Autonomous Vehicles: Current Federal and State Regulatory Responsibilities

Autonomous vehicle technology has become increasingly sophisticated as the number of companies in the field has grown markedly. Companies such as BMW, Ford, and Volvo have started planning for fully autonomous vehicles, and Google has continued testing its own self-driving cars in Silicon Valley. Recently, Uber introduced a fleet of self-driving taxis in Pittsburgh and announced that its self-driving truck had completed its first delivery. Furthermore, many people already own Tesla vehicles that, while not fully autonomous, have an “Autopilot” feature that incorporates a certain degree of self-driving capability. Owing to the rapid technological growth in this area, there is an ever-greater need for regulatory guidance.

Over the past few years, several states have begun developing initial drafts of regulatory regimes for autonomous cars, but car manufacturers have pushed back on certain policies. Several commenters in the legal community, including STLR last year, have suggested the possibility of a federal authority that would prescribe a basic level of safety for autonomous cars but allow state governments to expand on that foundation with their own statutes.

A variant of this vision materialized in late September when the National Highway Traffic Safety Administration (NHTSA), a federal regulatory agency that was established to improve vehicle and highway safety, issued its initial policy guidelines for autonomous vehicles.[1] The guidelines included a framework for federal and state regulation of semi-autonomous and fully autonomous vehicles[2] and a 15-step safety self-assessment for manufacturers to submit to the NHTSA before releasing their autonomous cars to the public.[3]

The guidelines raise multiple legal questions. Prime among the issues that require resolution are the distinction between federal and state regulatory authority and how the governing regimes will be able to respond to the quickly evolving technological advances in the field.

The NHTSA has clearly divided the regulatory responsibilities between federal and state governments. According to the guidelines, the federal government is responsible for regulating autonomous vehicles and equipment, while the states’ responsibilities include regulating the driver and most other aspects of autonomous vehicle operation.[4] In addition, the NHTSA encourages state governments to develop rules that are sufficiently compatible with those of other states to avoid a “patchwork of inconsistent [s]tate laws,” a predicament that the NHTSA suggests could potentially hamper innovation and the distribution of safety-enhancing technologies.[5]

However, since autonomous vehicle technology is a rapidly developing field, the two sets of regulatory responsibilities may not be so discrete. There must be some fluidity and responsiveness at both the federal and state levels to accommodate new technological developments and the potential overlap in responsibilities. Furthermore, several experts have expressed concern that if either the government, on either the federal or state level, is too restrictive or cautious, it could slow innovation.

In particular, because of the fast growth of autonomous vehicle innovation, both federal and state governments will need to consider how to make frequent amendments to any autonomous vehicle policies they enact. To reduce the potential for human harm, policymakers will likely need to assess the technology continuously, otherwise there may be a risk that the technological advances will outstrip the legislation. To this end, the NHTSA suggests that states identify lead administrative agencies specifically responsible for autonomous vehicles.[6] Indeed, dedicated state regulatory agencies, unlike state legislators, may be more likely to have the expertise and resources to research new technology rapidly, suggest regulations and policy amendments, and interact effectively with federal agencies when their responsibilities overlap.

This appears to be the position in California where the state legislature accorded to the Department of Motor Vehicles (DMV), an administrative agency, the power to create and enforce autonomous vehicle regulations. A little more than a week after the NHTSA released its federal guidelines, the California DMV issued a revised draft of its autonomous car regulations that adhered closely to several parts of the guidelines. It is not surprising that California was one of the first states to release revised draft regulations, as it is one of the epicenters of autonomous car manufacturing and ownership. Moreover, a little less than a year ago, California released an initial draft of its autonomous car regulations, but car manufacturers rejected several rules as being too restrictive and potentially obstructive to the advance of technology. Thus, state officials, such as the DMV’s director welcomed the NHTSA’s suggestions. Although some manufacturers still object to several parts of the revised California regulations, the DMV is willing to consider public feedback prior to creating a final version for adoption.

Ultimately, the NHTSA guidelines are simply that – non-binding initial guidelines designed to offer suggestions to manufacturers and states – and not bright-line rules. It will be interesting to see whether other states choose to give their DMVs regulatory power with respect to autonomous vehicles like California or create a separate regulatory framework entirely.

 

[1] Nat’l Highway Traffic Safety Admin., Federal Automated Vehicles Policy (Sept. 20, 2016).

[2] Id. at 15.

[3] Id. at 37.

[4] Id. at 38.

[5] Id. at 37.

[6] Id. at 40.

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