This past February - remember 2020 just before our lives were turned upside down? - I was too busy to write about the formal approval of a model AV statute for US states. The drafting and approval process took a few years and, for disclosure purposes, I participated in committee discussions, although only representatives of states were permitted to vote. Also participating, but not voting, were staff from the insurance industry, Uber, Waymo, and others.
If you please, skip past the digressions to the main point below. Actually, I am in a wordy writing mood and I don't feel like editing, so there's some digressions even once we arrive at the main discussion.
Digression #1: Where I was in February
At the time, I was the AV guru, not an official title, at the Community Transportation Association of America (CTAA), which effectively serves all of those places and populations that the large companies ignore; places with a low density of humans, low-income tending populations of older adults and people with disabilities, and those vast stretches of the US with not much, if any, public transportation.
Note to New Yorkers, who barely enjoy the quality of public transit available in other large international cities: CTAA focuses on communities and regions where catching a taxi, an Uber, or a bus, let alone a subway ride, would be fraught with difficulty, if possible at all. I would not count on much walkability either. You might also be hours from an airport or a hospital.
Digression #2: A little civics lesson before explaining what is a uniform law and who ever heard of the Uniform Law Commission?
To understand why uniform state laws are a positive, it's good to have some knowledge here about US history and the US Constitution, so I will give a totally unofficial and incomplete lesson for those unfamiliar with why progress can be so difficult to achieve across the US. Our Constitution is a document that, even with its amendments, sets up a government structure very unlike any centralized national system.
First, the Constitution, when it was drafted, was a nice piece of political philosophy, but it could not become the law of the land until enough states ratified it, which was by no means a done deal. Both proper advocacy - in the form of wonderful speeches, newspaper articles, and letters - as well as somewhat shady political wheeling and dealing, miraculously combined in favor of ratification in the early states to convene their own conventions, until ratification became a fait accompli. But this did not happen until a general agreement was reached that there would soon be 10 amendments included, known as the Bill of Rights. Most of these rights - to a jury trial, against unreasonable search and seizure, etc. - protect the individual against the government.
The Founding Fathers were quite paranoid about government overreach, sometimes more than about actually ensuring that the national government could accomplish what it needed to. The Bill of Rights and the limited powers given to Congress and the President are a testament to that skepticism of a strong national government. Many topics were basically left to the states.
On top of the suspicion of centralized power, there was fear of rule by urban majorities, sometimes known as mobs. Democracy was not the Founders' favorite form of government; they instead established a republic. There was also slavery and those seeking to protect that hideous practice. This is the time of compromises where rural states got equal power in the Senate and enslaved persons would be counted as 3/5 of a person, although they had zero votes and the votes of many of their descendants continue to be suppressed to this day.
Digression #3: The whole states vs. national government thing gets even more complicated - and not in a good way.
To add to the mess of a a national government working alongside however many state governments, currently counting in at 50, each state operates differently from its peers. Some states place more power in the governor, some in the legislature, some in the legislative leadership, some in the counties, some in the cities, some in bizarre commissions where some unelected person somehow develops outsized influence and keeps it for a long time. Some states have a government structure that works and there is collaboration and problem solving. Others do not. Passing over a state line can make all of the difference or it might not. Then there is DC and US territories, all adding a bit more variety to the mix. We won't digress further to go down that particular rabbit hole.
In terms of transportation, for the past 70 or so years there has been an understanding that the motor vehicle is the king among modes, that its dangerousness in terms of crashes and public health will be topics mostly avoided (except for the blip of the early NHTSA years), and that, in terms of funding, other modes will receive the crumbs. No national leader of either party has significantly deviated from this understanding because most voters and campaign donors have cars and mainly drive to get around. Or they are connected to the auto industry, which works hard to keep the understanding firmly in place.
So, enough already - get to the point
Arriving at the point - The Uniform Law Commission AV Model State Law
One path to a national law is Congress, but another is passage of separate state laws that all say the same thing, or nearly the same thing. That is where the Uniform Law Commission (ULC) comes in. I have explained its role before. It is quite unlikely that a uniform state law will end up being the way we regulate AVs or make any major changes to this realm of interstate commerce. For one thing, the car companies are comfortable working with Congress and that is the partner they would prefer to keep dancing with.
On the other hand, it is expected that registration, ownership, licensing, insuring, and perhaps setting standards for inspecting and maintaining AVs will be controlled at the state level. If nothing else, even if a uniform law never gets passed in the legislatures of the 50 states, DC, and assorted territories, the background consensus reached by the ULC drafters of the AV model law is a good read.
The Uniform Automated Operation of Vehicles Act (UAOVA)
The UAOVA only focuses on full automation where there is zero human operation of the vehicle. However, the UAOVA or its comments acknowledge vehicles that have all of the following capabilities:
- Complete automation;
- Driver assist capability;
- Remote operation; and
- On-board switch to select or toggle between complete automation or human driver operation.
As for a vehicle that allows for either human or fully automated operation, the UAOVA would only govern full automation capability or time periods when the vehicle is actually in fully automated operation. The UAOVA does conceive that a vehicle without automation could become an AV and that the AV would then be required to be registered as such.
The What the ULC AV model legislation does not cover:
- AV testing or pilots
- Remote operation of AVs
- Automated driver assistance systems
- AV planning
- Any human driver equipment or operation on board the vehicle
The UAOVA model legislation is more of an addition to a state motor vehicle code. By being agnostic as to modes and roadway design and speeds, it basically avoids and, therefore, perpetuates our current modal split and the inconvenient conundrum of road safety. One step at a time.
Slight digression: Inconsistent definitions
The UAOVA uses the term "automated vehicle" instead of "autonomous vehicle," which is unfortunate because the USDOT refers to "automated vehicle" as one that has any level of automation, even a low level, whereas the UAOVA uses the same term to mean a vehicle fully capable of driving itself without human assistance.
USDOT's definitions regarding AVs can be found in AV 3.0. AV 4.0 does not provide a glossary.
Automation: Use of electronic or mechanical devices to operate one or more functions of a vehicle without direct human input. Generally applies to all modes.
Automated Driving System (ADS): The hardware and software that are collectively capable of performing the entire Dynamic Driving Task on a sustained basis, regardless of whether it is limited to a specific operational design domain. This term is used specifically to describe a Level 3, 4, or 5 driving automation system. (SAE J3016)
Automated Vehicle: Any vehicle equipped with driving automation technologies (as defined in SAE J3016). This term can refer to a vehicle fitted with any form of driving automation. (SAE Level 1–5)
It is critical to be clear on the definitions because people who are well versed in this whole AV rabbit hole just may be using the same terms to mean entirely different things.
Who is driving?
What the UAOVA (sounds like a gynecological procedure, no?) answers the question of who/what is the responsible party when the software and hardware combination is driving rather than the human.
Under the act, a qualified entity declares to the state that it will be the legal driver for certain automated vehicles. Provided that it meets certain qualifications, this “automated driving provider” might be an automated driving system developer, a vehicle manufacturer, a component supplier, a data provider, a fleet operator, an insurer, an affiliated firm, or another kind of market participant that has yet to emerge. The automated driving provider is primarily defined not by a specific role in the stream of commerce but, rather, by a willingness to self-identify and an ability to meet the technical and legal requirements specified in the act.
... ... ...
The act uses the motor vehicle registration framework that already exists in states—and that already applies to both conventional and automated vehicles—to encourage automated driving providers to self-identify. Existing law generally requires the registration of a motor vehicle that is operated on a public road, and the vehicle’s owner or lessee typically obtains this registration. Under this act, however, an owner or lessee may register an automated vehicle only if an automated driving provider has designated that vehicle as an associated automated vehicle. If the automated vehicle is not “associated” in this way with an automated driving provider, then it may not be registered and therefore may not be operated on public roads. [Emphasis added.]
Associated?
To be clear, the AV registrant might not be the automated driving provider. The AV might be owned by an individual, but it's software updates and operation will be controlled by the entity that is recognized as the automated driving provider, an entity that must be "has designated that vehicle as an associated automated vehicle. If the automated vehicle is not “associated” in this way with an automated driving provider, then it may not be registered and therefore may not be operated on public roads."
Is this workable? 💁 It's confusing. I need a break.
Musical Intermission: A performance of Don Juan from Smokey Joe's Cafe. The song provides a very weak analogy about the availability of a technology tied to wealth. It's a good intro to the next section of this entirely too long blog post.
Humans - No license necessary
People with disabilities for whom driving is difficult or impossible, irresponsible teenagers out and about, older adults who don't want to or feel uncomfortable driving, parents who prefer to spend quality time with kids rather than focusing on the road, and people who would prefer to nap rather than drive will no longer be inconvenienced by the requirement to have a license or to have a licensed human behind the wheel - if there is even a steering wheel. The UAOVA does away with the requirement that a licensed human driver be present and ready to operate the vehicle. An AV would be permitted to be operated without human intervention.
Not so familiar way to get to Delaware?
The UAOVA seeks to build upon a familiar legal framework of registration. The question arises then of which state would a company prefer to be registered by? Will we have a Delaware equivalent for AVs, where the state with the most corporate-friendly standards registers the vast majority of AVs?
The UAOVA does suggest in its comments that "[i]ndividually or in concert, states may also wish to develop a system to track and sanction automated driving providers that is comparable to the one for human drivers." (Please note that in the US commercial vehicles are a whole different ball of wax and are regulated differently than car, taxi, or ridehailing vehicles.)
Why wouldn't a company choose one state with lax standards rather than registering in up to 50 separate state regimes and standards, not to mention DC and US territories, all with different standards? I am pretty sure that at least one state would volunteer to be the lax state; perhaps Nevada, Arizona, Texas, or Florida. Maybe Michigan.
Registration as an Enforcement Mechanism
Vehicle registration and inspection laws require that vehicles be in some minimal operable condition. There are also emission regulations that mandate performance standards. This could be a potent weapon for safety. Under the UAOVA, a state would have the authority to:
decline, suspend, revoke, or decline to renew the registration of an automated vehicle that is not: (1) an associated automated vehicle; (2) associated with an automated-driving provider recognized by [the relevant state agency]; (3) properly maintained; (4) lawfully insured; (5) compliant with a registration requirement; or (6) fit to be operated.
Who can be an automated-driving provider?
Three types of businesses are permitted to register vehicles as automated-driving providers:
- Traditional car companies;
- Companies that "have submitted to the United States National Highway Traffic Safety Administration a safety self-assessment or equivalent report for the automated-driving system as required or permitted by the United States National Highway Traffic Safety Administration;" or
- Companies that have "participated in a substantial manner in the development of an automated driving system."
No. 2 could become a gaping loophole, especially under the current NHTSA hands-off regime where voluntariness is the order of the day and companies submit glossy, ad-like self-assessments. Don't get me wrong, the provisions relating to automated-driving providers could have real teeth, but the type of tech-informed serious enforcement we are talking about is generally done at the federal level, with few exceptions. One has to ask whether a state such as California or New York would step up? Another question is whether the type of enforcement possible here to regulate automated-driving providers is better accomplished at the federal level?
I am not answering these questions because we have seen the last few years that Attorneys General of states can do a fabulous job of protecting ordinary citizens around the country. The idea that the responsibility and authority should only be vested in the executive branch of the federal government is putting all of one's eggs into one basket.
Associated vehicle of the automated-driving provider
Now we have an automated-driving provider, who effectively claims the "associated vehicle." "For the owner of an automated vehicle to register the vehicle, an automated driving provider must have designated that vehicle as an associated automated vehicle." In effect, the legal entity that must be approved to "drive" is the automated-driving provider. A comment within the UAOVA explains:
In other words: A human driver must obtain a license, whereas an automated driving provider must make a declaration. A human becomes a driver by driving a vehicle, whereas an automated driving provider becomes a driver by designating an associated automated vehicle that is then used under automated operation. Both conventional and automated vehicles are typically registered by their owners. The owner (or lessee) of a conventional vehicle may or may not be its driver, and the owner (or lessee) of an automated vehicle may or may not be its automated driving provider.
When the equipment is the driver and why that relates at all to the Citizens United Supreme Court decision
The UAOVA mandates the usual insofar as requiring equipment to be in operating condition, but for a conventional vehicle the driver is separate from the equipment - there is a human operator and a machine that he or she operates. Now the mandate of proper maintenance means that the elf inside the AV (like the elves inside my laptop) will not possibly fall asleep as the AV rides down the road. With current technology, that could mean a computerized "inspection" that occurs whenever the AV is turned on rather than an annual physical inspection. Could be does not mean will be.
Indeed the last section of the UAOVA provides that the automated driving provider "is responsible for a violation of [the state’s rules of the road] during automated operation of an associated automated vehicle." The state would have the express authority to fine an automated driving provider for violations, but the real enforcement mechanism - presuming that contracts retain these rights for passengers and even individual AV owners - could be lawsuits filed against automated driving providers following any crashes.
Don't count on that.
Minor digression (not an apology): Corporations in our current lobbying and campaign contribution system have outsized power. Individuals do not read through long contracts that divest them of their legal rights. You can be sure that automated driving providers will draft contracts that screw the rider, the owner, the lessee, or whatever other individual pays for or uses the AV. Unless we pass a constitutional amendment that reverses the Supreme Court decision in Citizens United and gets money either out of or reduces its role in politics, AV contracts will not protect the regular person.
This is not that corporations or their leaders are evil, it is that they are rational beings acting in a legal manner to reduce their liability and legal costs. In my opinion, as is pretty obvious, corporations are not people and they should not have the right to control the political system by donating tons of cash. The video is Senator Jon Tester's one-minute explanation of the issue.
We don't know
No one knows how AV regulation will play out or what will happen along the way to influence legislation at either the federal or state levels.
In the UAOVA comments, the drafters acknowledge that the Act could be used as a sharp enforcement mechanism or not.
[T]he automated driving provider is the legal driver ... and is therefore subject to corresponding sanctions under the state’s vehicle code. In other words, the automated driving provider should receive the speeding ticket when an associated automated vehicle under automated operation is caught speeding. At the same time, this section does not address the appropriate level of enforcement. It is expected that federal, state, and local authorities will continue to evaluate the role of various forms of automated enforcement (including self-reporting obligations) in improving road traffic safety.
Since the Uniform Law Commission's approval of the UAOVA in February no state has adopted it. IF you have read the entirety of this enormously long blog post, you either have insomnia or you remained interested. Congratulations and good luck with the sleeping thing.
