As Federal Autonomous Vehicle Policy is Issued, States Poised to Move Quickly

The National Highway Traffic Safety Administration (NHTSA) this week issued long-awaited guidance delineating responsibilities of the federal and state governments when it comes to policies to pave the way for self-driving cars. This came as the Obama administration signaled that while strong safety oversight will be a hallmark of policies governing testing and deployment, the federal government will encourage innovation in the industry in recognition of the vehicles’ potential to save time, money and lives. Response to the guidance appeared to be largely positive and with the ink not even dry on the document, a number of states appeared poised to move quickly on new autonomous vehicle legislation in the days and months ahead.

What the Federal Automated Vehicles Policy Says

The Federal Automated Vehicles Policy is a 116-page document that includes sections on vehicle performance guidance for automated vehicles, model state policy, NHTSA’s current regulatory tools and modern regulatory tools.

The Vehicle Performance Guidance section, aimed at the industry itself, outlines best practices for the safe pre-deployment design, development and testing of highly automated vehicles prior to commercial sale or operation on public roads. With the guidance, the U.S. Department of Transportation establishes its expectations of industry by providing reasonable practices and procedures manufacturers, suppliers and other entities should follow in the short term to test and deploy the vehicles. The policy asks automakers and tech companies to be able to prove that their semiautonomous and autonomous vehicles could meet a 15-point list of safety expectations before taking to the roads. They’re asked to document how they’re addressing issues like privacy, digital security, human-machine interface and ethical considerations—like whether to program a vehicle to hit another vehicle or a pedestrian in the event of a crash.

The Model State Policy section seeks to reinforce that the traditional role of the states in areas like vehicle licensing and registration, traffic laws and enforcement, and motor vehicle insurance and liability regimes will continue when it comes to autonomous vehicle policy. NHTSA meanwhile will be responsible for federal motor vehicle safety standards, recalls and other enforcement measures, educating the public on safety and writing performance guidelines for industry.

NHTSA notes that it may be necessary for states to clarify the definition of “driver” in regulatory language, which could entail combing through multitudes of policies and state codes. The agency has already clarified for federal purposes that a car’s software can be considered a “driver.”

The insurance and liability issues could prove thorny for states as well. While some automakers have said they’ll take responsibility for any traffic crashes caused by their software, others have not.

NHTSA notes they will continue to exercise their existing regulatory authority through interpretations, exemptions, notice-and-comment rulemaking and enforcement authority. The agency can also identify safety defects and recall vehicles or equipment that pose an unreasonable risk to safety.

But the agency also indicates that existing regulatory tools may not be sufficient to ensure highly automated vehicles are introduced safely and to realize the full promise of the new technologies, so additional regulatory tools may be needed to quickly address the latest developments. Congress could be asked to consider new oversight powers for USDOT to approve vehicle designs before they come to market, give cease-and-desist orders in cases of imminent danger or require software changes for vehicles already on the road, for example.

Next up for the policy is a 60-day public comment period (read the process for submission here), which could yield significant changes. The policy is expected to be supplemented by a related report from the American Association of Motor Vehicle Administrators later this year.

But as autonomous vehicle legal expert Bryant Walker Smith noted this week, none of this is intended to provide the final word on these issues by any means. “I would also expect that this guidance will be the starting point for more thoughtful legislative discussions—not only at the state level but also, for the first time, at the federal level,” he wrote in a blog post. “It will be interesting to see which developers carry the DOT's implicit requests for new authorities and resources to Congress. The model state policy does not bind states, and some may well decide not to follow it. The performance guidance likewise does not bind developers of automated driving systems, but I would expect few of these developers to deviate from it. This soft guidance could become even more influential if states incorporate it in legislation, if … (NHTSA) considers it in the course of exemption or enforcement decisions, or if courts look to it to understand how a reasonable developer should act. In other words, DOT is establishing expectations.”

DOT officials also made it clear this week they plan to update these guidelines annually.

Furthermore, the guidelines call for states not to just dive in head first but to take a coordinated approach by identifying a lead agency on automated driving regulation and setting up a task force with representatives from offices of information technology, transportation, law enforcement and other relevant areas.

So while the NHTSA guidance has been greatly anticipated, it only kicks off a series of what are likely to be lengthy and complex conversations that will evolve in the years to come just as the technologies do that they will address.

Further Reading

Reaction to the Federal Automated Vehicles Policy

A variety of interested parties weighed in this week with their thoughts on the new NHTSA guidance, including:

  • John Bozzella, President and CEO, Global Automakers: “A consistent national approach for this burgeoning technology is critically important as automated vehicles will advance vehicle safety, mobility and sustainability. Global Automakers and its members remain committed to working with federal, state, and local governments to ensure there is a flexible, consistent framework for automated vehicle technologies so consumers can fully realize the benefits as quickly as possible.”
  • Jackie Gillan, President, Advocates for Highway and Auto Safety: “The advent of driverless cars holds great promise to advance safety.  However, federal oversight, minimum performance requirements, rigorous testing as well as transparent and verified data are essential in the development process.  Consumers cannot be ‘human guinea pigs’ in this experiment and the federal government cannot be a passive spectator.”
  • Auto Alliance: “As automakers continue to pioneer these technologies in concert with hundreds of global technology partners, the Alliance urges policymakers at all levels to proceed cautiously in creating new frameworks that could delay the introduction of these technologies. Establishing premature certification requirements, test procedures and performance criteria, dictating technology-specific approaches, or adopting a patchwork of ill-timed competing state rules would only inhibit vehicle innovation and limit these important life-saving safety improvements.”
  • David Strickland, Spokesman/General Counsel, Self-Driving Coalition for Safer Streets (and former NHTSA Administrator): “We support guidance that provides for the standardization of self-driving policies across all 50 states, incentivizes innovation, supports rapid testing and deployment in the real world. State and local governments also have complementary responsibilities and should work with the federal government to achieve and maintain our status as world leaders in innovation. With the guidance now publicly available, we encourage state policymakers to engage with our Coalition to develop the appropriate policy solutions, and we stand ready to provide support and expertise for both technological and policy questions.”
  • Marta Tellado, President & CEO, Consumer Reports: “This new policy comes with a lot of bark, but not enough bite. While these technologies have the potential to save lives, there must be strong federal standards to protect all drivers. We can’t just leave it to the states to do the hard work of deciding whether to let a self-driving car on public roads.”

Further Reading

States Poised to Move Forward

So which states are most likely to move forward quickly with autonomous vehicle legislation in the wake of the NHTSA guidance? I write about several of them in our new Capitol Research brief this month. Here are a couple of additional updates as well:

  • A package of bills to pave the way for operation of autonomous vehicles on Michigan roads cleared a key state House committee this week. A House floor vote was expected perhaps as early as this week, The Detroit News reported. The state Senate approved different versions of the legislation earlier this month.
  • State lawmakers in Pennsylvania said this week they will work to align in-the-works autonomous vehicle legislation with the federal guidelines issued Tuesday, the Tribune-Review reported. The lawmakers expect the legislature to act on the bill before the end of the year.

As I also note in the brief, many expect the guidance to open the floodgates to legislation in a variety of states during the 2017 legislative sessions.

Further Reading

Autonomous Vehicles on the Agenda for CSG 2016 National Conference

Autonomous vehicles will be on the agenda at the CSG 2016 National Conference in Colonial Williamsburg. On Friday, December 9, the CSG Transportation & Infrastructure Public Policy Committee will convene for a session entitled “Realizing the Future: Changes for Transportation on the Horizon.” Among the speakers will be Chris Hendrickson, Professor Emeritus in Civil and Environmental Engineering at Carnegie Mellon University in Pittsburgh and director of the university’s Traffic 21 Institute. In 2014, Hendrickson was the lead author on “Connected and Autonomous Vehicles: 2040 Vision,” a report prepared for the Pennsylvania Department of Transportation that assessed the implications of the vehicles on the management and operation of the state’s transportation system including in areas like design and investment decisions, workforce training and driver licensing. We’ll also get a briefing on what the NHTSA guidance means for states and hear from the automotive industry about all the innovations that are on the way. Also on the agenda for the transportation committee: Virginia Transportation Secretary Aubrey Layne will talk about how his state improved the processes by which it selects transportation projects and chooses which ones to tackle as public-private partnerships. And we’ll hear about what a new President and Congress could mean for transportation in 2017 and beyond. You can check out the preliminary agenda for the full CSG National Conference here and register for the meeting here.

Transportation for America’s Capital Ideas II

Autonomous vehicles and other emerging technologies bringing rapid changes to communities also will be among the issues discussed during Capital Ideas II, a two-day conference the organization Transportation for America will host in Sacramento November 16-17. CSG is pleased to be a promotional partner for the event, which will offer attendees a highly interactive curriculum of model state legislation, campaign tactics, innovative policies and peer-to-peer collaboration designed to help them advance successful state transportation policy and funding proposals. Just in time to get a jump on the 2017 state legislative sessions, Capital Ideas II (no affiliation with CSG’s magazine Capitol Ideas) will also examine how state departments of transportation are instituting reforms and how California and other states are leading the way in policy innovation. The latest tentative agenda for the conference is available on the T4America website. Registration is available here. For an idea of what the first Capital Ideas was like in 2014, you can read my coverage of the event here, here and here