Monday, May 28, 2018

Actual AV Regulation? Texas Smirks, But Ohio Shyly Smiles

I laughed, okay, I ridiculed, when President Reagan said "The most terrifying words in the English language are: I'm from the government and I'm here to help." I don't laugh anymore because, as a so-called national expert on some transportation topics, I often see more wisdom out there where transit, shared use, land use, infrastructure, and community transportation work is being done than in DC, inside the halls of government or outside. Instead of the "I'm from DC and I'm here to help" line, the better approach is to view regions, states and communities as petri dishes, or, as Justice Brandeis called them "laboratories of democracy" that sometimes can use technical assistance, advice, a nod in the direction of a particular publication, or a recommendation for a peer contact of someone two steps ahead who speaks the same language and who can provide guidance.

Warning - non-transportation digression here: Cannot resist lawyerly impulse of entrenched training to cite and provide a full quote. Justice Brandeis actually never used the phrase "laboratory of democracy" in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), a case arising out of an Oklahoma statute regulating the business of manufacturing ice (at a time before every American owned a freezer), but the actual words are close enough that one may excuse the now traditional misquoting of Brandeis' language. Indeed, like so many memorable words from Supreme Court justices, Brandeis wrote this lovely text in a dissenting opinion.
It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. 
285 U.S. at 311 (Brandeis, J., dissenting).

As with people, states do not often separate from the herd


But no amount of innovation gets rid of the dual problem that:
(1) the US underinvests in public transportation and pedestrian and bike infrastructure so that we undermine transportation equity, affordability, and safety, as well as public health; and
(2) those very states, communities, and rural and and metropolitan areas overwhelmingly prefer to take federal dollars even with all strings attached. Read a recent Transport Politic post for a long read about transit. (I really like Yonah Freemark's writing on that blog; always thoughtful analysis.)

Exceptional situation for transportation funding and regulation


Autonomous vehicles present the exceptional transportation situation where the federal government - through both regulatory agencies and Congress - has chosen not, or failed to reach consensus on how, to govern the emerging, and still experimental, industry of autonomous vehicles (AVs). No carrots and sticks of federal funding or actual laws are telling the states what to do or strongly suggesting that they select a particular course.

Yes, the following is not breaking news, but I see more and more the states dividing themselves into three categories of AV governance:

  1. Do what you want; we won't bother you with pesky regulation; we are desperate for a date with industry;
  2. Trust, but verify; and
  3. We say we're in the lead, innovative, and all that, but don't bring those newfangled contraptions into our states without a police escort, complicated notifications, or some other requirement that companies will avoid by testing in another state.
Joining the fast lane of category #1 is Texas, while the slow crowd welcomes Ohio to category #3.

Lone Star State


The Texas statute refers to fully automated vehicles, and not at all to partial AV systems, such as the Tesla Autopilot and similar "driver assist" systems. Passed in June of 2017, SB 2205 (enacted 6/15/17), amends parts of the Texas Transportation Code. Without any ifs, ands, or buts, the state law completely preempts counties or municipalities from regulating any aspect of AV equipment and operations any differently than they regulate conventional vehicles.

While the AV owner is considered the operator and he or she is not required to be present in the vehicle while it is actually operating (thus it is at loggerheads with the dictionary and actual colloquial definition), the "automated driving system is considered to be licensed to operate the vehicle." So, does it have to pass a driving test that any 16 year old must pass? No, but it must, like its peers in other states, be "capable of operating in compliance with applicable traffic and motor vehicle laws of this state."

Does anyone test for that? Apparently not under the statute, which has been in effect since Sept. 1, 2017. Other than some normal requirements, such as insurance, that even the most lenient state laws, regulations, or executive orders mandate, that is it. You are good to go to put that AV out on the road without even a wave from a state driving exam employee.

One thing this lenient law does require is a "recording device," defined elsewhere (at §547.615), as a device that records speed, direction, location, steering performance, seat belt use, and brake performance, though there is no requirement that the recording device record for any minimum amount of time prior to or following an incident. The owner "may" inform the state DOT that the vehicle is an AV; I'm curious why the word "may" was chosen.

Not just a welcome mat


The Texas statute is just one part of a strategy that is working to lure autonomous vehicle testing and pilot players to the Lone Star state. Texas also, according to one article in Automotive News, has cities that are coordinating together "to attract pilot projects." The article quotes at length from Tom Bamonte, senior manager for automated vehicles at the North Central Texas Council of Governments.
Texas is developing its own "full package" to draw developers: supportive local governments, an eager private sector, an engaged public and top-tier universities.
"The purpose of these pilot programs and experimentations is to kind of figure out transportation for the rest of the century," Bamonte said. "Responsible risk-taking is encouraged and rewarded. We're willing to venture into the unknown."

O-HI-O to AVs


It's headings like that which show why I'm not in advertising.

Ohio's governor, John Kasich, has issued two AV-related executive orders, one allowing AV testing  and one promoting his state for AVs and likewise creating a pathway for his state to promote AVs, which establishes DriveOhio as the "Statewide Center for Smart Mobility." (I am still waiting for the governor or state legislature that dares to name a center for dumb mobility.)

Not a get-out-of-jail-free card


Gov. Kasich is not giving the free pass that fellow Gov. Ducey gave for Arizona. He is making sure that each AV has a (perhaps not unique) licensed human driver monitoring its operation, who will personally report any collisions that occur while the AV is in operation, and be "an employee, contractor, or agent of the company testing autonomous vehicles or is faculty, staff, or a student of a college or university and is actively involved in a partnership with that entity."

Does an AV system or vehicle need to pass a test in Ohio? Nope, but the owner must register with DriveOhio, basically the implementing arm of the other AV-related executive order; disclose the name and contact information for any person who will be monitoring an AV from outside the vehicle - so not the names and contact information of backup drivers who are present in the AVs; and alert the municipalities where the AVs will be testing.

So, Ohio wants to be a leader, but it's a shy state, really, and how do I know this? The executive order, like a concerned parent, wants information and coordination with authorities.
Whenever a company plans on testing without an operator in the vehicle, the company must first inform DriveOhio of the routes or areas where the company will perform such testing and the designated operators that will be monitoring each vehicle. Additionally, where testing without an operator in the vehicle occurs within the jurisdiction and authority of a municipality, the company and DriveOhio will coordinate on providing notification to relevant municipalities where the company will perform such testing.

Not without permission


Ohio municipalities must work with the state before being permitted to host AV testing. I don't know whether there's partisan power dynamics behind that requirement or plain old state-versus-cities tension, but this constitutes a hurdle nonetheless. In any case, the state-level DriveOhio is clearly in the okay-pun-intended driver's seat.
Municipalities that enter into agreements with DriveOhio will be specifically designated by DriveOhio as partners in the Ohio Autonomous Vehicle Pilot Program. DriveOhio will work with and assist each participating municipality in creating an inventory of unique testing attributes (e.g., two-lane or four-lane road; flat or hilly; urban or suburban; roundabouts or intersections) as they pertain to testing autonomous vehicles. DriveOhio will then publish the partner municipality's unique testing attributes to potential industry partners and work to connect the municipality with those industry partners. 
Kasich also retains for himself the authority to halt testing upon "clear evidence" that a particular technology is unsafe and to demand proof of compliance, to DriveOhio's satisfaction, with the executive order before allowing testing to resume - thus attempting to avoid the PR pickle in which Gov. Ducey found himself with THE Uber crash.

DriveOhio, according to the Smart Mobility executive order, is an entity within ODOT (the Ohio Department of Transportation) established to coordinate with stakeholders, including entities within ODOT, and to establish working groups with industry players and others on such pertinent matters as data, security, infrastructure, policy and regulation, telecommunications, vehicle deployment, and, essentially public relations and education. Privacy is not explicitly mentioned.

Not really; please read the actual text


Articles appeared that Kasich was opening up AV testing on on any public road in Ohio. While technically true in the sense that any road could be approved as a testing site, the executive order places much authority in the state;  at the very least the executive order requires AV industry players to jump through some hoops, and it also sets up a government infrastructure for coordination among different state agencies, levels of government, and with companies and academia.

DriveOhio is starting with plans for highway testing and high hopes of first-mile/last-mile connections, though if that pertains to Ohio's relatively poor transit, I would be a bit skeptical on that score. It is probably referring to single-occupancy-vehicle, plain ordinary car commuting.

Friday, May 25, 2018

In the Weeds on NTSB Uber Report and House Hearing

What I Learned This Week


We may be a society of social media images, tweets, and sound bytes BUT there is much to be learned when you get into the weeds of something that most people, even professionals, do not have time for. On today's menu is the NTSB preliminary report on THE Uber crash and the Congressional hearing about insurance and business models for autonomous vehicles (AVs).

Drumroll please for the preliminary - meaning "don't quote us quite yet" - NTSB report on THE Uber crash that killed Elaine Herzberg in Tempe, AZ., on Sunday, Mar. 18, 2018.

As background, let us remember that Arizona Gov. Doug Ducey signed an executive order in August 2015 putting out the welcome mat for driverless vehicles to operate in the hot and sunny state without a person present, though with a licensed driver, either physically present or remotely able to take over operation (though, to be fair, that latter part was not explicitly stated).  THE Uber crash could have occurred elsewhere, but Gov. Ducey was the unlucky AV proponent for whom the fates aligned to get mud on his face for pushing a developing technology, failing to provide oversight, and shouting out loud about getting out of the way of the inherently innovative private sector, and, in particular, a company such as Uber, which has made a name for itself by harassing women and treating laws and regulations as pesky and irrelevant. Gov. Ducey thus somewhat arbitrarily received the punishment of media attention for being the governor of the state where the first pedestrian - meaning innocent person who did not assume the risk of engaging with what was said to be an AV - was killed by a technology that was supposed to see and brake for people.

Well, turns out, and I would bet the Governor and others, including me, were not quite aware,  the automated operating system responsible for hitting and killing Ms. Elaine Herzberg was not quite autonomous. That technology was unable to operate the vehicle without human assistance. In fact, the car was outfitted with a system that was more auto assist, similar to the Tesla Autopilot system, than AV. But let's allow the National Transportation Safety Board (NTSB) preliminary report to speak for itself.

As one twitter person said, and I forget who, NTSB employs the rather outdated word "accident" instead of "crash," thus undermining the hard work of many transportation writers and professionals to acknowledge that roads designed for speed and lack of pedestrian access are inherently and foreseeably dangerous places where crashes will occur.

Key quotes
The vehicle was factory equipped with several advanced driver assistance functions by Volvo Cars, the original manufacturer. The systems included a collision avoidance function with automatic emergency braking, known as City Safety, as well as functions for detecting driver alertness and road sign information. All these Volvo functions are disabled when the test vehicle is operated in computer control but are operational when the vehicle is operated in manual control. ...
As the vehicle and pedestrian paths converged, the self-driving system software classified the pedestrian as an unknown object, as a vehicle, and then as a bicycle with varying expectations of future travel path. At 1.3 seconds before impact, the self-driving system determined that an emergency braking maneuver was needed to mitigate a collision (see figure 2). 2 According to Uber, emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior. The vehicle operator is relied on to intervene and take action. The system is not designed to alert the operator.  ...
The inward-facing video shows the vehicle operator glancing down toward the center of the vehicle several times before the crash. In a postcrash interview with NTSB investigators, the vehicle operator stated that she had been monitoring the self-driving system interface. The operator further stated that although her personal and business phones were in the vehicle, neither was in use until after the crash, when she called 911. The NTSB continues to gather information on the Uber self-driving system, the vehicle interface, and the driver’s personal and business cell phones. 
Those quotes do not make me feel better, rather I feel like the Governor dropped the ball and Uber basically lied to the people of Arizona as well as the broader public and maybe even the driver/operators - who are now, by the way, out of their jobs - about what kind of vehicle was actually being operated on public roads.

NTSB does not address the inequitable and unsafe situation of Ms. Herzberg, who, like people all across America every day, walked across a road without benefit of a stop sign or traffic signal. Instead NTSB leaves for others to consider the prioritization of motor vehicles above other road users and the dangerous design of roads where 100-plus pound people walk and two-ton machines speed.

House hearing shows lots of bipartisan and public, private consensus and concern

Looking for a House of Representatives subcommittee hearing that carefully considers the future, displays bipartisan respect, and demonstrates concerns that cross not only the aisle between Democrats and Republicans, but also between public interest organizations and private companies? Look no further than this week's Housing and Insurance Subcommittee Hearing Entitled “TheImpact of Autonomous Vehicles on the Future of Insurance.” If you are interested in this topic, the approximately one-hour hearing is fascinating. (Don't be put off that the video says it is approximately two hours. The first hour is dead air and the actual start at about one hour begins with apology for the delay.)

Presiding was Wisconsin Congressman Sean Duffy, Chairman of the Financial Services Subcommittee on Housing and Insurance. He is a Republican from a rural district, but, like many in his historically progressive state, Rep. Duffy clearly sees the future and the significant role that regulation will play. He even said right out during the hearing that most of his staff doesn't even own a car and that the shared mobility/transit lifestyle is the wave of the future.

Highlights taken from my twitter coverage during my day-late viewing of the video:
One congressman suggested federal regulation of insurance and declared truth that ridehailing will control vehicle market when AVs come - greatly changing insurance industry. 
Insurance companies continue to back state regulation insurance business. They are accustomed to that. 
House hearing on AV insurance not mentioning transit or AV shuttles, how these are already on roads. Talking as much about partial automation as complete automation. Much on data needed.

Wow moment at 1 hr, 28 min into House hearing. @StateFarm insurance rep tells how tech, auto companies are resisting even talk of states requiring AVs with event data recorders (EDRs).
There was lots more, with the Congressional questioners, the insurance industry representatives, and the lone representative of the world of safety public interest advocates concurring about the necessary role of insurers and the changes inherent in combining operation of the vehicle with the vehicle itself. Like much of the public and media reports, there was much conflation of partial and full AV technology.

And here's another twitter tidbit, this one demonstrating my shock about the NTSB preliminary Uber report: OMG, NTSB prelim rpt says Uber was testing equivalent of Tesla autopilot, calling it full AV (lulling human driver/backup into complacency?) and killing an innocent pedestrian on road ≠ #completestreets. Don't blame the pedestrian.