Identifying AV Policy Gaps: State and Federal

Evaluating Purview of state vs. federal government 

While there already has been considerable discussion in the literature and public discourse about the role of federal and state regulators in determining vehicle safety parameters for automated vehicles, recent progress in the regulatory effort has closed some gaps, while others remain. In March 2022, the National Highway Traffic Safety Administration (NHTSA) issued new Federal Motor Vehicle Safety Standards (FMVSS) for automated vehicles, focusing on providing relief to manufacturers who were seeking FMVSS exempts previously if their vehicles couldn’t meet standards for vehicles which lacked steering wheels and brakes. The new FMVSS aims to ensure that despite the different features of AVs, occupant safety remains a priority for automated vehicles. 

However, questions remain about whether there are still policy gaps that will be filled by federal regulators. While the issues with the vehicle design are partially resolved, the automated driving system (ADS) which is the software and hardware packages that enable automated driving remain unregulated. A Notice of Proposed Rulemaking (NPRM) was issued by the USDOT during the Trump administration to begin the process of regulating ADSs, but it remains unclear whether this will advance or whether this type of regulation will fall to state regulators (although this is unlikely in the long term). In the short term states, especially California, may want to determine what an ideal ADS safety regulation would look like and invite comment from stakeholders on how it could be implemented at the state level in such a way that encouraged state differentiation, but still avoided a patchwork of vastly different state regulations.        

Evaluating Safety Standards 

To avoid a patchwork, states could begin with requirements to implement the industry safety standards and design rules of the road that align with vehicle standards. For example, several third parties have established safety standards  for  AVs, including UL 4600, which is a set of prompts that address only fully driverless AVs.  UL  4600  addresses the following topics:

  • safety case construction  
  • risk analysis   
  • safety relevant aspects   of   design process
  • Testing
  • tool qualification
  • Autonomy validation
  • data integrity
  • human-machine interaction (for  non-drivers)
  • life  cycle  concerns
  • metrics  
  • conformance  assessment

Considerable effort went into establishing these standards among private sector stakeholders. There may be lessons to be learned in these broader safety discussions that can inform state regulators to inform a broader discussion around whether and how to redefine the state’s rules of the road to maximize safety outcomes for all road users (riders, bicyclists, pedestrians, etc).

The FMVSS was recently revised, while leaving some critical gaps (e.g. vehicles with cabin seating still have to seek exemptions) so while the state’s purview over AV vehicle safety is now more limited, given FMVSS process will review more vehicles. Some vehicles still will seek exemptions, and state permitting will require the state to assess and determine whether permit applicants have demonstrated safe operations, whether they have received FMVSS exemption or not. In the absence of third-party validation, there will be some gray area that will require state regulators to be called upon to assess safety.  

Evaluating Need for More Specific AV Permit Classifications 

Finally, this last component of the research will address the fact that California state agencies have a single-type permitting system for AV companies, but more types of who can define their ODD.