Congress’ failure to enact an automated vehicle regulatory framework is an opportunity for states
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Congress’ failure to enact an automated vehicle regulatory framework is an opportunity for states

Automated vehicles (AVs) present many challenges to the automotive regulatory ecosystem and current policy must be updated to accommodate them.

In November, President Joe Biden signed the $1.2 trillion Infrastructure Investment and Jobs Act into law. This bipartisan infrastructure legislation was unprecedented in many ways and will serve as a case study in logrolling for many years to come. Despite its breadth of policy areas—albeit shallow depth in many respects—one subject it failed to address was modernizing federal policies regarding the future deployment of automated vehicles at scale.

The federal government has regulated the safety and performance of motor vehicles since the 1960s. The National Highway Traffic Safety Administration currently enforces 73 regulations called Federal Motor Vehicle Safety Standards. Automakers and parts suppliers are required to self-certify their products to these regulations before they can be sold in the U.S. States also play an important role in regulating the motor vehicle market and are responsible for overseeing licensing, insurance, liability determination, and operations.

Automated vehicles (AVs) present many challenges to the automotive regulatory ecosystem and current policy must be updated to accommodate them.

My Feb. 2021 Reason Foundation policy brief made detailed federal AV policy recommendations that would safely accelerate the development of this technology. I suggested in August that Congress should move quickly to pass separate legislation to enact an AV regulatory framework. Unfortunately, key Democratic Party constituencies, led by labor unions and trial lawyers, have all but scuttled this opportunity in the current Congress.

Despite this temporary setback at the federal level, 2022 can still be a productive year for AV lawmaking in the states. And like Congress, state legislatures should focus on a small number of high-priority items, rather than attempting to address every potential AV issue that may arise in the future.

My 2020 Reason Foundation report highlighted 10 best practices for state automated vehicle policy and can help serve as a guide for state lawmakers. While all of the recommendations serve to support the safe testing and eventual deployment of AVs in the states, four are most important for state legislative action in 2022.

1. Adopting a Standard Vocabulary

It’s important to use clear, consistent language in any automated vehicle policy. As University of South Carolina law professor Bryant Walker Smith aptly put it several years ago, “Lawyers and engineers can—and should—speak the same robot language.”

SAE International, formerly the Society of Automotive Engineers, has produced Recommended Practice J3016 to serve this valuable purpose. The federal government has adopted J3016. State policymakers should as well and should ensure any legislation or regulation is consistent with these standard definitions.

Arizona’s 2021 legislation provides a good example of how states can codify the standard terms of SAE J3016.

2. Auditing Motor Vehicle Code for Existing Barriers

State motor vehicle codes throughout the country contain numerous provisions that obstruct the safe testing and deployment of automated vehicles. This is because the decades-old vehicle codes were written for conventional automobiles driven by humans, not robo-cars. I provide 11 examples of these barriers in my 2020 state AV policy report to give a sense of the scope of this problem. To resolve these conflicts, state lawmakers should commission a thorough audit of their vehicle codes and then exempt AVs from these identified problematic provisions.

In 2021, Florida was the first state to enact legislation to address these types of vehicle code conflicts, adding a new subsection (6) to Florida Statutes Section 316.215 that reads: “The provisions of any motor vehicle equipment laws or regulations of this state which relate to or support motor vehicle operation by a human driver but are not relevant for an automated driving system shall not apply to fully autonomous vehicles that are designed to be operated exclusively by the automated driving system for all trips.”

This is a good temporary relief measure, but states should always strive for precision in their vehicle codes. Longer-term, Florida and others should amend the specific code provisions to either explicitly exempt AVs or rewrite them to be inclusive of both AVs and conventional human-driven vehicles.

3. Distinguishing Between Vehicle Types

Low-speed, low-mass, geographically restricted passenger shuttles, and last-mile delivery vehicles have very different risk profiles and should not be subject to the same standards as highway AVs. The states and federal government (see Federal Motor Vehicle Safety Standard No. 500) have long made this distinction in motor vehicle policy(think golf carts).

The aforementioned 2021 Florida bill that exempted AVs from irrelevant equipment code requirements also created a new regulatory class—“low-speed autonomous delivery vehicle”—for non-occupied AVs that weigh less than 3,000 pounds and have a maximum speed of 25 miles per hour in order to better reflect the different risk profiles of different types of AVs.

4. Avoiding Questionable Legal Frameworks

States wishing to enact AV policy should do so in a straightforward and legally aboveboard manner. Unfortunately, in an effort to avoid hard commitments and retain maximum flexibility, some states have stretched policy tools such as executive orders and agency guidance documents to confer duties on private parties. These “soft law” approaches should be avoided whenever AV policy purports to carry the force of law. Instead, AV policies should be enacted through conventional legislation and regulation.

Arizona initially formed its AV policy framework through a series of executive orders that generated short-term legal ambiguity and long-term policy uncertainty. Fortunately, Arizona also provides a corrective path forward. In 2021, Arizona enacted legislation that effectively codified the policy framework previously provided through executive orders.

Implementing these four state AV policies alone will not create the perfect regulatory landscape, but they can serve as building blocks for the eventual full integration of automated vehicles. In addition, federal inaction on AV safety and performance regulation precludes certain state policy development activities that might otherwise be prudent. In the meantime, all four of these policy recommendations could reasonably be implemented in the 2022 legislative session.