Automated Driving: Who Should Regulate What?

November 1, 2017

Amanda Essex and Ben Husch

The message from Transportation Secretary Elaine Chao was bold and sweeping:

“Our country is on the verge of one of the most exciting and important innovations in transportation history — the development of automated driving systems.” Secretary Chao’s statement prefaced the National Highway Traffic Safety Administration’s (NHTSA) highly-anticipated new guidance for autonomous-vehicle development called “Automated Driving Systems: A Vision for Safety 2.0.”

As with most expansive new technological developments, governments at all levels are exploring the implications of autonomous technology to determine whether regulation is needed — and if so, the appropriate nature and scope of such oversight.

Individual states also are taking steps to better understand autonomous technology so that their regulatory efforts can strike a balance between supporting innovation and ensuring public safety.

Traditionally, the authority to regulate vehicle operation has rested with the states. The federal government, particularly NHTSA, is tasked with regulating motor vehicle safety, which includes the design, construction and performance of the vehicle. States, meanwhile, retain the authority to regulate driver education and training, traffic laws and regulations, vehicle registration and driver licensing, insurance and liability, law-enforcement and emergency response and safety inspections.

States first with AV guidelines

In 2011, Nevada was the first state to authorize the operation of autonomous vehicles on public roads. As of September 2017, 20 other states and Washington D.C. have passed legislation related to autonomous vehicles. Additionally, governors in Arizona, Delaware, Massachusetts, Washington and Wisconsin have issued executive orders related to autonomous vehicles.

At least eight states and Washington, D.C. have passed legislation dealing with autonomous-vehicle testing. It is important that individual states have the authority to determine the appropriate guidelines for vehicle testing within their territorial boundaries.

Many states have defined terms in statute to develop a foundation to build upon when legislating. Some of the terms states have defined include some variation on “autonomous vehicle” and “automated driving system.”

States also have worked to determine who or what should be deemed the “operator” of an autonomous vehicle. In most instances, they have determined that the operator is the person that causes the automated driving system to engage — regardless of whether that operator is physically present in the vehicle. States including Colorado, Florida and Michigan have made it clear in legislation that a human operator does not need to be in the vehicle.

Autonomous and connected technology for freight transportation can allow trucks to travel in a platoon, with multiple trucks traveling at coordinated speeds, generating fuel savings and cost efficiencies. However, most states have laws specifying safe following distance for all vehicles, so at least nine states have passed legislation to modify existing following-distance laws to exempt commercial-vehicle platooning.

Is the federal role being redefined?

New federal regulatory developments recently surfaced, including passage of the SELF DRIVE Act by the U.S. House of Representatives in early September; a month later, the Senate reportedly was in the advanced stages of passing a similar bill.

The SELF DRIVE Act proposes to expand sole federal jurisdiction beyond the traditional role of motor vehicle safety to encompass motor vehicle operations. Historically, states have been responsible for assessing the competency of the motor vehicle operator (i.e. driver licensing) — but the SELF DRIVE Act would prohibit states from regulating the “operator” of a highly-automated vehicle.

The bill provides updates on how the federal government will provide exemptions from certain safety standards for those entities seeking to introduce autonomous vehicles. Current exemptions from safety standards are limited to 2,500 per year; the SELF DRIVE Act would gradually raise this to 100,000 vehicles.

Finally, the bill establishes a highly-automated vehicle advisory council to help guide and provide recommendations to the U.S. DOT. Although no specific members are included in the legislation, the bill notes that states are among possible members.

Concurrent with those Congressional actions was the federal guidance from “Automated Driving Systems: A Vision for Safety 2.0,” which NHTSA released in early September and built on the agency’s initial 2016 guidance. It reinforces the voluntary nature of the guidelines — and does not come with a compliance requirement or enforcement mechanism.

The guidance attempts to provide best practices for legislatures, incorporating common safety-related components and elements regarding autonomous technology that states should consider incorporating into legislation. Importantly, “A Vision for Safety 2.0” also includes the U.S. DOT’s interpretation of federal and state roles and provides best practices for highway-safety officials.

Unfortunately, the guidance wishes to limit states to regulating only human motor vehicle operators, not all operators — although it remains unclear how NHTSA determined it would be appropriate for states to be limited in this way.

Amanda Essex and Ben Husch are employees of The National Conference of State Legislatures (NCSL), a bipartisan organiza- tion serving all 50 state legislatures and the District of Columbia and the territories, which closely monitors the development of state policy in the realm of autonomous vehicles. NCSL also provides a legislative database, updated weekly, that tracks autonomous-vehicle legislation introduced in every state.

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