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. 

Way too long blog post #1 - US

You spend a week away and tons of autonomous vehicle (AV) stories come out, by which I exclude the "here's how the world will change, IMHO" pieces and the "world will end with AV transportation" stuff. My favorites of those genres are the "we'll all be having sex in AVs" and the "we'll all be nauseous with carsickness in AVs," which, if you consider those together for a second, is not an attractive combination.

I will only mention actual news.

United States

Still waiting - We are sitting by our laptops and phones in anticipation of the next iteration of the NHTSA AV guidance, due in July. I personally expect the guidance to be released after mid-July or, perhaps, I'm just hoping not to sit inside on July 4th reading it. I think it will continue along the trajectory of the "let's get out of the way of private sector innovation" 2.0 guidance released last time around. This is not to judge Sec. Chao's USDOT in particular because the Obama Administration took pretty much the same position.

Minor revision - Partial AV technology is revisited by SAE. The standard AV taxonomy is reconsidered oh so slightly by clarifying what SAE is referring to in its six levels of vehicle automation - from 0 to 5. Here's the heart of the brief document:

The levels of driving automation are defined by reference to the specific role played by each of the three primary actors in performance of the DDT [dynamic driving task] and/or DDT fallback. “Role” in this context refers to the expected role of a given primary actor, based on the design of the driving automation system in question and not necessarily to the actual performance of a given primary actor. For example, a driver who fails to monitor the roadway during engagement of a level 1 adaptive cruise control (ACC) system still has the role of driver, even while s/he is neglecting it. 

Active safety systems, such as electronic stability control and automated emergency braking, and certain types of driver assistance systems, such as lane keeping assistance, are excluded from the scope of this driving automation taxonomy because they do not perform part or all of the DDT on a sustained basis and, rather, merely provide momentary intervention during potentially hazardous situations. Due to the momentary nature of the actions of active safety systems, their intervention does not change or eliminate the role of the driver in performing part or all of the DDT, and thus are not considered to be driving automation.

Startup boost - May Mobility is getting a boost from an auto supplier company named Magna. Looks like pilots with May Mobility technology will be coming down the pike.

Senators hear both sides of debate - The June 13 hearing of the Senate Environment and Public Works (like roads) Committee featured witnesses on both sides of the AV START Act debate, meaning those favoring more versus less regulation and control over AVs. A stark comparison can be made, for example, between the testimony of Shailen P. Bhatt, President and CEO of ITS America (the former Colorado Secretary of Transportation who allowed the spectacle of the staged AV truck delivery of Coors beer), who recommended that tech and auto companies get free reign, and the testimony of Shaun Kildare, Director of Research at Advocates for Highway and Auto Safety, who pointed out how untested AVs are and how we don't maintain roads now, so how can we expect anything different with roads full of connected vehicle technology. Apologies for the awful run-on sentence.

Is concern in the Senate part of the reason for the birth of the Partnership for Transportation Innovation and Opportunity (PTIO)? Though PTIO is touted as a labor-focused enterprise to deal with upcoming loss of jobs, the initial descriptions - here's the website - show a concerted effort to deal with public relations problems that the AV industry has been and will encounter. PTIO includes some big players - Lyft, Uber, Waymo, FedEx, Ford, Toyota, Daimler, and the American Trucking Associations. Interesting that none of the cute AV shuttle companies are in the group. Probably have not been asked to join the team. Right now, it looks like PTIO will only have a presence in DC.

Pittsburgh mayor is pissed - Love this because Mayor Peduto is fighting the battle for every city in the country to control its streets and not be completed preempted by sometimes faraway and antagonistic state capitals. So what is Peduto angry about? The state transportation department of Pennsylvania, PennDOT, will be meeting separately with each of the major AV players in the state - meaning Pittsburgh, where they are all testing and developing technology - instead of hosting a public  meeting. Basically, the people of Pittsburgh, whose streets are the testing ground, and Mayor Peduto have been locked out of the process.

At first, after the Uber crash in Arizona, PennDOT appeared to be changing course and steering toward a California-like regulatory/voluntary approach. Peduto seemed to be on board or, at least, ready to talk. But then, like many matches made through dating apps, radio silence. This whole debacle demonstrates that inclusion and taking the time to invest stakeholders (such a DC word), such as major cities, works far better than effectively saying "screw you, not interested in your input." In an instantly viral world, PennDOT should be careful; Mayor Peduto is a charming and passionate adversary if that is what the agency turns him into.

Commercial interruption for Waymo video. Arizona riders love Waymo AVs.

Wicked* AVs in Beantown - Watch out Jamaica Plain, Beacon Hill, Roxbury, and Alston: Every Boston neighborhood could soon see AVs zipping around. Boston is now permitting AVs to be tested throughout the city. So far, that means nuTonomy, which has been testing for a long time at the seaport. nuTonomy is beaming, stating the company is:

[P]roud to be the first and only company authorized to operate autonomous vehicles on public roads citywide in Boston. Being recognized by the City for our exceptional safety record is an important milestone for the entire nuTonomy and Aptiv team.  

My message to nuTonomy is to watch out. Those Boston drivers can be aggressive; as a pedestrian, I used to wait for three cars to go through the intersection as the light changed before I felt safe to walk.

*By the way, translate the word "wicked," when used in Boston (or anywhere in the Red Sox Nation states of New England) as "fabulous."

Wicked all over Massachusetts - So far, the states that have passed AV laws have either preempted their municipalities out of any say-so for control of where AVs may test or the state laws call for onerous requirements, hoops that would have to jumped through with each municipality. The latter demonstrate part of the reason that a state like Arizona has attracted testing. It's easier to operate when there is one state rule.

Massachusetts has possibly arrived at a beautiful angle of repose for balancing state-city relationships in relation to AV testing. "the Massachusetts Department of Transportation and 14 towns and cities in the Greater Boston area signed a Memorandum of Understanding that will open up their roads to autonomous vehicle testing." Massachusetts, unlike some other states with councils established to study AV testing, continued to meet even after testing commenced in the state. Usually those councils precede and end with a report.

According to an article from a Worcester news source:

The new MOU streamlines and standardizes the process for companies seeking to test Autonomous Vehicles on Massachusetts roadways. Following the signing of this MOU, MassDOT and the participating communities will finalize a universal application for companies to use when seeking to test Autonomous Vehicles and the participating municipalities will identify locations and roadways suitable for Autonomous Vehicle testing. 

The municipalities signing the MOU today include Arlington, Boston, Braintree, Brookline, Cambridge, Chelsea, Malden, Medford, Melrose, Newton, Revere, Somerville, Weymouth, Winthrop, and Worcester. In addition, the Department of Conservation and Recreation is joining the MOU in order to make Commonwealth-owned parkways available for the testing of Autonomous Vehicles.

Basically, this area covers the Boston T and commuter-rail universe. Nice.

Nebraska slows down - Despite a lenient, come-on-in-to-test new law and despite plans for testing on public roads in Lincoln, Nebraska will not be seeing AVs too soon on public roads. No reports are explaining the details of why an ambitious pilot for testing in Lincoln has slowed way down, but now the word is that the University of Nebraska will host a pilot on the private roadway of the campus.

Officials in Lincoln had initially planned to launch a driverless shuttle service to carry passengers between downtown Lincoln, the Haymarket District and the University of Nebraska-Lincoln’s main campus, but a city spokeswoman said the project was delayed and won’t arrive in Lincoln for at least another few weeks. City officials now expect to run smaller-scale tests on the University of Nebraska-Lincoln’s Innovation Campus to work out any possible kinks.

Not the Lincoln in Brooklyn* - BUT Lincoln, NE won a grant from Bloomberg Philanthropies to fund an AV shuttle pilot. The mayor has declared, "Lincoln is seeking to become the first city in the United States to offer an on demand autonomous shuttle service for public transportation." A Navya shuttle will be used.

*In Brooklyn, NY, there is Lincoln High School, Lincoln Gardens cooperative apartment building community, and Lincoln Garden Cleaners. All of you alumni of P.S. 209 and Avenue Z Jewish Center (plus the million nearby churches) know what I'm talking about. And tons of famous Lincoln alumni, including Mel Brooks, Arthur Miller, Neil Sedaka, and Stephan Marbury.

Back to Nebraska, the law is lenient for AVs. Neb. Revised Staututes from 60-3301 to 60-3311 are the pertinent state code sections; 60-3308 is the preemption provision.

Even Toledo - The Toledo in Ohio (not Spain) has a plan for AVs; the "[u]se of smaller, autonomous vehicles is a key element of MoveToledo, a strategic plan TARTA [Toledo Area Regional Transit Authority]." Last week,  TARTA's general manager "announced his agency has received a $1.8 million federal grant to develop an experimental automated public transit route. The three-year pilot, Mr. Gee said, most likely will use small vehicles similar to a 15-passenger, electric shuttle." The pilot is scheduled to be on the street by summer of next year. Details have yet to be determined and these AV transit pilots take a while to arrange due to the programming of the vehicles and the need for accessibility, which is an odd add-on for foreign manufacturers.

Cross-border cooperation - On the state/province level, there is collaboration on AV planning. This is in the Pacific Northwest and cross-border counterparts in Canada. The states of Oregon and  Washington, and the province of British Columbia have set up an AV working group called the Automated, Connected, Electric, and Shared (ACES) Northwest Network, an organization focused on moving people and goods throughout the Puget Sound. ACES is not an official government endeavor for either the American or the Canadian participants, but, according to it press release, will include visionaries, researchers and other experts. (I have the same instinctive response to the word "visionaries" that I have to the word "passion," which is that these words are being employed awkwardly outside of their central zones of application.)