Regulation of Self-Driving Cars Headed for the Fast Lane

By: Korey Clark

Development of autonomous, or self-driving, vehicle technologies by Google, Tesla Motors, and others has been progressing rapidly in recent years. But state efforts to regulate the testing and operation of self-driving cars on public roads have been moving at a more deliberate pace. Now the Obama administration wants to fast-track the regulatory process to get autonomous cars on the road more quickly.

GOOGLE HAS A FLEET OF SELF-DRIVING TEST VEHICLES with sensors that can “detect objects as far as two football fields away in all directions, including pedestrians, cyclists and vehicles—or even fluttering plastic shopping bags and rogue birds,” and software that can process all of that information, allowing the vehicles to “safely navigate the road without getting tired or distracted,” according to the website for the company’s Self-Driving Car Project.¹ Those vehicles have now logged over a million miles on freeways and streets in Mountain View, California, and Austin, Texas, and the Self-Driving Car Project—launched in 2009 and currently part of the X division of Alphabet, a holding company Google formed last year to separate its core search and advertising businesses from its more speculative ventures—could soon be spun off into its own division.

Google is far from the only participant in the emerging self-driving car industry, which the Boston Consulting Group estimates will grow to $42 billion by 2025 and $77 billion by 2035. Tesla’s Model S has an optional AutoPilot system that uses a “combination of cameras, radar, ultrasonic sensors and data to automatically steer down the highway, change lanes, and adjust speed in response to traffic,” according to that company’s website.² Numerous other automakers also offer or are working on semi-autonomous technologies that can intervene when, say, a driver starts to drift into another lane or gets too close to the vehicle ahead of them. And although Uber only launched its self-driving unit last year, it has tried to make up ground, according to The Verge, by luring engineers and executives away from Google Maps to staff its own map division, which will be critical for the success of its autonomous car system.³

State governments haven’t demonstrated the same level of urgency with regard to self-driving cars. Only six state legislatures have passed measures relating to such vehicles, while Governor Doug Ducey, (R) Arizona addressed them via executive order, according to the National Conference of State Legislatures (NCSL).⁴ NCSL and LexisNexis State Net data do indicate, however, that the number of states introducing autonomous vehicle-related bills has been ticking upward: six in 2009, nine in 2013, twelve in 2014, sixteen in 2015, and fifteen so far this year.

In 2012, California enacted SB 1298, requiring the state’s Department of Motor Vehicles to adopt regulations ensuring “the safe operation of autonomous vehicles on public roads.” The DMV split the development of those regulations into two phases: testing of autonomous vehicles and deployment of such vehicles to the general public. The testing regulations weren’t approved until May 2014, and a draft of the deployment regulations didn’t come until the end of last year.

What’s more, the deployment regulations take a very cautious approach. Among other things, they mandate third-party safety certification of autonomous vehicles; require vehicle manufacturers to initially obtain a three-year provisional deployment permit, allowing them to lease but not sell their vehicles to the general public and requiring them to report accidents involving those vehicles to the DMV; impose privacy and cybersecurity requirements; and allow autonomous vehicles to be operated on public roads only if a licensed driver is at the wheel, ready to take over if necessary.

That last provision was a big disappointment to Google, which has been focusing its efforts on a completely driverless car with no gas pedal, brake pedal, or even a steering wheel. The company says its testing shows humans aren’t a good backup for self-driving technology because when they get used to it, they stop paying attention to the road. The licensed driver requirement would also preclude the use of self-driving cars by those with disabilities who are dependent on others even for “simple errands,” Chris Urmson, director of Google’s Self Driving Car Project, wrote in a blog post after California’s draft deployment regulations were released. “This maintains the same old status quo and falls short on allowing this technology to reach its full potential, while excluding those who need to get around but cannot drive,” he wrote.⁵ Urmson added that Google would continue working with the DMV as it seeks feedback on its proposed rules, but the agency stated in its draft regulations that it would “address the unique safety, performance and equipment requirements associated with fully autonomous vehicles without the presence of a driver in subsequent regulatory packages.”

Steve Hill, director of the Governor’s Office of Economic Development in Nevada, the first state to allow the testing of self-driving cars, has expressed concern that state regulation of autonomous vehicles isn’t keeping pace with the industry. “The technology is really advancing faster than we had originally anticipated,” he told The New York Times. “I wouldn’t really say that Nevada, or really any place else, has really developed the policies that will be needed to facilitate the industry moving forward.”⁶ That assessment may be as applicable to cities as states. The Times reported that according to a study by the National League of Cities, only 6% of the nation’s most populous cities have taken autonomous vehicles into account in their long-term planning.

The Obama administration wants to change that. At the North American International Auto Show in Detroit in January, U.S. Department of Transportation (DOT) Secretary Anthony Foxx announced that President Obama’s 2017 budget proposal would allocate nearly $4 billion over the next decade for the testing and development of autonomous vehicle technology and that the DOT would be implementing several initiatives to speed up the adoption of that technology.

“In 2016, we are going to do everything we can to promote safe, smart and sustainable vehicles,” Foxx said, according to the Associated Press. “We are bullish on automated vehicles.” Spurred by the potential of self-driving cars to reduce traffic accidents—by 90%, according to a report last year from the consulting firm McKinsey & Company— cut greenhouse gas emissions, and improve Americans’ mobility, Foxx said the National Highway Traffic Safety Administration (NHTSA) would work with the industry, states, and other interested parties over the next six months “to develop guidance on the safe deployment and operation of autonomous vehicles” as well as “a model state policy on automated vehicles that offers a path to consistent national policy,” according to a DOT press release. Foxx also urged manufacturers of autonomous vehicles to request rule interpretations and exemptions from the NHTSA that “would ease development of new safety features,” and said the DOT and NHTSA would “ensure that fully autonomous vehicles, including those designed without a human driver in mind, are deployable in large numbers when they are demonstrated to provide an equivalent or higher level of safety than is now available.”

Wired reported that Foxx’s announcement marked a major shift in the federal government’s approach to auto regulation.⁷ Traditionally, it has waited for the industry to develop new technology and then, after studying that technology, created new rules to address it. But in an interview with National Public Radio last month, Foxx said that with self-driving cars, that process might take years, so the government is instead opting to learn about the technology as it develops through rule interpretations, such as its response to a request last year from BMW to confirm that the company’s self- parking system meets federal safety standards.

Wired also pointed out that Foxx’s plan to work with states and industry partners to create a model state policy on self-driving vehicles seeks to avoid a patchwork of state laws that would likely inhibit their development, while acknowledging that although the federal government regulates how cars are made and states regulate how they are operated on the road, autonomous vehicles “blur that distinction—how they drive is a direct result of how they’re made.”⁸ Foxx’s DOT and the NHTSA also appeared to be decidedly more bullish on self-driving technology—and driverless vehicles in particular—than California’s DMV. But California DMV spokeswoman Jessica Gonzalez said her agency’s wariness isn’t because it opposes the technology. “We’re definitely not against it,” she told Bloomberg Business. “We just need to make sure that it’s safe.”⁹ Foxx, meanwhile, told NPR that given where the technology is right now, requiring self-driving vehicles to have a licensed driver at the wheel as California’s deployment regulations propose is “definitely a good principle.”¹⁰ Evidence of that came last month when one of Google’s test vehicles was involved in a low-speed collision with a municipal bus, which the test car’s autonomous system had detected but predicted would yield, according to a report from the company. The incident occurred just a few months after the California DMV reported that Google vehicles were involved in eight accidents between September 2014 and September 2015, none of which were the fault of the company’s self-driving software, prompting the DMV’s Gonzalez to remark to Government Technology that “if you look at the Google accidents . . . you could come to the conclusion that it looks like the driverless cars are more cautious than the [human-driven] cars that are out there.” A post on the tech blog Backchannel in January, however, stated that Google submitted a “voluminous report” to the California DMV citing 69 “disengagements,” instances when its vehicles were switched from autonomous mode back to manual driving. The company said only thirteen of those incidents would have resulted in a collision, two with traffic cones but ten with other vehicles and one with a pedestrian crossing the street.

Ethical considerations could also give both state and federal regulators pause. At a workshop at Stanford University last year, philosophers and engineers explored ethical dilemmas that might arise with the deployment of autonomous vehicles. One such scenario involved a child running into the street and making the vehicle choose between hitting that child and swerving into the path of an oncoming vehicle. “As we see this with human eyes, one of these obstacles has a lot more value than the other,” said Stanford rofessor Chris Gerdes, as reported by MIT Technology Review. “What is the car’s responsibility?”¹¹

U.S. drivers aren’t exactly clamoring for autonomous vehicles at the moment. Three out of four are “afraid” to ride in a self-driving car, while only one in five would trust one to drive itself, according to a recent survey from the American Automobile Association.¹² But it may not take too long for that to change. The AAA survey also found that drivers who owned cars with semi-autonomous features were 75% more likely to trust self-driving technology than those who didn’t, and 61% of drivers want their next car to have some form of semi-autonomous technology, such as automatic emergency braking or self-parking.

Article courtesy of State Net Capitol Journal News & Views from the 50 States^™, http://www.lexisnexis.com/statenet. Please direct inquiries to statenet@lexisnexis.com.

Copyright © 2016 LexisNexis. State Net is a registered trademark and State Net Capitol Journal News & Views from the 50 States is a trademark of RELX Inc. No part of this document may be copied, photocopied, reproduced, translated or reduced to any electronic medium or machine readable form, in whole or in part, without prior written consent of RELX Inc.

1. Google Self Driving Car Project, https://www.google.com/selfdrivingcar/ (last visited Mar. 17, 2016). 2. Tesla Motors, Model S Software version 7.0, https://www.teslamotors.com/presskit/autopilot. 3. Josh Lowensohn, Uber Just Announced Its Own Self-Driving Car Project, The Verge (Feb. 2, 2015), http://www.theverge.com/2015/2/2/7966527/uber-just-announced-its-own-self-driving-car-project/ in/3561301. 4. Ariz. Exec. Order No. 2015-9, Self-Driving Vehicle Testing and Piloting in the State of Arizona, Self-Driving Vehicle Oversight Committee (Aug. 25, 2015), http://azgovernor.gov/file/2660/ download?token=nLkPLRi1. 5. Chris Urmson, The View from the Front Seat of the Google Self-Driving Car, Chapter 3, medium (Dec. 17, 2015), https://medium.com/@chris_urmson/the-view-from-the-front-seat-of-the-google-self-driving-car-chapter-3-476ea9deed9a#.g6xb0u56h. 6. Rachel Abrams, Self-Driving Cars May Get Here before We’re Ready, N.Y Times (Jan. 21, 2016), http://www.nytimes.com/2016/01/22/business/dealbook/davos-self-driving-cars-may-get-here-before-were-ready.html. 7. Alex Davies, The Feds Will Have Rules for Self-Driving Cars in the Next 6 Months, Wired (Jan. 14, 2016), http://www.wired.com/2016/01/the-feds-want-rules-for-self-driving-cars-in-the-next-6-months/. 8. Id. 9. Alison Vekshin, Self-Driving Cars Would Need a Driver in California, BloombergBusiness (Jan. 28, 2016), http://www.bloomberg.com/news/articles/2016-01-28/self-driving-cars-would-need-a-driver-under-california-rules. 10. NPR Staff, What’s Next for Self-Driving Cars?, NPR (Feb. 25, 2016), http:// www.npr.org/sections/alltechconsidered/2016/02/22/467724324/whats-next-for-self-driving-cars. 11. Will Knight, How to Help Self-Driving Cars Make Ethical Decisions, MIT Tech. rev. (July 29, 2015), https://www.technologyreview.com/s/539731/how-to-help-self-driving-cars-make-ethical-decisions/. 12. American Automobile Association, Automotive Engineering: Vehicle Technology survey (Feb. 2016), http://publicaffairsresources.aaa.biz/wp-content/uploads/2016/02/Automotive-Engineering-ADAS-Survey-Fact-Sheet-FINAL-3.pdf.