systems to operate fully when certain
sensors are impeded. External circumstances may include common roadway
conditions such as darkness, heavy weather, roads with poor markings,
or unpaved roads. Circumstances within the vehicle may include driver
accessories, such as infrared light-blocking sunglasses, masks, or hats
that may obscure the view of the driver to a DMS camera. If one or more
sensors are impeded by such conditions, is there enough information
from other sensors to detect driver impairment? Does this vary by
impairment type? What are the operational limitations of such systems?
1.4. NHTSA is seeking input on how a test procedure for driver
impairment detection systems could be developed and executed in a
FMVSS. For example, does the test need to be conducted in a moving
vehicle to capture lane drift or weaving? If so, what are potential
testing approaches or procedures? Are humans required for camera-based
DMS assessment? Are there particular accessories (e.g., sunglass types,
facial coverings) that would be required for testing? Is it feasible to
conduct testing in darkness? What type of accuracy could be attained?
How might this vary based on intended impairment type detection?
1.5. What kind of performance requirement should NHTSA consider to
mitigate defeat strategies (e.g., taping over the camera-based DMS or
removing/replacing rear-view mirrors that contain driver monitoring
equipment)?
1.6. What metrics and thresholds (e.g., eye gaze, lane departure
violations, speed, blind spot warning triggers, lane position
variability, speed variability), or combination thereof, are most
effective at measuring driver impairment? These would include time-
based parameters from the start of the ignition cycle and those used
for continuous monitoring. How feasible is it to implement these
metrics in passenger vehicles? Should these vary by impairment type?
Might these measures conflict across impairment types? Should NHTSA
require impairment detection systems be able to collect specific
metrics? Why or why not?
1.7. NHTSA seeks comment on whether it should be necessary for an
impairment detection system to determine what kind of impairment a
driver has (e.g., drowsy, distracted, drunk) if the driver triggers
certain metrics that indicate the driver is impaired by at least one of
those impairments? For example, incapacitation, drowsiness, and
distraction could be captured by camera-based monitoring systems, but
they may also detect some alcohol-impaired drivers.
1.8. Are there characteristics that would separate sober
impairments from alcohol-induced impairments (e.g., horizontal gaze
nystagmus or myokymia)? If so, what are they? Are there other non-
alcohol induced conditions in which some of these characteristics might
appear? If so, please provide examples.
1.9. NHTSA seeks comment about whether certain conditions listed in
the previous question (e.g., myokymia) might result in false positives
\188\ in certain situations (e.g., stress) or with certain populations
(e.g., older drivers).
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\188\ A false positive could occur when the system indicates a
person is at the detection level for impairment, when they are not
impaired.
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1.10. What precision and accuracy should driver monitoring
technology be required to meet for the purposes of detecting alcohol
impairment? Under what conditions should these technologies be
demonstrated to work? Are there driver characteristics, environmental
conditions, or other factors that might limit the usefulness or
applicability of certain technologies under certain conditions? Should
there be a maximum time allowed for a system to develop a determination
of impairment, after the indicators of impairment are detected?
1.11. Under what conditions should a vehicle allow a driver to turn
off driver impairment monitoring, if at all? If

[[Page 851]]

allowed, should a system be reset to ``on'' upon the next ignition
cycle?
1.12. NHTSA is interested in data, studies, or information
pertaining to the effectiveness of various sensors or algorithms in
correctly detecting driver impairment (collectively, and individual
impairments). NHTSA is seeking comment on which metrics, thresholds,
sensors, and algorithms employed by existing DMS technology that could
be used in an alcohol impairment detection system could be sufficiently
robust to meet the requirement that an FMVSS be objective.
1.13. Are there other innovative technologies, such as impaired-
voice recognition,\189\ that could be used to detect driver impairment
at start-up? If so, how might these function passively without
inconveniencing unimpaired drivers? How mature and accurate are these
technologies?
---------------------------------------------------------------------------

\189\ https://neurosciencenews.com/ai-alcohol-voice-22191/.
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1.14. What level of sensitivity and specificity is necessary to
ensure the DMS technology does not unduly burden unimpaired drivers or
prevent unimpaired drivers from driving? Are there any DMS available on
the market capable of detecting alcohol impairment with the level of
sensitivity and specificity necessary to ensure this?
1.15. How can developers of DMS technology ensure that people with
disabilities are not disproportionately impacted? Specifically, how can
the technology accurately account for facial/body differences, chronic
health conditions, and adaptive driving technologies?
1.16. How repeatable and reliable must these systems be? Is there
societal acceptance of some potential false positives that could
inconvenience sober drivers knowing that it would capture drunk
drivers? If so, what countermeasure might best facilitate this? In
considering a possible performance standard, what false positive rate
would place too great a burden on unimpaired drivers?
1.17. What can be done to mitigate physical destruction or misuse
concerns? If mitigations exist, how might these mitigations impact the
effectiveness of DMS monitoring driver impairment?
1.18. NHTSA seeks to ensure fairness and equity in its programs and
regulations. As NHTSA considers technologies that can passively detect
impairment, some of which monitor facial features through camera-based
systems or voice recognition, how can NHTSA, in the context of an
FMVSS, best ensure these systems meet the needs of vehicle users of all
genders, races and ethnicities, and those with disabilities?
b. Passively and Accurately Detect Whether the Blood Alcohol
Concentration of a Driver of a Motor Vehicle Is Equal to or Greater
Than the Blood Alcohol Concentration Described in Section 163(a) of
Title 23, United States Code
The second option presented in BIL is one that requires the passive
and accurate detection of a driver of a motor vehicle whose BAC is
equal to or greater than the BAC described in Section 163 (a) of title
23, United States Code.
Section 163(a) of title 23 of the United States Code currently
reads as follows:
(a) General Authority.--
The Secretary shall make a grant, in accordance with this section,
to any State that has enacted and is enforcing a law that provides that
any person with a blood alcohol concentration of 0.08 percent or
greater while operating a motor vehicle in the State shall be deemed to
have committed a per se offense of driving while intoxicated (or an
equivalent per se offense).
Therefore, for this BIL option, a technology would need to
passively and accurately detect whether the BAC of a driver of a motor
vehicle is equal to or greater than .08 g/dL. Typically, BAC is
measured as the weight of alcohol in a certain volume of blood
(expressed in g/dL). Accurate measurement of BAC typically requires a
driver's blood being drawn by a phlebotomist and sent to a lab where a
medical laboratory scientist prepares samples and performs tests using
machines known as analyzers.
To measure BAC passively and accurately in a motor vehicle setting
would therefore require alternative detection methods. The DADSS
breath-based sensor, discussed above, can measure driver breath samples
at the start of the trip or during the drive to measure driver BrAC.
The DADSS touch-based sensor has the potential to be located on the
ignition push-button or on the steering wheel. Similarly, it will be
designed to take measurements at the start of the trip, or during the
drive, in the case of the steering wheel application.
Previous research through the DADSS program has established that
the alcohol measurements from breath and touch sensors can be
consistent, reproducible, and correlate well with traditional blood and
breath alcohol measurements.\190\ As noted, the prototypes under
development for a passive, accurate breath-based sensor \191\ are
planned for design completion in 2024 and a passive, accurate touch-
based sensor \192\ for 2025, with additional time needed to integrate
systems in vehicle models and conduct verification and validation.
Preliminary estimates suggest that manufacturers will need at least 18-
24 months to integrate the technology into vehicles.\193\
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\190\ Lukas S.E., Ryan E., McNeil J., Shepherd J., Bingham L.,
Davis K., Ozdemir K., Dalal N., Pirooz K., Willis M., Zaouk A. 2019.
Driver alcohol detection system for safety (DADSS)--human testing of
two passive methods of detecting alcohol in tissue and breath
compared to venous blood. Paper Number 19-0268. Proceedings of the
26th International Technical Conference on the Enhanced Safety of
Vehicles.
\191\ The breath sensor is being designed to capture a driver's
naturally exhaled breath upon first entering the vehicle.
\192\ The touch sensor is being designed to be imbedded in
something that the driver is required to touch to operate the
vehicle such as the push-to-start button or the steering wheel rim.
\193\ When might the DADSS technology be in U.S. cars and
trucks?--DADSS--Driver Alcohol Detection System. (last accessed 3/
20/2023), available at https://dadss.org/news/updates/when-might-the-dadss-technology-be-in-u-s-cars-and-trucks/.
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Therefore, a current limitation of this option is the fact that
NHTSA is not aware of a passive and accurate .08 g/dL BAC detection
technology available for production vehicles today, and hence the
timeframe for fleet implementation may be an issue.
Questions on Technologies Aimed at Passively and Accurately Detecting
Whether the BAC of a Driver of a Motor Vehicle Is Equal to or Greater
Than .08 g/dL
2.1. In a follow-up to NHTSA's technology scans, NHTSA seeks any
new information on technologies that can passively and accurately
detect whether the BAC of a motor vehicle driver is equal to or greater
than .08 g/dL.
2.2. Although the legal thresholds for DUI/DWI laws focus on BAC/
BrAC, BAC/BrAC are typically not used in isolation by law enforcement
to determine impairment. BrAC/BAC may provide additional evidence of
impairment after an officer has observed driving behavior, the
appearance of the driver (e.g., face flushed, speech slurred, odor of
alcoholic beverages on breath), the behavior of the driver, and any
statements the driver has made about alcohol or drug use. Additionally,
an officer may have administered the Standard Field Sobriety Test.
Considering this, should regulatory options use BAC/BrAC in isolation
to determine whether drivers are above the legal limit? If so, why?

[[Page 852]]

2.3. Are commenters concerned about using the legal limit (.08 g/
dL) when there are indications that some individuals exhibit
intoxication that would impact driving at lower or higher levels,
depending on a number of factors discussed in the introduction? Why or
why not? Might drivers with a BAC greater than 0 g/dL but less than .08
g/dL interpret the fact that their vehicle allows them to drive as an
indication that it is safe for them to drive after drinking? If so, are
there ways to mitigate this possible unintended consequence?
2.4. Given the quantifiable positive impacts on highway safety that
Utah has experienced since lowering its BAC thresholds to .05 g/dL,
should NHTSA consider setting a threshold lower than .08 g/dL?
2.5. Is a BrAC detection that correlates to a BAC of .08 g/dL or
above sufficiently accurate?
2.6. Would a standard that allows or requires systems that
approximate BAC using BrAC (at any concentration) meet the Safety Act's
requirement that standards be objective? Would the technology detect
BAC?
2.7. NHTSA is seeking input on how a .08 g/dL BAC detection test
procedure could be developed and executed in a FMVSS. For example, are
dosed humans required or would a test device to simulate human dosing
be required? What type of accuracy could be attained? Would static test
procedures accurately simulate dynamic performance? In a BrAC
evaluation, how would variance in vehicle cabin volume be accounted
for?
2.8. What precision/accuracy should BAC detection technology be
required to meet? Should any precision/accuracy requirement be fixed at
a final rule stage, or should it become progressively more stringent
over time with a phase-in?
2.9. For a BAC-based sensor, NHTSA seeks comment on when during a
vehicle's start-up sequence an impairment detection measurement should
occur. For example, should an initial measurement of BAC/BrAC be
required upon vehicle start-up, or before the vehicle is put into
drive, and why? What is a reasonable amount of time for that reading to
occur?
2.10. NHTSA recognizes that ongoing detection would be necessary to
identify if a driver reaches an impairment threshold only after
commencing a trip, particularly if drinking during a drive. NHTSA seeks
comment on whether BAC/BrAC measurements should be required on an
ongoing basis once driving has commenced, and, if so, with what
frequency, and why. Further, would a differentiation of the
concentration threshold between initial and ongoing detection be
recommended and why?
2.11. NHTSA requests comments on operational difficulties in using
touch-based sensing (e.g., consumer acceptance in colder climates when
gloves may interfere) or in using breath-based sensing (e.g.,
mouthwash, vaping, alcohol-drenched clothing, or other false positive
indicators).
2.12. What can be done to mitigate physical destruction and misuse?
Examples may include having a sober passenger press the touch sensor or
breathe toward the breath sensor. If mitigations exist, how might these
mitigations impact the effectiveness of alcohol detection systems?
2.13. Are there cybersecurity threats related to impairment
detection systems? If so, what are they? Are there potential
vulnerabilities that might allow outside actors to interfere with
vehicles' impairment detection systems or gain unauthorized access to
system data? How can cybersecurity threats be mitigated? Are there
impairment detection methods or technologies that are less vulnerable
than others?
2.14. What temporal considerations should NHTSA include in any
performance standards it develops (i.e., should NHTSA specify the
amount of time a system needs to make a first detection upon startup
before it will enable driving)? What amount of time is reasonable?
c. A Combination Detection Approach: Passively Monitor the Performance
of a Driver of a Motor Vehicle To Accurately Identify Whether That
Driver May Be Impaired and Passively and Accurately Detect Whether the
BAC of a Driver of a Motor Vehicle Is Equal to or Greater Than .08 g/dL
This regulatory option combines the prior two. The combination of
driver impairment detection (e.g., using camera-based driver monitoring
and other vehicle sensors) and .08 g/dL BAC detection may provide more
opportunity to capture alcohol-impaired drivers at the start of the
trip as well as those that have elevated BAC during the drive. It
further may have the potential to help mitigate false positive
detections by providing multiple detection methods.
In a NHTSA research study,\194\ all the reviewed hybrid systems
used camera-based DMS measures in addition to vehicle kinematic or
physiological measures. The study further suggested that augmentation
of camera-based measures with other measures is expected to be a trend
in driver state monitoring systems, particularly those that measure
alcohol impairment. Specifically, NHTSA's research study found sensors
from two vehicle manufacturers, Toyota and Nissan, that used variables
that have been found sensitive to alcohol impairment, including eye and
eye closure measures, sweat, and BrAC. However, neither is on the
market.
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\194\ Prendez, D.M., Brown, J.L., Venkatraman, V., Textor, C.,
Parong, J., & Robinson, E. (in press). Assessment of Driver
Monitoring Systems for Alcohol Impairment Detection and Level 2
Automation. National Highway Traffic Safety Administration.
---------------------------------------------------------------------------

Therefore, a current limitation of this option is the fact that
NHTSA is not aware of a passive and accurate .08 g/dL BAC detection
technology available for production vehicles, as discussed in the
previous section, and hence the timeframe for implementation may be a
limiting factor.
Questions on Technologies Aimed at a Combination of Driver Impairment
and BAC Detection
3.1. In light of the technology development needs to both passively
and accurately detect .08 g/dL BAC and passively monitor the
performance of a driver of a motor vehicle to accurately identify
whether that driver may be impaired, are there interim strategies NHTSA
should pursue?
3.2. If an alcohol impairment detection system utilizes both BAC
detection and DMS components, which DMS metrics best complement a BAC
system to ensure accuracy, precision, and reliability?
3.3. One possible benefit of a hybrid approach is that a camera
system could help prevent intentional defeat of BAC/BrAC sensors. For
example, when a driver presses a touch sensor to measure BAC, a camera
using machine vision could verify that it is the driver and not a
passenger who touches the sensor. Could the camera provide additional
benefits against defeating the system?
3.4. NHTSA is considering a phased approach to addressing alcohol
impairment. The agency is concerned about false positives. Effectively,
this approach could have a first phase that aims to address alcohol-
impaired drivers with a BAC of .15 g/dL or higher, where an alcohol
sensor could have better accuracy in detecting alcohol-impairment, in
combination with a camera-based DMS and/or other vehicle technologies.
By improving the BAC detection accuracy, it may gain more consumer
acceptance by lowering the false positive rate (i.e., the chance that
someone with a BAC below .08 g/dL is incorrectly identified as alcohol-

[[Page 853]]

impaired by a vehicle system). This would also target the drivers with
the highest levels of impairment. With time and accuracy improvement, a
second phase could be pursued to achieve the .08 g/dL BAC accuracy
needed to comply with BIL. NHTSA therefore seeks comment on the
viability of this regulatory approach. Is a BAC of .15 g/dL the right
limit to phase in?
3.4. An option could also be a system with primary and secondary
indicators within a driver impairment algorithm. For example, a system
could incorporate a zero or low (.02 g/dL) tolerance BAC detection
technology to initially sense whether alcohol is present in the
vehicle. This would serve to ``wake up'' a driver impairment algorithm.
Since this could be hand sanitizer or alcohol on a person's clothing, a
second confirmation of driver impairment from a driver monitoring
system would be needed. Driver performance measures, such as eye gaze,
lane weaving, etc. would be the primary indicators of impairment and
utilize evidence of alcohol as a supplementary indicator for alcohol
impairment. Given this approach, would such a system allow a vehicle to
better distinguish between alcohol impairment and other forms of
impairment that have similar indicators (i.e., the percentage of eyelid
closure can be an indicator of both drowsy and drunk driving)? NHTSA
notes that it has not identified any passive, production-ready,
alcohol-impaired driver detection technology capable of accurate
detection at .02 g/dL and seeks comment on the status of such
technology.
3. Proposed Vehicle Interventions Once Driver Impairment or BAC Is
Detected
Once drunk driving or driver impairment is detected by a vehicle,
the question becomes--what does the vehicle do with that information?
BIL states that advanced drunk and impaired driving technologies
include the ability to ``prevent or limit'' motor vehicle operation.
There are a variety of strategies to prevent or limit operations that
have been under research or have been implemented in production
vehicles, such as the ignition interlocks discussed above.\195\ Others
range from not allowing the vehicle to move out of park (transmission
interlocks), to warnings (used perhaps as a supplement to an
intervention approach), to slowing or stopping the vehicle (in lane, or
on the shoulder or right-most lane). There are also many considerations
involved in selecting appropriate interventions, given the timing of
impairment detection (i.e., prior to the start of driving or during
driving). Additionally, interventions appropriate for drunk driving may
be different than those employed for other forms of driver impairment.
For example, drunk drivers may respond more slowly to warnings than a
sober but drowsy driver. Additionally, repeatedly warning a driver
beyond the level or frequency that generates a positive reaction could
lead to consumer annoyance and defeat efforts. NHTSA seeks to balance
these concerns.
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\195\ NHTSA notes that nothing in this document is intended to
replace ignition interlocks used as a sanction for impaired driving
offenses.
---------------------------------------------------------------------------

a. Prohibiting Driving at Start of the Trip
Ideally, once a defined level of alcohol has been accurately sensed
from an impaired driver by vehicle technology, that individual would be
prohibited from driving the vehicle. For example, this prohibition
could be accomplished through an ignition or transmission shift
interlock for an internal combustion engine vehicle. The vehicle could
be put in accessory mode, and not able to move. Prohibiting an impaired
driver from driving the vehicle at the start of a trip targets the
largest number of alcohol-impaired fatalities.
The .08 g/dL BAC touch-sensor and/or breath-sensor detection
technologies, which can ideally take immediate BAC measurements, are
better suited for prohibiting driving at the start of the trip versus
others that require a temporal measure of driver performance. While the
technology readiness of the DADSS technologies to provide accurate .08
g/dL BAC detection is still undergoing research and development at this
time, there are still many challenges associated with this prevention
method that should be considered if it were to become a viable
regulatory option.
Assuming an accurate detection technology is fully developed
(including a standardized method for testing), NHTSA would have to
consider the overall effectiveness of the intervention strategy and the
overall cost (economic, societal, etc.). Some considerations would,
among other things, include: consumer acceptance; defeat strategies;
unintended consequences of immobilizing a vehicle; need for an
emergency override; and time between disablement and re-enablement.
NHTSA is seeking feedback on the following questions.
Questions on Prohibiting Driving at the Start of the Trip
4.1. How would an alcohol-impaired person react to their vehicle
not starting, and how can/should this be considered? Would some
individuals decide to walk to their destination in the road, increasing
their risk of being hit by another vehicle? Would they get a sober
person to start their vehicle and then take over the driving task
themselves? Are there countermeasures to discourage this practice by
shutting down the vehicle for a period of time after two failed
attempts? NHTSA seeks comment on potential research designs to develop
better information in this area.
4.2. What are the pros/cons of an ignition interlock as opposed to
a transmission interlock prevention method for internal combustion
engine vehicles? Is one superior to the other? Should both be
acceptable compliance options if considered for an FMVSS? How would
this differ for electric vehicles and what issues specific to electric
vehicles should NHTSA consider?
4.3. NHTSA seeks comment on any adverse consequences of an impaired
driver being unable to drive his/her vehicle. For example, this could
result in an alcohol-impaired person being stranded late at night for
hours and susceptible to being a victim of crime or environmental
conditions (e.g., weather). Or an alcohol-impaired camper may need to
use his/her vehicle to escape from a rapidly approaching wildfire or
environmental conditions (weather). How often would such incidences
expect to occur (assuming full fleet implementation)? Are there logical
strategies for mitigating the negative effects? What if the vehicle
owner wishes to drive their vehicle on private land (i.e., not on
public roads)?
4.4. Given the previous examples, should there be an override
feature for emergencies? Should the maximum speed of the vehicle be
limited during override? How could an override feature be preserved for
extreme situations and not used routinely when alcohol-impaired?
4.5. If a system detects alcohol impairment prior to the start of a
trip and an interlock is activated, should retest(s) be allowed, at
what elapsed time interval(s), and why? NHTSA especially seeks comment
on test/data analysis methods for determining an optimal retest
interval strategy. Finally, should data be recorded on the vehicle if
retesting is permitted?
b. Vehicle Warnings Once Impairment Detected (On-Road)
In addition to driver impairment being detected and prevented at
the start of a trip, driver impairment can be monitored over time
during the drive. Detecting that a driver is alcohol-impaired mid-trip
is obviously a less

[[Page 854]]

desirable scenario (than detecting that a driver is impaired via an
ignition/transmission interlock) since an alcohol-impaired driver may
have the unfortunate opportunity to get in a crash before the driver
impairment is detected. However, this type of strategy may mitigate a
larger group of driver-impairment fatalities, not just alcohol, and
vehicle warnings could be relatively low cost.
That said, there are many challenges associated with this
intervention that should be addressed for it to become a viable
regulatory option. Assuming an accurate detection technology was fully
developed (including a standardized method for testing), NHTSA would
have to consider the overall effectiveness of warnings as an
intervention strategy against the various driver impairments, and the
overall cost (e.g., economic, societal). Some of the considerations
would, among other things, include: consumer acceptance, defeat
strategies, unintended consequences of warnings, need for an
incapacitation sensor, etc. NHTSA is seeking feedback on the following
questions.
Questions on Vehicle Warnings Once Impairment Is Detected
5.1. NHTSA is aware of many vehicle manufacturers using visual/
auditory warnings (e.g., a coffee cup icon) and encouraging drivers to
take a break from the driving task. There are also visual/auditory/
haptic warnings to identify distracted driving or hands off the
steering wheel while Level 2 driving automation systems are engaged.
NHTSA is interested in any studies to support the effectiveness of
these warnings, including designing against defeat strategies. NHTSA
also seeks comment and studies on whether similar warnings may be
effective for alcohol-impaired or incapacitated drivers or would
additional interventions be needed. The system attributes that enhance
a system's effectiveness are of particular interest to NHTSA. Are there
any unintended consequences from these warnings? If so, what are they?
5.2. NHTSA's research suggested that indicators of alcohol
impairment are often also potential indicators of other conditions,
such as drowsiness. Hence, the preventative measures of each condition
may need to be addressed differently. For example, distracted drivers
can quickly return their attention to the driving task, and drowsy
drivers can recover with adequate rest as an intervention, but drunk
drivers may need a much longer recovery time as alcohol
metabolizes.\196\ NHTSA therefore requests research and information on
what warning strategy would effectively encourage both drivers that are
alcohol-impaired and drivers that have a different impairment to
improve their performance in the driving task (e.g., by resting,
getting a caffeinated beverage)? Or is there research to support that a
warning would only be effective for a distracted driver or a drowsy
driver, but may aggravate an alcohol-impaired driver? Are there other
adverse consequences from using warnings to address multiple types of
impairment? If so, what are they?
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\196\ Hancock, P.A. (2017). Driven to distraction and back
again. In Driver Distraction and Inattention (pp. 9-26). CRC Press.
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5.3. NHTSA seeks comment on how manufacturers balance multiple
alerts in response to different impairment detections. Given the many
forms of impairment, if systems are developed that can distinguish
effectively between alcohol impairment and other forms, is it
practicable to employ a variety of different responses? Will multiple
warnings (auditory, visual, or haptic) or other interventions for
different forms of impairment only serve to confuse drunk drivers and
lessen effectiveness for responses to drunk driving?
5.4. NHTSA seeks comment on how warnings, especially multiple
warnings, may impact drivers with an auditory or sensory processing
disability. Would multiple warnings distract some drivers?
5.5. NHTSA seeks comment on how systems react if the drowsy driver
(or other inattentive or impaired driver) does not respond to warnings?
What types of warning escalation strategies (timing, perceived urgency,
and frequency) are used in industry and are they consistent among
manufacturers?
c. Vehicle Interventions Once Impairment Is Detected (On-Road)
The most challenging countermeasure for preventing drunk and
impaired driving fatalities is implementing vehicle interventions while
the vehicle is in motion. There are a variety of strategies that have
been under research, in development, or in production. Some are
discussed below:
Limp Home Mode--once impairment (or incapacitation) is detected,
the vehicle speed is reduced to a lower speed for a given amount of
time. Adaptive cruise control with a long following gap setting could
be turned on to prevent a forward crash with other vehicles. Systems
may provide the driver a warning that the driver needs to leave the
highway.
Stop in Lane--depending upon the vehicle manufacturer, the vehicle
reduces speed and ultimately stops in the lane after a given time
period of unresponsiveness of the driver (typically when the Level 2
driving automation system is engaged), putting on emergency flashers
and unlocking the doors for easier entry into the vehicle. This
presents a new hazard to motorists approaching the stopped vehicle, and
a different kind of hazard for occupants of the stopped vehicle (i.e.,
the original hazard was the drunk driver, but now the hazard is
potentially being hit by other motorists). Some SAE Level 2 driving
automation systems make use of this feature if the driver becomes
unresponsive and some also can call for assistance.
Pull over to the Slow Lane (Right Lane) or Shoulder--some vehicle
manufacturers have introduced more advanced concept or production
vehicles that can pull over to the side of the road or into the ``slow
lane'' once driver impairment (or incapacitation) is detected when
Level 2 systems are engaged.\197\ This requires the vehicle to be
equipped with lane-changing capability, where a vehicle needs to be
able to understand whether there are vehicles or other road users in
(or approaching) its blind spot in order to make a lane change. Modern
vehicles increasingly have the technology to detect lane lines and
blind spots, and to automate lane changes, under certain circumstances.
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\197\ https://www.forbes.com/wheels/advice/automatic-emergency-stop-assistance/.
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For example, in 2019, media reports suggested a Volvo system would
detect drunkenness, drowsiness, or distraction,\198\ and interventions
could include limiting the speed of the vehicle or slowing it down and
safely parking the car.\199\ The agency believes this Volvo system will
not be available on production vehicles in the U.S. until 2024.\200\
The agency will evaluate technologies as they become available.
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\198\ https://www.motortrend.com/news/volvo-drunk-driving-distracted-cameras-sensors-safety/.
\199\ https://www.theverge.com/2019/3/20/18274235/volvo-driver-monitoring-camera-drunk-distracted-driving.
\200\ https://www.volvocars.com/us/cars/ex90-electric/.
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Questions on Vehicle Interventions Once Detected (On-Road)
6.1. What types of vehicle interventions are in use today for SAE
Level 2 driving automation systems when the system detects the driver
is incapacitated? What prevents their use

[[Page 855]]

in being coupled with driver impairment or BAC detection technology?
What is the feasibility of using these interventions without engaging
Level 2 driving automation?
6.2. Stopping in the middle of the road could introduce new motor
vehicle safety problems, including potential collisions with stopped
vehicles and impaired drivers walking in the roadway. What strategies
can be used to prevent these risks? How are risks different if the
vehicle stops on the shoulder of the road? What preventative measures
could be implemented for vehicles approaching the stopped vehicle? What
are the risks to occupants involved in those scenarios?
6.3. What is the minimum sensor and hardware technology that would
be needed to pull over to a slower lane or a shoulder and the cost?
Questions on Other Approaches To Reduce Impaired Driving
7.1. As vehicle technologies continue to develop with potential to
reduce impaired driving, what steps or approaches should NHTSA consider
now, including potential partnerships with States or other entities?
7.2. Which best practices have States found most effective in
reducing impaired driving? Have States found approaches such as sharing
information about drunk driving convictions to be helpful in reducing
impaired driving?

V. Summary of Other Efforts Related to Impaired Driving

NHTSA is aware of several other ongoing efforts by external
entities to establish performance requirements for systems to detect
alcohol impairment or otherwise influence the development of such
performance requirements.
SAE International has developed SAE J3214, a ``Breath-Based Alcohol
Detection System'' standard. This standard focuses on directed breath
zero-tolerance systems, which are systems that look for any level of
alcohol via the driver's BrAC and require that a driver direct a breath
toward a device for measurement. The standard was published on June 27,
2021.\201\
---------------------------------------------------------------------------

\201\ https://www.sae.org/standards/content/j3214_202101/.
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The various New Car Assessment Programs (NCAPs) from around the
world are also considering protocols for detection of driver state and
system warning or intervention.\202\ Euro NCAP focuses on DMS and while
its assessment protocol mentions impaired driving, the actual
assessment focuses only on distraction, fatigue (i.e., drowsiness), and
unresponsive drivers.\203\ Euro NCAP currently describes no specific
assessment for alcohol impairment. Euro NCAP Vision 2030 states that
expanding the program's scope of driver impairment by adding specific
detection of driving under the influence is a priority for the mid-
term: ``. . . [A] key real-world priority for the midterm therefore is
to expand the scope of driver impairment adding specific detection of
driving under the influence and sudden sickness with advanced vision
and/or biometric sensors and introducing more advanced requirements for
risk mitigation functions.'' \204\ Mid-term is not defined in the text
of the document, but a graphic indicates that 2032 is Euro NCAP's
targeted timeline. Even so, NHTSA is monitoring Euro NCAP's efforts to
see if they might be leveraged in this rulemaking activity. NHTSA's
understanding is that Australasian NCAP is considering protocols like
Euro NCAP. Additionally, NHTSA has sought comment on the inclusion of
DMS and alcohol detection systems in U.S. NCAP.\205\ NHTSA is in the
process of considering all comments received and drafting a final
decision that will establish a roadmap that includes plans to upgrade
U.S. NCAP in phases over the next several years. Other organizations,
like Consumer Reports \206\ and the Insurance Institute for Highway
Safety (IIHS),\207\ include DMS in their programs. Finally, NHTSA is
aware of and following the work of the Impairment Technical Working
Group that is intended to assist with the implementation of advanced
impaired driving technology.\208\ The group is co-chaired by members of
the Johns Hopkins Center for Injury Research and Policy at the John
Hopkins Bloomberg School of Public Health and MADD. The Impairment
Technical Working Group formed with the goal of ``identifying efficient
and effective approaches for implementing driver impairment prevention
technology in new cars.'' The Impairment Technical Working Group is one
of many groups or organizations interested in influencing this
rulemaking proceeding. On April 18, 2023, the Impairment Technical
Working Group issued a short ``Views Statement'' that included three
recommendations for implementing advanced impaired driving
technology.\209\ These three recommendations are largely duplicative of
the mandate in BIL but deviate slightly in that they explicitly request
that multiple impairment types be included through this rulemaking
(i.e., not limited to alcohol impairment). Also, the group's three
recommendations, when read together, describe the group's preference
for the third (i.e., hybrid) option in BIL.
---------------------------------------------------------------------------

\202\ NHTSA's New Car Assessment Program (NCAP) provides
comparative information on the safety performance of new vehicles to
assist customers with vehicle purchasing decisions and to encourage
safety improvements. In addition to star ratings for crash
protection and rollover resistance, the NCAP program recommends
particular advanced driver assistance systems (ADAS) technologies
and identifies the vehicles in the marketplace that offer the
systems that pass NCAP performance test criteria for those systems.
\203\ https://cdn.euroncap.com/media/70315/euro-ncap-assessment-protocol-sa-safe-driving-v101.pdf.
\204\ https://cdn.euroncap.com/media/74468/euro-ncap-roadmap-vision-2030.pdf.
\205\ 87 FR 13452 (March 9, 2022), available at https://www.federalregister.gov/documents/2022/03/09/2022-04894/new-car-assessment-program.
\206\ Driver Monitoring Systems Can Help You Be Safer on the
Road--Consumer Reports.
\207\ IIHS creates safeguard ratings for partial automation.
\208\ U.S. Senator Ben Ray Luj[aacute]n (2022) Luj[aacute]n,
Advocates Announce Technical Working Group to Implement Advanced
Impaired Driving Prevention Technology. June 14, 2022. https://www.lujan.senate.gov/newsroom/press-releases/%EF%BF%BClujan-advocates-announce-technical-working-group-to-implement-advanced-impaired-driving-prevention-technology/.
\209\ https://advocacy.consumerreports.org/research/technical-working-group-on-advanced-impaired-driving-prevention-technology-views-statement-on-implementing-driver-impairment-prevention-technology/.
---------------------------------------------------------------------------

VI. Privacy and Security

In considering next steps, NHTSA is aware of the need for
comprehensive analysis of the privacy considerations that are relevant
to developing performance requirements for systems that would identify
and prevent individuals who are intoxicated from driving. Per the E-
Government Act of 2002 and internal DOT policies and procedures, NHTSA
intends to conduct a privacy threshold analysis (PTA) to determine
whether the agency should publish a draft Privacy Impact Assessment
(PIA) concurrent with its issuance of a regulatory proposal that would
establish performance requirements for advanced impaired driving
technology. Although NHTSA welcomes privacy-related comments in
response to this advance notice of proposed rulemaking, the agency
expects that any future regulatory proposal and any accompanying draft
PIA would provide the public with more detailed analysis necessary to
evaluate potential privacy risks and proposed mitigation controls
associated with advanced impaired driving technology.
NHTSA also intends to consider closely any potential security
implications that are relevant to developing performance requirements

[[Page 856]]

for systems that would identify and prevent individuals who are
intoxicated from driving. NHTSA requests comments on privacy and
security issues that the agency should consider while developing its
proposal. NHTSA acknowledges that many of the answers to these
questions would be design-specific, and thus, expects that commenters
might provide generalized input now with more specific input at the
proposal stage.

Questions About Privacy and Security Considerations

8.1. NHTSA understands that personal privacy considerations are
critical to the design of any system that monitors driver behavior or
condition. Such considerations are also one component of consumer
acceptance of systems described in this advance notice of proposed
rulemaking. NHTSA seeks comment on privacy considerations related to
use and potential storage of data by alcohol and impairment detection
systems and how best to preserve driver and passenger personal privacy.
Are there strategies or requirements (e.g., prohibitions on camera-
based DMS from recording certain types of imagery) to protect privacy?
8.2. Given the potential for different privacy impacts associated
with different types of systems and information used in those systems,
how should NHTSA weigh the different potential privacy impacts? For
example, how should accuracy be weighed against privacy? Do certain
metrics result in less privacy impact than others while providing the
same or more accuracy? If so, how?
8.3. What performance-based security controls should NHTSA consider
including in its potential performance requirements for advanced
impaired driving technology? Are there any industry or voluntary
standards specific to these technologies that NHTSA should consider? If
not, which standards do commenters believe would be most appropriate
for these systems to comply with and why?
8.4. Are there any additional security vulnerabilities that these
systems would present that do not already exist in modern vehicles
(e.g., passenger vehicles that are equipped with various technologies
such as automatic emergency braking, lane keeping support, and others)?
If so, what needs to be done to mitigate those potential
vulnerabilities?
8.5. What suggestions do commenters have regarding how the agency
should go about educating the public about security and privacy aspects
of advanced impairment and drunk driving detection technology?

VII. Consumer Acceptance

As discussed in the authority section of this document, consumer
acceptance is one component of practicability that NHTSA must consider
when developing a FMVSS. NHTSA is aware that a combination of
misinformation related to advanced drunk and impaired driving
technologies, and misbelief that there exists a right to drive while
drunk \210\ have resulted in some individuals believing that this
rulemaking is pursuing a course of action that might unduly infringe
upon their rights. NHTSA has received correspondence that leads the
agency to believe that some individuals believe that they not only have
a right to drive,\211\ but a right to drive while intoxicated by
alcohol.\212\ As NHTSA has said before, driving is a privilege, not a
right.\213\ These examples highlight potential consumer acceptance
challenges, but not all such instances would be considered legitimate
or sufficient to undermine the practicability prong of the Safety Act.
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\210\ https://www.rollingstone.com/culture/culture-news/tiktok-drunk-driving-booze-cruise-gang-alcohol-1234588210/. NHTSA would
believe this trend was entirely edgy satire if it had not received
correspondence that indicates that some genuinely believe they have
a right to drive drunk. ``Few would react the same to someone
announcing they occasionally text while driving as they would to
admitting to the occasional booze cruise while statistically there
isn't much difference in added danger.'' NHTSA agrees that both
texting while driving and driving while intoxicated are dangerous
activities that put the safety of the public at risk.
\211\ NHTSA has said before that driving is a privilege, not a
fundamental right. See https://www.nhtsa.gov/open-letter-driving-
public#:~:text=Driving%20is%20a%20privilege%2C%20and,to%20protect%20a
ll%20of%20us. Obeying the rules of the road is a prerequisite for
the privilege of driving. See https://www.nhtsa.gov/teen-driving/parents-hold-keys-safe-teen-driving.
\212\ Assertions that drunk driving is acceptable, or even a
right, are not new. This 1984 opinion piece in the New York Times
provides an example of someone who thought he was entitled to drive
drunk, seemingly because he hadn't killed or injured anyone yet. See
https://jalopnik.com/check-out-this-pro-drunk-driving-op-ed-the-nyt-publishe-1847408294; https://www.nytimes.com/1984/06/03/nyregion/long-island-opinion-drinking-and-driving-can-mix.html. Please visit
the docket for a letter NHTSA received that appears to assert that
some individuals should be permitted to drive drunk.
\213\ Id.
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Additionally, NHTSA is encouraged by the results of a recent study
conducted by researchers with Johns Hopkins Bloomberg School of Public
Health and published in the Journal of the American Medical Association
Network Open.\214\ This study provides survey results from a relatively
small-scale study with the objective of measuring public support for
driver monitoring and lockout technologies. The survey contained two
parts, one part querying whether participants supported or opposed
``the recent action by Congress to require drunk driving prevention in
all new vehicles.'' The second part ask participants to indicate their
level of agreement regarding six different warning or lockout
technologies. A five-point scale was used for responses to both parts
of the survey (strongly agree to strongly disagree). The primary
findings of the study were that support for the congressional mandate
on vehicle impairment detection technology was high, with 63.4 percent
of respondents supporting the law (survey part 1.) For survey part 2,
the author reported that 64.9 percent of respondents either agreed or
strongly agreed with the statement, ``All new cars should have an
automatic sensor to prevent the car from being driven by someone who is
over the legal alcohol limit.'' Results for neutral and negative
responses were only reported in graphical form, not exact measurements
(i.e., reported percentages and confidence intervals).
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\214\ https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2803962?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=042023.
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Safety is the predominant consideration when evaluating potential
vehicle performance requirements designed to combat drunk driving
effectively. However, the public may not realize estimated associated
benefits if vehicle performance requirements and the technologies that
meet them are not designed to differentiate with precision drivers who
are impaired from those who are not, minimize interventions to those
necessary to achieve results, and conform with principles of human
factors engineering and design.

Question About Consumer Acceptance

9.1. NHTSA requests comment on legitimate consumer acceptance
issues related to advanced drunk and impaired driving technologies and
suggestions for how the agency might be able to craft future proposed
performance requirements to remedy any consumer acceptance issues.

VIII. General Questions for the Public

In the preceding preamble, NHTSA seeks comment on a variety of
complex issues related to establishing a new FMVSS to require that
passenger motor vehicles be equipped with advanced drunk and impaired
driving prevention technology. These questions are numbered and
included throughout the preamble text in the appropriate sections. But
not all questions fit neatly under the preceding titles. As such,

[[Page 857]]

NHTSA also seeks comment on the remaining questions listed below.
10.1. NHTSA seeks comment on any reliability or durability
considerations for alcohol impairment detection technology that may
impact functionality over its useful life.
10.2. NHTSA requests any information regarding the final installed
costs, including maintenance costs, of impairment detection systems.
10.3. Should NHTSA propose a standardized telltale \215\ or
indicator \216\ (or set of telltales) indicating that impairment has
been detected (and/or that vehicle systems have been limited in
response)? Are there standardized industry telltales or indicators
already developed for this sort of system that NHTSA should consider?
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\215\ Telltale means an optical signal that, when illuminated,
indicates the actuation of a device, a correct or improper
functioning or condition, or a failure to function.
\216\ Indicator means a device that shows the magnitude of the
physical characteristics that the instrument is designed to sense.
---------------------------------------------------------------------------

10.4. NHTSA broadly seeks comment on how to best ensure that
manufacturers have the flexibility to develop more effective impairment
detection technology while preserving a minimum level of accuracy and
reliability.
10.5. Should NHTSA consider establishing a requirement that allows
a vehicle's BAC detection threshold to be adjusted downward based on
the BAC thresholds of local jurisdictions or fleet owners? Note, this
technology would not be intended or designed to replace a State's
enforcement of its own statutes.
10.6. Earlier in this document, NHTSA noted that progress in
reducing drunk driving resulting from many behavioral safety campaigns
has plateaued. Should NHTSA devote more of its behavioral safety
resources towards those programs and efforts that address underlying
contributors to alcohol use disorder, including drunk driving, like
mental health conditions? Are there effective behavioral safety
campaigns or tactics NHTSA is not using?

IX. Rulemaking Analyses

A. Executive Order 12866, Executive Order 13563, Executive Order 14094,
and DOT Regulatory Policies and Procedures

The agency has considered the impact of this ANPRM under Executive
Orders (E.O.) 12866, 13563, 14094 and the Department of
Transportation's regulatory policies and procedures. This action has
been determined to be significant under E.O. 12866 (Regulatory Planning
and Review), supplemented and reaffirmed by E.O. 13563 and amended by
E.O. 14094, and DOT Order 2100.6A, ``Rulemaking and Guidance
Procedures.'' It has been reviewed by the Office of Management and
Budget under E.O. 12866. E.O. 12866 and 13563 require agencies to
regulate in the ``most cost-effective manner,'' to make a ``reasoned
determination that the benefits of the intended regulation justify its
costs,'' and to develop regulations that ``impose the least burden on
society.'' Additionally, E.O. 12866 and 13563 require agencies to
provide a meaningful opportunity for public participation, and E.O.
14094 affirms that regulatory actions should ``promote equitable and
meaningful participation by a range of interested or affected parties,
including underserved communities.'' We have asked commenters to answer
a variety of questions to elicit practical information about the
approach that best meets these principles and the Safety Act and any
relevant data or information that might help support a future proposal.

B. Privacy Act

Anyone can search the electronic form of all documents received
into any of NHTSA's dockets by the name of the individual submitting
the document (or signing it, if submitted on behalf of an association,
business, labor union, etc.). As described in the system of records
notice DOT/ALL 14 (Federal Docket Management System), which can be
reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-systemrecords-notices, the comments are searchable by the name of
the submitter.

C. Regulation Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.

Issued in Washington, DC, under authority delegated in 49 CFR
1.95 and 501.5.
Ann Carlson,
Acting Administrator.
[FR Doc. 2023-27665 Filed 1-4-24; 8:45 am]
BILLING CODE 4910-59-P

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