September 28, 2017

This is part three of ETW’s ongoing analysis of USDOT’s recent guidance on automated vehicles, Automated Driving Systems 2.0: A Vision for Safety. Read part one for coverage of the release event and an overview of the document and part two for analysis of the revamped voluntary guidance for manufacturers.

This month, USDOT released an update to the federal government’s policy guidance for automated vehicles (AVs), titled Automated Driving Systems 2.0: A Vision for Safety. In the interest of helping states prepare for the advent of AVs, the document included best practices for states considering AV policies.

For state leaders, AVs are a winning proposition: the nascent technology has the potential to make transportation safer, more efficient, and less harmful to the environment.

And then there is the economic incentive: the market for transportation technologies could be a whopping $7 billion by 2050 – and with that money comes highly skilled workers, well-paying jobs, and recognition as a tech hub.

In recent years, these potential benefits galvanized state policymakers to enact laws and issue executive orders intended to attract AV developers to their states.

And while the specific policy approaches vary, the headlines do not. Without fail, local newspapers publish articles immediately afterwards that herald the enactment of new AV policies, many of which look like this: “Governor ____ signs law to make _____ the leader in driverless cars”.

The intent is pure: since the federal government has not yet established regulations around AVs, states and localities have the ability to set their own policies to provide developers with more regulatory certainty.

However, 20 states now have AV laws on the books – some similar, some vastly different – and a handful have established AV policies through executive orders. The result is a patchwork of disparate regulations that AV developers must navigate in order to test their AVs across the United States.

(Source: National Conference of State Legislatures)

For this reason, USDOT’s latest guidance seeks to clearly delineate the respective role of federal, state, and local governments in regulating the testing, production, and deployment of AVs.

Effectively, the National Highway Traffic Safety Administration (NHTSA) will continue to enact and enforce Federal Motor Vehicle Safety Standards (FMVSS), educate consumers on safe driving practices, and conduct defect investigations and issue recalls in the event that a vehicle is considered to be unsafe.

Meanwhile, states will continue to fulfill their traditional – yet critical – roles in regulating insurance and liability, licensing human drivers, enacting and enforcing traffic laws, and conducting vehicle safety inspections.

In an effort to encourage more uniformity in state policies for AVs, NHTSA reviewed legislation considered in states across the past several years and developed a set of best practices for states to follow. Rather than providing a prescriptive set of policies, NHTSA recommended that states follow a set of four safety-related principles, each of which are described below.

Provide a “technology-neutral” environment

In the past couple of years, several state legislatures have considered bills that would effectively prohibit companies that are not traditional automobile manufacturers from testing and deploying in their state.

One piece of model state legislation, the Safe Automated Vehicle (SAVe) Act, prompted criticism after it was introduced in Michigan, Georgia, Illinois, and four other states. It was written to only allow manufacturers who regularly produce automobiles to test and deploy AVs in a state.

While this battle played out across several states, it became particularly contentious in Michigan when tech firms like Waymo railed against automakers for their efforts to advance the legislation. Although Michigan’s legislature ultimately reversed course, the Self-Driving Coalition for Safer Streets, which is led by former NHTSA Administrator David Strickland, decried the SAVe Act as a major barrier to AV development:

“We do not support state bills currently under consideration in many states, including Georgia, Tennessee, Illinois and Maryland, which would favor one company, create an uneven playing field and deter life-saving innovations from reaching citizens in these states, by precluding or severely limiting technology companies from testing or deploying fully autonomous vehicles,” Strickland said in a press release this February.

NHTSA endorsed this argument in its best practices for state legislatures, stating “no data suggests that experience in vehicle manufacturing is an indicator of the ability to safely test or deploy vehicle technology.”

For this reason, NHTSA says, an AV developer should not be prevented from testing and deploying their technology as long as they meet all applicable federal and state laws.

Provide licensing and registration procedures

The predecessor of ADS AVS, the Federal Automated Vehicle Policy Statement (FAVP), drew criticism for appearing to suggest that states should require manufacturers to submit a Safety Assessment Letter (SAL) to the state before they began testing. The SAL was intended to be a document that described how they met safety goals across 15 areas.

According to a USDOT official, NHTSA planned to officially release the SAL in the months following the release of the FAVP and publish a notice in the Federal Register. However, after considering the massive influx of public comments critiquing the SAL after the FAVP was released, NHTSA ultimately decided not to publish it.

Although the FAVP was meant to say that manufacturers could voluntarily send the SAL to NHTSA and states, some of the language was vague – especially in the FAVP’s guidance for state legislatures. This was concerning to AV manufacturers, who read the guidance to suggest that states should require the submission of SALs prior to testing. Manufacturers argued that states were neither authorized nor had the expertise to evaluate the design and performance of an AV.

For this reason, ADS AVS scrapped the SAL and provides a loose framework for how states should interact with AV manufacturers. It recommends that states should do the following:

• Define “motor vehicle” in AV laws to include any vehicle operating on the state’s roads and highways;
• License AV entities and test operators for AVs (a la California’s AV laws, which require companies to apply for an AV testing permit);
• Register all vehicles equipped with AV technology; and
• Require that AV developers testing in their state demonstrate financial responsibility through surety bonds or self-insurance.

Provide reporting and communications methods for Public Safety Officials

In order to allow states and NHTSA to develop a greater understanding of how AVs will integrate with human drivers and operate on public roads, NHTSA recommends that states should monitor the operation of AVs by creating methods for communicating about AV operation and reporting incidents.

California is likely the best model for this approach, as its state laws require manufacturers to submit annual reports on the amount of miles driven and how often the AV technology is disengaged. Manufacturers are also required to submit a report whenever the vehicle is involved in a collision, which is then published online by the California Department of Motor Vehicles.

Review traffic laws and regulations that may serve as barrers to operation of ADS.

Finally, NHTSA recommends that states review their motor vehicle codes and traffic laws in order to identify items that may pose regulatory barriers to AVs.

The most infamous case of this is the state of New York, which has a law from 1971 requiring that a human driver have their hands on the wheel at all times. Since similar laws abound in states and cities across the U.S., NHTSA is urging governments to proactively address these issues in advance.