Autonomous Vehicle Updates from California, Congress and NHTSA

Tech Alert | April.11.2018

AV Update: New Autonomous Vehicle Regulations Gear Up in California while AV START Act Stalls in Congress

California: The California Department of Motor Vehicles has released final regulations governing the testing and deployment of SAE Level 4 and 5 vehicles on the Golden State's public roads. The regulations, products of a three-year rule-making process, are notable because they allow developers of highly automated technologies to test and deploy such vehicles without the presence of a human operator within. California is not the first state to allow operator-free testing and deployment, but it is home to the largest number of AV-related technology developers in the nation.

The new California regulations are broken into two large silos: testing rules and deployment rules. Some requirements related to, for instance, financial responsibility expectations, vehicle identification, and the development and distribution of law enforcement interaction plans, are common between the two. But, generally speaking, the deployment permit is more onerous. For firms intending to test or deploy in California, either permit application process should be undertaken well in advance of a target roll-out date.

As of April 2, 2018, the first day that permits issued under the authority of the new regulations were accessible, only one firm had applied for such a permit. It is unclear whether this lack of interest in the permits offered under these new regulations will persist. There may be general satisfaction with California's existing testing regulations, which require an operator present in the vehicle. Or, perhaps firms are finding testing and deployment opportunities in other jurisdictions more appealing.

Notably excluded from the new regulations is any provision for the testing or deployment of heavy trucks (10,001 pounds and over) equipped with highly automated technologies. The new regulations explicitly preclude such vehicles from their scope and, while the DMV has indicated that it will undertake rulemaking, it has given no indication of when it will begin that process. What's more, though some firms have operated highly automated heavy trucks on California's public roads in the past, the DMV's final statement of reasons, which were released along with the regulations, suggests that such operation is currently beyond the remit of state law.

AV START Act: Congressional efforts to enact comprehensive legislation to draw a clear distinction between state and federal spheres of responsibility for the regulation of autonomous vehicles have slowed. Senate Democrats have circulated two letters, one related to the safety of AVs and another in the wake of the fatal AV crash in Tempe, concerning the use of binding arbitration in the context of transportation services provided in AVs, which indicate that significant substantive differences of opinion exist about the bill's content.

As Congress returns from recess, with holds placed on the bill, it is unclear whether Senate leadership will designate the floor time necessary for the bill to pass this year. In the absence of Congressional action, the likelihood of further state-based legislative activity increases – which risks creating a patchwork of regulatory standards throughout the country.

NHTSA Administrator: Heidi King, most recently associate administrator of the National Highway Traffic Safety Administration, has been put forward by the Trump administration to oversee the nation's chief automobile safety regulator. King's ascent has been largely welcomed by industry, as she is seen as pro-AV. NHTSA, which last year released an update to the non-binding Federal Automated Vehicle Policy, is currently refining a further update titled "FAVP 3.0" to be released later this year.