The Race to Regulate Autonomous Vehicles is On
While the potential benefits of automated vehicles are receiving well-deserved attention, there is significant uncertainty as to what the regulatory framework will look like for this exciting technology — particularly from an operational and safety standpoint.
All eyes are on the National Highway Safety Administration as it holds public hearings on developing operational guidelines for the safe deployment of automated vehicles. As we reported in a recent BB&K Legal Alert, the anticipated designs for fully autonomous vehicles do not fit neatly into the existing Federal Motor Vehicles Safety Standards. One major safety issue that regulators are carefully considering is whether to require someone physically in the driver’s seat as vehicles are tested and operated.
NHTSA has stated it also anticipates releasing model policies that can be adopted by states and local governments concerning the operation of AV’s on streets and highways. However, some states and local governments are not waiting for such guidance and moving ahead now, seeing an economic opportunity to encourage testing and development in their jurisdictions. One example is a proposedbill moving through the Tennessee Legislature that would make the state the first to codify definitions for autonomous vehicle use. Here is a summary of interesting components from Tennessee SB 1561, with a comparison to California AB 2866, which is pending in the California Legislature:
- Autonomous System: Similar to California’s proposed law, an “autonomous system” is defined as a “system that enables the operation of a motor vehicle without the active physical control of, or monitoring by, a human operator.” Both bills provide for the possibility of operation without a human driver subject to the satisfaction of to-be-determined safety regulations. A recent amendment to the California legislation adds that an autonomous vehicle operated without a driver must ensure an “operator…is capable of taking immediate control of the vehicle…”
- User Tax: The Tennessee bill proposes a use tax on autonomous vehicles based on miles traveled. No such specific tax is included in the proposed California bill, but the ability for the state to adopt fees related to operation is provided. This is creative and forward-thinking on Tennessee’s part as it considers potential revenue needs for any new infrastructure, or the necessity to maintain existing roads so that autonomous vehicles are not stalled by nuisances like potholes.
- Privacy: Under the Tennessee bill, a manufacturer is required to provide a written disclosure to an autonomous vehicle purchaser describing the information that will be collected by the autonomous system and any potential use of that information by the manufacturer or a third party. The issue of privacy is obviously very important to legislators. The California language only requires disclosure of what information is collected.
- Fleets: With the Tennessee bill, autonomous fleets are allowed so long as the State has certified the provider. Again, this is progressive thinking and anticipating the likely commercial use of automation by companies like Amazon, Uber or Lyft.
Planning for and encouraging the smart development and integration of this exciting technology can lead to economic opportunities for local governments through public-private partnerships and federal pilot project grant opportunities. Accordingly, it is important for states and local governments to continue to monitor what is happening in Washington, D.C. to ensure they have a voice in the regulatory process. Actively monitoring and participating in any rulemaking process is important since local governments will need to live in harmony with this new technology and may need federal assistance in procuring infrastructure to support the safe operation of autonomous vehicles.