The Legislative and Regulatory Landscape of Autonomous Vehicles

Posted on by Justin Lauria-Banta

As car manufacturers and technology companies forge ahead with their plans to implement autonomous driving technology, it is important they consider the legislative and regulatory landscape. These entities are in uncertain territory because the current regulatory structure does not closely align with autonomous driving.1 On the federal level, the National Highway Traffic Safety Administration (NHTSA) regulates the vehicle itself, through standards for airbags, seat belts, crumple zones etc.2 Autonomous vehicle (“AV”) technology fits into both of these spheres, making regulation within the current regulatory structure more difficult. AVs will be required to conform to certain motor vehicle equipment standards as well as standards regarding how their operation. For example, one can envision regulators requiring AVs to have a certain number of cameras or that they use LIDAR rather than RADAR.3 On the state level, AV’s will require changes to regulations regarding licensing, traffic laws, and insurance. For example, states will have to decide how heavily to regulate AVs while they are still being tested.

As entities move ahead with plans to put AVs on the roads, states have begun passing legislation to regulate their use.4 The states’ approaches span the spectrum of potential regulatory restrictions. Arizona, for example, does not impose any restrictions on self-driving vehicles, while New York requires that they follow an approved route with a police escort.5 However, this patchwork set of regulations is unlikely to be sufficient as AVs become more prevalent. Vehicles often cross state lines, and as such conflicting regulations will stifle innovation and slow the introduction of AV technology.6

Fortunately, Congress recognized the potential negative implications of forfeiting the regulatory field to the states and decided to act. On September 6, the House of Representatives passed the SELF DRIVE Act in order “to ensure the safe and innovative development, testing, and deployment of self-driving cars.”7 Some of the ways it accomplishes this are:

  • Clarifying the NHTSA’s role in the regulation of automated vehicles and preempts state laws.8
  • Directing the Secretary of Transportation to “issue a final rule requiring the submission of safety assessment certifications regarding how safety is being addressed by each entity developing a highly automated vehicle or automated driving system.”9
  • Requiring manufacturers to develop a cybersecurity plan.10
  • Directing the Secretary of Transportation to “establish in the National Highway Traffic Safety Administration a Highly Automated Advisory Council.”11 The purpose of the Council will be to gather information, develop technical advice, and present best practices regarding: (1) advancing mobility access for the disabled community and for senior citizens; (2) cybersecurity; (3) the development of a framework that allows manufacturers to share with each other and the NHTSA information about the deployment of vehicles on public streets; (4) labor and employment issues; (5) environmental impacts; (6) consumer privacy and security information; (7) and cabin safety for passengers.12
  • Requiring manufacturers to develop privacy plans regarding the collection, use, and sharing of information about vehicle owners or occupants.13

As of September 27, 2017, the Senate has yet to release its legislative text. However, there are indications of bipartisan support for legislation. In June 2017, a bipartisan group of senators released principles for legislation on self-driving vehicles.14 These principles include prioritizing safety, promoting continued innovation and reducing existing roadblocks, remaining tech-neutral, reinforcing separate federal and state roles, strengthening cybersecurity, and educating the public to encourage responsible adoption of self-driving vehicles.15 The most recent sign of progress from the Senate was a hearing on September 13 to “examine the benefits of automated truck safety technology.”16

Despite the bipartisan consensus for the legislation, not all stakeholders are enthusiastic about the SELF DRIVE Act. On September 5, the National Governors Association (“NGA”) sent a letter to Congress outlining their concerns. The NGA specifes two key issues: (1) the expansion of federal preemption, and (2) state and federal government cooperation. The NGA is concerned that the bill will “significantly expand federal preemption of states by moving beyond the traditional definition of motor vehicle safety to encroach vehicle operation currently under the states’ purview.”17 They argue the bill contradicts itself because, on one hand, the bill is a “clear signal that the federal government will take on the role of being the sole regulator of vehicle operations,” but, on the other hand, states that “‘nothing in this subsection may be construed to prohibit a State or political subdivision of a State from maintaining, enforcing, prescribing, or continuing in effect any law or regulating regarding registration [or] licensing.’”18 The NGA further asks that the House clarify and reaffirm the traditional federal and state roles when it comes to vehicle safety standards and safety of vehicle operations.19 As to the second issue, the NGA stresses that state and federal government cooperation will be instrumental as AV policy is implemented.20 In this vein, they “request explicit state governmental representation on the proposed Highly Autonomous Vehicle Advisory Council, rather than being grouped as part of ‘State and local authorities.’”21

To further complicate the current state of affairs, the Department of Transportation released on September 12 its revised guidelines on automated driving systems.22 The updated policy framework replaces the Federal Automated Vehicle Policy released in 2016 under the Obama Administration.23

Section 1 offers voluntary guidance to the automotive industry as it considers and designs best practices for the testing and deployment of Automated Driving Systems (“ADS”).24 The guidelines prioritize twelve safety design elements, including cybersecurity, human machine interface, crashworthiness, consumer education and training, and post-crash ADS behavior.25 Although voluntary, the guidelines also encourage “entities . . . to publicly disclose Voluntary Safety Self-Assessments of their systems in order to demonstrate their varied approaches to achieving safety.”26 The document also addresses the federal and state regulatory framework.27

Section 2 is comprised of best practices for legislatures implementing regulations surrounding ADSs. The purpose is to “assist States in developing ADS laws, if desired, and creating consistency in ADS regulation across the country.” As mentioned above, stakeholders in the industry are worried that conflicting regulations in the states will stifle innovation. The NHTSA states that “[p]ublic comments to NHTSA suggest that these proposals present several disparate approaches for adding and amending State authority over ADSs . . . some state officials have asked NHTSA to provide guidance (and eventually regulations) that would support a more national approach to testing and deploying ADSs.”28 In order to help facilitate uniformity, the NHTSA recommends the following safety related practices for state legislatures: (1) “[p]rovide a technology-neutral environment”29; (2) “[p]rovide licensing and registration procedures”30; (3) “[p]rovide reporting and communication methods for Public Safety Officials”31; and (4) “[r]eview traffic laws and regulations that may serve as barriers to operation of ADSs”32)

In conclusion, the regulatory and legislative landscape for autonomous vehicles is complex due to the state-federal regulatory structure. Thankfully, there seems to be progress on the legislative as well as the executive front. Though some stakeholders are upset about the SELF DRIVE Act’s potential to preempt state legislation, the Act would provide entities confidence to move forward with their AV plans. In the event that the legislation stalls in the Senate, the voluntary guidance issued by the NHTSA should help resolve some of the issues presented by conflicting state laws and regulations.

 

  1. Tina Bellon, Congress is Trying to Quickly a Pass a Self-Driving Car Law ­– and States are Freaking Out, Business Insider (Sept. 15, 2017, 12:13 PM), http://www.businessinsider.com/r-us-push-for-self-driving-law-exposes-regulatory-divide-2017-9.))

    States regulate the operation of vehicles through licensing, insurance, and traffic laws. ((Aarian Marshall, Congress Finally Gets Serious About Regulating Self-Driving Cars, Wired, July 19, 2017, 2:44 PM), https://www.wired.com/story/congress-autonomous-self-driving-car-regulations/. ↩

  2. Id. ↩

  3. Michael Barnard, Tesla & Google Disagree About LIDAR ­– Which is Right?, Clean Technica (July 29, 2016), https://cleantechnica.com/2016/07/29/tesla-google-disagree-lidar-right/. (“LIDAR ­— a surveying technology that measures distance by illuminating a target with a laser light. LIDAR is an acronym of Light Detection and Ranging . . . Radar — an object-detection system that uses radio waves to determine the range, angle, or velocity of objects.” ↩

  4. Autonomous Vehicles – Self-Driving Vehicles Enacted Legislation, NCSL (Sept. 21, 2017), http://www.ncsl.org/research/transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.aspx. ↩

  5. Tina Bellon, Autonomous Vehicle Regulation Highlights Federal vs. State Divide, Insurance Journal (Sept. 19, 2017), http://www.insurancejournal.com/news/national/2017/09/19/464721.htm. ↩

  6. See Marshall, supra note 2. ↩

  7. Press Release, House Passes Bipartisan Legislation Paving the Way for Self-Driving Cars on America’s Roads, Energy and Commerce Committee (Sept. 6, 2017),  https://energycommerce.house.gov/news/house-passes-bipartisan-legislation-paving-way-self-driving-cars-americas-roads/.)) According to the House Energy and Commerce Committee, the bill improves the NHTSA’s “ability to adapt federal safety standards to this emerging technology, and clarifies federal and state roles with respect to self-driving cars.” ((Id. ↩

  8. Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act of 2017, H.R. 3388, 115th Cong. (as passed by House, Sept. 6, 2017) (“No State or political subdivision of a State may maintain, enforce, prescribe, or continue in effect any law or regulation regarding the design, construction . . . or components of automated driving systems unless such law or regulation is identical to a standard prescribed under this chapter.”). ↩

  9. Id. ↩

  10. Id. ↩

  11. Id. ↩

  12. Id. ↩

  13. Id. ↩

  14. Press Release, U.S. Senate Committee on Commerce, Science, and Transportation, Senators Release Bipartisan Principles for Self-Driving Vehicles Legislation (June 13, 2017), https://www.commerce.senate.gov/public/index.cfm/2017/6/enators-release-bipartisan-principles-for-self-driving-vehicles-legislation. ↩

  15. Id. ↩

  16. Transportation Innovation: Automated Trucks and Our Nation’s Highways, U.S. Senate Committee on Commerce, Science, & Transportation (Sept. 13, 2017), https://www.commerce.senate.gov/public/index.cfm/hearings?ID=5A988178-CACC-4ADF-8EAC-784DE626B89F. ↩

  17. Letter from Scott D. Pattison, Executive Director, National Governors Association, William T. Pound, Executive Director, National Conference of State Legislatures, Bud Wright, Executive Director, American Association of State Highway and Transportation Officials, Anne Ferro, President, American Association of Motor Vehicle Administrators, and Jonathan Adkins, Executive Director, Governors Highway Safety Association, to The Honorable Paul Ryan, Speaker, U.S. House of Representatives, The Honorable Nancy Pelosi, Ranking Member, U.S. House of Representatives, The Honorable Greg Walden, Chairman, Energy and Commerce Committee, and The Honorable Frank Pallone, Ranking Member, Energy and Commerce Committee (Sept. 5, 2017), https://www.nga.org/cms/nga-letters/self-drive-act-hr-3388. ↩

  18. Id. ↩

  19. Id. ↩

  20. Id. ↩

  21. Id. ↩

  22. Colin Dwyer, Department of Transportation Rolls Out New Guidelines for Self-Driving Cars, NPR (Sept. 12, 2017, 9:19 PM), http://www.npr.org/sections/thetwo-way/2017/09/12/550533833/department-of-transportation-rolls-out-new-guidelines-for-self-driving-cars. ↩

  23. U.S. Dep’t. of Transp., Automated Driving Systems 2.0 A Vision for Safety, (Sept. 2017), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf. ↩

  24. Id. at ii. ↩

  25. Id. ↩

  26. Id. ↩

  27. Id. at 3 (“Several States have sought clarification of NHTSA’s enforcement authority with respect to ADSs. As DOT is asking states to maintain delineation of Federal and State Regulatory authority, NHTSA understands the States are looking for reassurance that the Federal Government has tools to keep their roadways safe. NHTSA has broad enforcement authority to address existing and new automotive technologies and equipment. The Agency is commanded by Congress to protect the safety of the driving public against unreasonable risks of harm that may arise because of the design, construction, or performance of a motor vehicle . . . NHTSA’s enforcement authority concerning safety-related defects . . . applies equally to current and emerging ADSs.”). ↩

  28. Id. at 19. ↩

  29. Id. at 2 (“no data suggests that experience in vehicle manufacturing is an indicator of the ability to safely test or deploy vehicle technology. All entities that meet Federal and State law prerequisites for testing or deployment should have the ability to operate in the state”). ↩

  30. Id. ↩

  31. Id. ↩

  32. Id. (“For example, some States require a human operator to have one hand on the steering wheel at all times – a law that would pose a barrier to Level 3 through Level 5 ADSs. ↩

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