United States: California Opens The Road To Fully Driverless Cars; Federal Policymaking Slowly Rolls Forward

On February 26, 2018, the California Department of Motor Vehicles (DMV) announced new regulations allowing fully driverless cars to be tested on California roads as of April 2, 2018.[1] The announcement culminates a multi-year process undertaken by DMV.[2]

The new regulations mark a significant change. Although DMV has already issued permits to 50 manufacturers and technology companies allowing for autonomous vehicle (AV) testing on California roads under its existing regulations,[3] the new regulations are among the first in the nation allowing for AV testing without a human driver present in the vehicle. They represent a critical next step in the deployment of fully driverless vehicles to the public. In fact, the new regulations anticipate deployment once testing has been successfully completed. They not only provide for permits to allow testing of AVs without a human driver (at §227.38), but also provide for permits to allow post-testing deployment of AVs (at §228.06).

  • The regulations provide extensive requirements associated with a permit to test fully driverless AVs. Notably, a remote operator must be in communication with the vehicle. In addition, there must be a process to communicate between the vehicle and law enforcement, manufacturer monitoring of test vehicles, and timely submission of incident reports.[4]  The regulations also require the manufacturer to certify that the AVs can operate at level 4 or level 5 (i.e., highly automated vehicles) under SAE International's Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles, which the rules incorporate by reference.[5]
  • The new regulations provide significant additional requirements associated with post-testing deployment of AV technology for use by the public. For example, vehicles must be equipped with an autonomous vehicle data recorder, requisite technology to detect and respond to roadway situations, and the ability to provide appropriate information to third parties in the event of a collision.[6]  The new regulations associated with public use also require that current industry standards to detect, defend, and respond to cyber-attacks and unauthorized instruction, including false vehicle command codes, be met.[7]

Federal Policymaking: Slowed, Not Stopped

In contrast to policymaking in California and other leading states, the wheels are turning slowly on federal self-driving policy.[8] The current administration rolled back much of the Obama administration's efforts on AVs with its "A Vision for Safety 2.0." [9] The current policy does not propose binding nationwide standards and, therefore, is unlikely to contribute to regulatory harmonization nationwide. Characterized by the administration as a "nonregulatory" approach, both the U.S. House and Senate are making progress toward a federal regulatory regime, with bills that include mandates for the U.S. Department of Transportation to make binding rules on AVs and assert federal pre-emption over AV design, construction, and performance.

In what amounts to rare bipartisan momentum: The House's Safely Ensuring Lives Future Development and Research in Vehicle Evolution (SELF DRIVE) Act – passed committee 54 to 0 before being passed by the full chamber on a voice vote in September 2017.[10] And the Senate's American Vision for Safer Transportation through Advancement of Revolutionary Technologies (AV START) Act – cleared the committee of jurisdiction unanimously and is pending floor action.[11]


[1] https://www.dmv.ca.gov/portal/dmv/detail/pubs/newsrel/2018/2018_17.

[2] This multi-year process started with a draft proposal in December 2015 (see https://www.dmv.ca.gov/portal/wcm/connect/dbcf0f21-4085-47a1-889f-3b8a64eaa1ff/AVRegulationsSummary.pdf?MOD=AJPERES) and concluded with today's final approval by California's Office of Administrative Law (see https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto).

[3] https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/permit.

[4] See §227.38 available at https://www.dmv.ca.gov/portal/wcm/connect/a6ea01e0-072f-4f93-aa6c-e12b844443cc/DriverlessAV_Adopted_Regulatory_Text.pdf?MOD=AJPERES.

[5] Id.

[6] See §228.06 available at https://www.dmv.ca.gov/portal/wcm/connect/a6ea01e0-072f-4f93-aa6c-e12b844443cc/DriverlessAV_Adopted_Regulatory_Text.pdf?MOD=AJPERES.

<[7] Id.

[8] https://www.lexology.com/library/detail.aspx?g=9bbd6109-95f5-420e-a9ce-addf5eeaf2ab.  

[9] https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf

[10] https://energycommerce.house.gov/selfdrive/.

[11] https://www.congress.gov/bill/115th-congress/senate-bill/1885/text.

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.

© Morrison & Foerster LLP. All rights reserved

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