Department of Transportation Releases Policy Guidance on Autonomous Vehicle Technology (Part II: State Government Guidance)

Foley & Lardner LLP

Foley & Lardner LLP

In addition to its industry guidance, covered in the previous post, the DOT’s Policy Guidance for autonomous vehicle technologies also proposed a “model state policy” for regulating these new vehicles. This guidance jumps off from DOT’s encouragement to states to leave regulation of autonomous vehicle performance to DOT, and to work with NHTSA to develop any state-level regulation that does wind up being adopted. DOT does recognize, on the other hand, the value of states’ roles in licensing operators and registering vehicles; enacting and enforcing traffic laws; conducting safety inspections; and regulating insurance and liability requirements.

The model policy covers the following areas of potential regulation:

  • Administrative regulations: This includes determining which agency will have primary responsibility for considering testing autonomous vehicles, defining which stakeholders should participate (or be consulted) in developing regulation and oversight measures, and determining how test permits for new technologies should be issued. This portion of the model policy also includes a legal review for states to undertake, to determine whether there are legal issues that need to be confronted before autonomous vehicles are deployed and operated in the state.
  • Testing applications: The model policy suggests that states, through their designated lead agency, should establish an application process for manufacturers and “other entities” to test their technologies. The application process should include identifying not only the manufacturer/other entity, but also the vehicles to be used (including VINs), each operator that will be testing the vehicles, and the safety and compliance plan that will be used by the tester. The application should also include evidence that the tester can satisfy a judgment against them, such as an insurance policy, bond, or proof of self-insurance, in an amount of at least $5 million. Testers should also disclose the training provided to the operators actually testing the vehicles.
  • Jurisdictional permission: The model policy states that the lead agency, in cooperation with law enforcement, should consider requirements including geographic or safety limitations (such as forbidding testing in school zones), that the operators carry a vehicle-specific permit in the vehicle at all times, and that each vehicle be properly registered and titled. The model policy also suggests suspending any authorization to test if the tester’s self-certified compliance plan is not followed, or if other testing requirements are not met.
  • Manufacturer testing: Testing should only be carried out by drivers or operators designated by the tester, who have been trained regarding the vehicle’s capabilities and limitations. These operators (who are potentially subject to background checks for driving and criminal histories) are responsible for traffic violations. Manufacturers must comply with NHTSA and other federal requirements for operating vehicles on public roads, and any resulting crashes must be reported under state law.
  • Drivers of deployed vehicles: For less than fully automated vehicles (that is, vehicles that are designed to revert control back to the driver under certain conditions or failure modes), drivers should be licensed under state law. Fully automated vehicles, on the other hand, do not require a licensed driver. The policy also indicates that states (with NHTSA’s assistance) should work to identify and address gaps in existing regulations, including regulations governing occupant safety, insurance requirements, crash investigation and reporting, tort and criminal liability, safety inspections, driver education and training, vehicle modifications and maintenance, and others.
  • Registration and titling of deployed vehicles: Title and registration documents should reflect whether the vehicle can be operated without a human driver, whether at all times or under limited circumstances. If a vehicle is upgraded to have this capability, the installer should notify the state motor vehicle agency.
  • Law enforcement: DOT’s guidance urges states to work together to create a uniform framework for distracted driving laws, particularly for vehicles that have less than full automated capabilities. The guidance also notes that there are unique risks that first responders may need to be aware of, including the possibility that a vehicle can turn itself on or even move itself at times that may be unexpected.
  • Liability and insurance: The guidance recognizes some of the difficulties surrounding liability and insurance requirements for autonomous vehicles. Where a vehicle is operating autonomously, the guidance suggests that a manufacturer—not the driver—may be determined to be liable for a crash. Likewise, determining who needs to carry insurance for an autonomous vehicle is an unsettled question. The policy document suggests that states may want to create a commission to study these issues, and make recommendations for appropriate policies.

How states choose to address these issues will affect not just the manufacturers and others looking to provide autonomous vehicle solutions, but will likely help determine just how accepting the general public is of these vehicles. If consumers are assured of exactly what the legal framework is, and what their responsibilities are for carrying insurance or being licensed to operate these vehicles, it will be easier to get first adopters on board.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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