AV States, Cities, and the Feds

Cities, states, and the federal government are all moving ahead to provide a governing framework, to thoughtfully consider, and/or to plan for automated vehicles (AVs). Although there is broad bipartisan agreement in Congress, safety and preemption concerns raised in 2019 prevented the passage of national legislation. 

This is not necessarily a negative development because we are witnessing what US Supreme Court Justice Brandeis once called a laboratory of democracy with various state law approaches to AVs. (New State Ice Co. v. Liebmann, 285 U.S. 262, at 311, Brandeis, J., dissenting (1932)). The Brandeis quote exactly describes the value of what states are engaging in today to learn about and plan for AVs.

There must be power in the States and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. … To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. 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.

(Quoting 285 U.S. 311.)

More than half of US states are looking at AVs. Many aspects of US law that we take for granted began with state law experimentation, including the 2008 healthcare law, the Affordable Care Act, which was modeled on a program in Massachusetts; and workers’ compensation, first adopted in New York State. Cities throughout the country are also actively planning for AVs, some in concert with their state transportation agencies. The federal government, through the US Department of Transportation (USDOT), is also proceeding and consulting with stakeholders.

State Law Approaches - The Petri Dishes in the Laboratory of Democracy

While 42 states have in place some AV-related legal rule – be it executive order, regulation, and/or law – this number is somewhat misleading. A majority of states do not have any rule governing actual AVs driving down public roads in normal traffic. What states have mostly put in place are legal provisions:

·       Establishing an advisory committee or mandating a study of particular AV operational, business, insurance, and/or passenger transportation issues; 

·       Allowing for testing and/or pilots in limited situations and requiring collaboration with specific state agencies and/or cities where testing is requested; and/or

·       Enabling a specific, significant change to motor vehicle regulations – one which has garnered practically zero attention in the media – the permission for platooning on high-speed roads.

Platooning is generally a priority for the freight industry and platooning authorization in state laws would allow trucks with certain technology to follow a lead vehicle – whether with a human driver or an AV – at a much closer distance than is permitted for conventional vehicles.

Testing and pilots of AV ridehailing and microtransit shuttles are mostly happening in states with very little regulation and AV-friendly weather, such as Texas, Florida, Arizona, and Georgia. The exceptions are states with a substantial tech or auto industry presence. These include:

·       California, with Silicon Valley and San Francisco as the nation’s most important tech region;

·       Pennsylvania, specifically the City of Pittsburgh, due to the activities of Carnegie Melon University and the companies using technology that have grown out of CMU activities or from CMU professors or graduates; and

·       Michigan, the state with headquarters of the most prominent US auto companies.

Cities Take the Spotlight

In just the last couple of years, cities large and small have gone from ignoring the prospect of AVs to embracing and planning for them. The best examples are in states where there are good city-state partnerships, such as Massachusetts and Connecticut. Texas is also an interesting case because suburban municipalities are embracing AV and microtransit pilots, while the state has removed any roadblocks to AV pilots, including transporting people on public roads. The situation in Arizona is similar, but in that state testing and pilots have been limited to conventional cars or minivans outfitted with AV technology.

A recent report from the National League of Cities (NLC) provides a quick summary of AV developments from the perspective of cities and states. Autonomous Vehicle Pilots Across America examines the ways that states are creating frameworks for AV operations, pilots, and further study. City strategies that use whatever state frameworks have been established provide an interesting read about the spectrum of approaches and partnerships with states, with the private sector, and with universities.

State and local agency counterparts will participate in the roll out of AVs as they are being tested, piloted, and as they begin regular operations. Additional agency actors in AV-related legal rules and operations include planning departments, departments of public works, and departments of motor vehicles.

Federal Regulatory Players 

The USDOT and its surface transportation modal and safety agencies – FTA, FHWA, and NHTSA – all have a role to play in AV regulation and implementation, but so do some federal, state, and local agencies outside of the USDOT. On the national level, these include the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of Labor (DOL). These agencies work in the spheres of privacy, business regulation, consumer protection, cybersecurity, labor, and law enforcement.

Federal action is expected from NHTSA and the Federal Motor Carrier Safety Administration (FMCSA), which are planning to publish proposals for in 2019 regarding AV safety, testing, and deployment. These two USDOT modal administrations were mentioned in the Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions – Fall 2018, 83 Fed. Reg. 57803, Nov. 16, 2018. NHTSA is seeking to reduce regulatory barriers and coordinate efforts relating to technology and innovative vehicle design. Ibid. at 57913-14. FMCSA, which regulates aspects of some transit systems that operate interstate (as well as traditional private bus service) will “continue to coordinate efforts on the development of autonomous vehicle technologies and review existing regulations to identify changes that might be needed.” Ibid. at 57913.

Otherwise for 2019?

Any more crashes involving auto-assist technology - especially any with serious injury or worse to individuals outside of the auto-assist vehicle - will prompt investigative reporting, videos, and news coverage that will sway federal legislators. Federal legislation is fertile ground and there is a good possibility for a negotiated compromise for legislation that covers AV and auto-assist regulation.

That's it. I could be wrong. 

California Gets Into the Weeds, and Other States Continue Down Other Paths

Waymo has applied to the state of California for a permit to test completely autonomous vehicles (AV) - as in no human operator in the vehicle - on the state's public roads. So far, Waymo has no peers in applying for this top tier California AV operation permit. A post from Teslarati also reports that a second, unnamed, company applied, but that the application was incomplete. That makes one company out of 52 that already have obtained permission to test AVs with a driver. Consumer Watchdog is pressing the state to make the application process open to the public. This group has been the primary national voice for slowing down state and national permission to test and operate AVs and for restrictions.

California's new regulatory regime provides for testing and deployment of full-scale AV fleet operations of taxipods or shuttles zipping around its cities and suburbs or replacing rural vanpools. California is asking quite a bit of manufacturers that wish to test without human drivers, leveraging its geography as home base to Silicon Valley and a robust AV industry. I am not certain that a state or country without such a strong AV presence would be able to attract applicants for a permit otherwise.

Starts at level 3

Stays the same: For level 3 and above, California is allowing companies to continue AV testing with a driver, just continuing the regulatory regime of the past few years. Unlike many states, California requires:

A manufacturer conducting testing of autonomous vehicles on public roads shall maintain a training program for its autonomous vehicle test drivers and shall provide the department with a course outline and description of the autonomous vehicle test driver training program. 

This training will include"practical experience in recovering from hazardous driving scenarios." Not a job for me.

Completely human driverless testing: New Section 227.38 conceives of the empty AV and the AV with only passengers on public roads, but only for testing of a level 4 or 5 AV. Lots more information is required of the AV manufacturer for this higher-level permit. Among other requirements, the state will want to know where and when this testing is happening.

Remote operation capability required: Section 227.38 only permits AV operation without a human driver ready to take over IF there is a human somewhere who is tasked to remotely take over operation of the vehicle in case of emergency or failure.

A two -way communication link is required and the remote human must "continuously monitor" the vehicle. The applicant must provide a "description of how the manufacturer will monitor the communication link" of each of its AVs. Other requirements include, but are not limited to, a law enforcement interaction plan. I am uncertain whether this human, resembling the security guard who stares at security camera monitors for hours at a time, will be able to avoid distraction, boredom, and drowsiness.

Navya AV shuttle on Apr. 25 at University of Wisconsin-Madison campus.

There is quite a bit of information that must be included in a mandatory law enforcement plan so that law enforcement will be able to detect an AV, will be able to communicate with its remote operator, and will have the capability to safely remove such a vehicle from a roadway.

Oh, and the remote operators must be trained.

Not all about safety: First, presume no privacy in the information about your whereabouts, what you are doing in the vehicle, and what, if anything, you say. That's my advice. California is acting as if we are interested in the details. "The manufacturer shall disclose to any passenger in the vehicle that is not an employee, contractor, or designee of the manufacturer what personal information, if any, that may be collected about the passenger and how it will be used."

We'll all be clicking on I Agree to long privacy notices.

California continues to require collision and disengagement reports for all AVs.

The big kahuna - deployment: California has developed a separate application for the top tier of deployment of AVs. Remember that this includes level 3 vehicles that have backup drivers as well as AVs that can operate without a human operator on board.

California is requiring that AVs have event data recorders, which it calls an "autonomous technology data recorder," that are required to collect and store "autonomous technology sensor data for all vehicle functions that are controlled by the autonomous technology at least 30 seconds before a collision with another vehicle, person, or other object while the vehicle is operating in autonomous mode. The data captured and stored by the autonomous technology data recorder, in a read only format, must be capable of being accessed and retrieved by a commercially available tool."

Self-aware AVs only: 

Enthusiasm vs. prudence - prudence gets passing on the right in Uber/Tesla crash aftermath

Connecticut is on its way to implementing a law passed in 2018 that will only address a preliminary phase of AV testing and pilots. Towns and cities may apply to be testing areas, but only four will be selected. "Participating municipalities will have to enter into agreements with autonomous vehicle testers." Click here to view the requirements for city-corporate AV agreements and the application form for municipalities.

One report says that Stamford will be first to apply. No other cities or towns have been mentioned. My suggestion: AV shuttle for a New Haven pizza tour. Slices included.

There's a reason why New Hampshire is the Granite State. State legislators are reportedly resisting lobbying efforts to weaken its bill. These legislators are not quite ready for testing and full-scale deployment on any road at any time and with no conditions.

It is the conditions that are giving AV proponents cause for concern. "Test vehicles would have to be accompanied by escort vehicles, and the license could be revoked for violating the rules of the road." Other conditions include a larger bond than is usually required ($10 million instead of $5 million); notification to localities of where and when testing will occur; and law enforcement freedom to pull over an AV for vehicle code infractions.

Oh, and the bill, HB 314, requires:

Certification that, prior to testing on public roads, the autonomous vehicle has been tested under controlled conditions that simulate, as closely as practicable, the real world conditions that the autonomous vehicle will be subject to during testing.

No surprise that AV industry advocates are pushing for legislation that is more favorable for companies.

Nebraska puts out welcome mat

Nebraska just passed a very permissive law. Instead of passing its original bill, which provided for an AV pilot in Lincoln with four shuttle vehicles, the new law allows fully AVs to operate on public roads without a human driver present in the vehicle. The one unique aspect of Nebraska'a law is a concern about AV operations vis a vis railroad crossings.

The automated driving system feature, while engaged, shall be designed to operate within its operational design domain in compliance with the Nebraska Rules of the Road, including, but not limited to, safely negotiating railroad crossings, unless an exemption has been granted by the department. The department shall consult with the railroad companies operating in this state when considering an exemption that affects vehicle operations at railroad crossings.

Crashes must be reported. The law preempts local governments from imposing any requirements or restrictions. Nebraska seems to be giving a hell yes! green light to on-demand AV fleet operations, whether they be for ridehailing, transit, or any kind of microtransit.

More, but ...

There is more from Pennsylvania and Indiana, but this post is already way too long. Those will wait, though, like Lucy and Ethel on the speeded up chocolate factory assembly line, I don't have enough pockets or tabs to fit everything.