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. 

Submit Your Comments - Early and Often (Long post)

The USDOT, through its administrative agencies of NHTSA, FTA and FHWA has announced requests for comments about how it will arrive at a world of autonomous vehicles (AVs), incorporating shared rides, and cybersecurity. I concentrated recently on FTA's STAR plan, but the USDOT has more in mind than transit and shared rides and labor issues.

FTA's two documents were published in the Federal Register on Jan. 16 and the comment deadline is March 2, 2018. FHWA and NHTSA's were published on Jan. 19 and the comment deadline is March 5, 2018.

US transportation agency acronym recap

By the way, FTA = Federal Transit Administration and FHWA = Federal Highway Administration. NHTSA, as the vast majority of you know, is the National Highway Transportation Safety Administration, which already has AV guidelines and which issues the US federal motor vehicle safety standards or FMVSS.

Important comment detail!
The USDOT agencies are requesting that comments "indicate the level(s) of automation impacted by the statute, regulation, or policy." Don't forget! You want your comments to be considered and taken seriously.

Documents published in the Federal Register

FHWA's published request for comments with a March 5, 2018 deadline:

Automated Driving Systems

FTA's published request for comments with March 2 deadline:

Removing Barriers to Transit Bus Automation

Research Program: Automated Transit Buses  

NHTSA published request for comments with a March 5, 2018 deadline:

Removing Regulatory Barriers for Vehicles With Automated Driving Systems

FTA research program request

Remember, FTA is not seeking comments pertaining to systems without an automated driving aspect (driver warnings and alerts), unless the system is evolving to include automation in the foreseeable future. So feel free to comment about AV ridehailing services - sans drivers or engineers - that have been recently announced by Uber, Lyft, Waymo and other companies that will begin in the next year or so.

The goal, from FTA's perspective is to "better inform FTA of existing transit bus automation technology, and to assist FTA in identifying potential areas of future research. ... Each response should indicate which level of automation the technology or process addresses. Inclusion of existing supplemental information is welcomed and encouraged. This supplemental information could include reports, presentations, specifications, or other documentation."

In case you were thinking of transit in terms of big, long buses, think again. FTA is redefining transit for an almost universal definition that includes different kinds of vehicles and anything from fixed route to mobility-on-demand (MOD) kinds of service. Bus = "defined broadly to consider a range of sizes, vehicle platforms and configurations, and passenger capacities, and could include both traditional and novel vehicle designs (full-size city buses, articulated buses, small shuttles, etc.). “Bus” includes bus rapid transit."

FTA removing barriers request

Again, Bus = "defined broadly to consider a range of sizes, vehicle platforms and configurations, and passenger capacities, and could include both traditional and novel vehicle designs (full-size city buses, articulated buses, small shuttles, etc.). “Bus” includes bus rapid transit."

This is a wide-ranging request for comments in that it seeks "public comment regarding current or potential regulatory or other policy barriers to the development, demonstration, deployment, and evaluation of automated transit buses and related technologies for" level 3-5 - fully AVs. Lots of folks are invited to express themselves, including "stakeholders, including the disability community, to better understand regulatory and policy barriers and challenges to development, demonstration, deployment, and evaluation of automation systems in the transit industry."

Chime in about statutory "regulatory, policy, or legislative challenges or barriers ... which may impede development, demonstration, deployment, or evaluation of automated transit buses."

Long post - here's an entertainment break

Watch the video about the Lyft/Aptiv "robotaxi" demonstration project that ferried hundreds during the CES conference earlier this month. It's going to continue in Las Vegas and be expanded to an - as yet - unnamed city. Not sure I want to replace those sweet, friendly Lyft drivers, but I am guilty of enjoying the low prices. Thank you venture capitalists for the nice subsidies. Could you expand that to public transportation?

Back to the long post -
If you ever want to cross a street again, comment!

FHWA published request for comments with a March 5, 2018 deadline:

Automated Driving Systems - FHWA's thoughts and questions will affect every person in the US, whether they drive or not. Anyone who crosses the street, gets on a bus, or takes Uber or Lyft exclusively will want to comment. Planners and anyone involved with equity and accessibility should comment. "FHWA seeks comments more broadly on planning, development, maintenance, and operations of the roadway infrastructure necessary for supporting ADS, including any information detailing the costs associated with implementation."

The question for FHWA regarding pedestrians, bikers, and transit users is how will the human roadway user safely travel when automated systems will be "driving" instead of other humans, with whom eye contact has been the system for knowing when to stop or walk across a driveway or cross a street when there is an oncoming vehicle. Will we need to carry or have embedded chips? There should be some signal on an AV, be it a car or a bus or something in between, to indicate to the walking or biking human that now is a time when it is safe or unsafe to cross a street.

Traffic signals unecessary for AVs, but for humans ...

AVs will not need traffic signals, but humans might prefer them to a Rome-like system where vehicles instantly stop and one feels as if one is putting one's life on the line by crossing the street. On the other hand, for smaller intersections, we could have a California-like situation everywhere so that even in the middle of Brooklyn, the pedestrian's foot in the roadway would be enough to signal an AV to stop. That one change could do a lot for mode equity.

In terms of equity for older adults, people with disabilities, and people with one-to-seven year olds, meaning those individuals need more time to cross a street than most traffic signals currently allow, AVs could present a vast improvement. They need freedom from right on red (the one way in which New York City is superior) and they need more pedestrian crossings, not just one every half mile or so.

Every half mile or so pedestrian leads to what I witnessed in Columbus, OH: An 80-year-old woman getting off a bus at a broken sidewalk and no pedestrian crossing; she crossed anyway at the six-lane road with cars moving along at about 45 miles per hour. That is not safe; it is not equity; it is a recipe for death and injury. But it happens frequently at bus stops and shopping centers and schools across the country.

Lane markings

Since FHWA is asking for comments, which I will interpret as an interest in my personal and professional opinion, one message must be clearly articulated and stated out loud: We cannot rely on lane markings for safe AV transportation. I do not know of any city or county that is uniformly or even mostly good about keeping those lane lines freshly painted. A few are not bad about keeping the roads well lit, but far, far from a majority. (As a New York City kid, I was shocked to see unlit roads when we went out to the "country" for vacations.)

AVs must be able to see which lane(s) is (are) for which direction without sensors that have to be maintained or markings that must be repainted frequently.

Words FHWA needs to hear

FHWA's request for comments does not include any of these words: Accessibility, pedestrian, walk (or variation thereof), bike (or variation thereof), equity, sidewalk, intersection, crossing, transit, wheelchair, blind, deaf, ... I could go on and on. People use our roadways to do things other than to drive and currently all of those people are second-class users of our transportation network. Let's make sure they can be safe and equal when the AV revolution comes instead of sliding down to third class and greater isolation and inequity.

FHWA needs to think not only about the roadway, but about all of the people who use it. Think of the five year old who foolishly runs into the street after a ball; think of the person who is blind; think of the old person pushing a shopping cart; think of the grad student riding a bike.

NHTSA focuses on safety standards

NHTSA published request for comments with a March 5, 2018 deadline:

Removing Regulatory Barriers for Vehicles With Automated Driving Systems - NHSTA is focusing on removing FMVSS that have to do with drivers, whether involving steering wheels, dashboards, or testing vehicles. On the other hand, NHTSA declares that it wishes to retain other safety standards so that - in my words - we don't throw the baby out with the bath water. "The existing FMVSS can be found in the Code of Federal Regulations at 49 CFR part 571. NHTSA has over 60 FMVSS today."

Opportunities for comments to suggest ways in which vehicles can become accessible for people with disabilities - Why not?

NHTSA states that the FMVSS will no longer have to assume the presence of a driver or even a passenger, therefore no longer needing displays or equipment that require a driver's attention. But if the person whose attention is needed, either when ordering, waiting for, or being present in the vehicle, has a disability - cognitive, visual, auditory - then this moment is the perfect time for NHTSA to think in terms of equity for all AV passengers and require accessible interfaces.

NHTSA asks, as one example, "Would occupants still need warning telltales and other displays to be viewable if they did not have any means of driving their vehicles?" If one's suggested answer is yes, then why not take this perfect moment of billion-dollar investments and a clean slate to require accessibility with those new interfaces?

In a catch-all invitation for comment, NHTSA poses the question:

There may be other existing performance requirements and test procedures that would fail to accommodate unconventional designs. If there are, the Agency will need to identify them and determine how the Agency should amend them in ways maintain the current level of effectiveness.

Why not now impose a physical accessibility requirement that allows for wheelchairs, double strollers, shopping carts, and luggage to be wheeled directly on to EVERY AV? Again, if we are investing and experimenting, why not require and figure out universal design?

Perhaps stretching the meaning of safety

I'll bet there is a good percentage of caretakers, people with disabilities, people with small children, and people who travel a lot who have fantasized about not having to awkwardly lift packages, bags, luggage, and children who rapidly gain weight. Think of all of the back conditions we could prevent all while serving people with disabilities. (When my older daughter was little, but getting too heavy to carry a lot, I would make sure to have a book with me whenever I drove because she would wake up and not go back to her nap if I lifted her out of the car. You see what I mean?)

I might be stretching NHTSA's mandate vis a vis the FMVSS: "[T]he FMVSS need to be “objective, practicable, and meet the need for safety" when initially issued and must remain so after being amended."Safety" being the operative word, but we should consider safety for everyone. Isn't preventing long-term injury of lifting kids, packages, and luggage part of safety? Isn't preventing the social isolation of persons with disabilities with few or no transportation options part of safety?

Maybe not, but whether it's via NHTSA, USDOT, or Congress, the current transportation system that blatantly discriminates against anyone who is unable to drive puts many of our colleagues, friends, and family members at a huge disadvantage.

Back to NHTSA's concerns

NHTSA is also rightfully interested in certification and testing, meaning a reliable and credible performance testing system for whatever AV equipment or software is produced. NHTSA is already pursuing this.

There are other mundane, but important, questions. Will passengers still have a way to turn on windshield wipers or lights? Will such options be needed or wanted? What about the option of stopping a vehicle? What about mirrors?

What about emergency controls - and making sure emergency controls are accessible? If we have regulators and legislators touting the freedom that AVs will provide for older adults and people with disabilities, then surely they must be provided with accessible emergency controls.

Modes between cars and transit - all of USDOT should pay attention

In the shared-use, slugging, ridehailing, microtransit world of strangers sharing rides and often (but not always) money being in some way exchanged,  NHTSA and FHWA have an obligation to acknowledge that the private car and van are being employed as a kind of public transportation. The safety of those occupants, and the accessibility of those vehicles, should be on FHWA's and NHTSA's radar as they ponder and handout research dollars to ensure a smooth and safe transition to AVs. Kudos to FTA for already making this transition and for studying and otherwise staying in the forefront regarding these changes.