Policy development tends to be reactive. When William P. Eno proposed his “rules of the road” in the early 1900s, he was developing policy to fix congested and chaotic streets. Policymakers today have the opportunity to shape the transportation landscape before the arrival of AVs. This process has already started, with federal guidelines and state-based legislation laying the groundwork for a national system.

The traditional federalist roles in automotive policy have not changed much over the past half-century. The federal government has been responsible for federal motor vehicle safety standards (FMVSS) that regulate the design, construction, and performance of vehicles. The federal government also supplies capital funding to states and localities to build and improve roadways, with requirements for consistent markings and engineering standards.

States and localities control a much larger portion of the policy framework. Their roles include building, maintaining, and owning the roadways. They set the rules of the road, control traffic law enforcement, and regulate the sale and ownership of vehicles. They also have jurisdiction to set insurance rates, assign liability for crashes, and set requirements for vehicle registration and driver licensing.

AVs’ most plausible change to the established structure involves the licensing of the driver. Policymakers are struggling over how to regulate “licensing” a non-human operator. Absent federal standards, some states have moved forward by either banning robot drivers or regulating the standards for the AVs, while others are not taking any action. AV developers see this as a threat to the industry, because a patchwork of standards could make the systems inoperable across state boundaries as well as impracticable from a business standpoint.

NHTSA released the first version of their Federal Automated Vehicles Policy Statement (FAVP) in September 2016, and replaced the document with a second version, FAVP 2.0 Automated Driving Systems: A Vision for Safety, the following year. The statements were written in consultation with industry stakeholders including automakers, technology firms, state government officials, and experts in the field, with incorporation of feedback from public comments. U.S. DOT released the 3.0 version of the FAVP, Preparing for the Future of Transportation: Automated Vehicles 3.0, in October 2018 to augment, not replace, 2.0. FAVP 3.0 includes further guidance for actual implementation of AVs than was laid out in previous FAVPs and integrates guidance for trucks, buses, and other modes beyond passenger vehicles. While these documents are neither binding nor comprehensive, the voluntary guidance establishes a foundation from which industry leaders and the federal government can collaborate on developing AV policies.

The FAVP seeks to assuage industry concerns surrounding the lack of legislative and regulatory certainty for AVs. It provides guidance to manufacturers testing and developing AVs on public roads, clarifies the roles of the federal and state governments in regulating vehicles, their use and associated operations, and outlines NHTSA’s existing and potential enforcement mechanisms. NHTSA received over 1,000 formal comments each on the first and second versions of the document.

In FAVP 2.0, NHTSA encourages AV developers to publish Voluntary Safety Self-Assessments (VSSA) that describe how they address the safety aspects of their AVs and best practices in the industry and at their own companies. According to NHTSA, the VSSA is a method for AV developers to provide concise information to the public about 12 aspects of their AVs and how they are developed:

• System Safety
• Operational Design Domain
• Object and Event Detection and Response
• Fallback (Minimal Risk Condition)
• Validation Methods
• Human Machine Interface
• Vehicle Cybersecurity
• Crashworthiness
• Post-Crash ADS Behavior
• Data Recording
• Consumer Education and Training
• Federal, State, and Local Laws

The guidance emphasizes the “voluntary” nature of this assessment, with that word appearing no fewer than 45 times in the 2.0 document. To date, 12 companies have submitted VSSAs, including Apple, AutoX, Ford, GM, Mercedes-Benz/Bosch, Navya, Nuro, Nvidia, Starsky Robotics, Uber, Waymo, and Zoox. Of the VSSAs submitted, none include a quantitative assessment of safety elements or outcomes. While 2.0 does recommend safety and risk assessment for various ADS tasks, vehicle design, and software, they do not include this in the VSSA template.

The second part of the FAVP 2.0 discusses best practices for state highway officials. It provides no real concrete recommendations but gives states many things to consider should they decide to regulate AVs. USDOT breaks down the areas of state-level action recommended for consideration into seven categories:

1. Administrative: Consider creating an ADS technology committee, a designated lead agency, and allowing applications and permits for AV testing.
2. Standardizing application for tests on public roads: Require AV developers to submit a safety and compliance plan.
3. Permission to test AVs on public roads: Lead this effort and involve law enforcement.
4. Specific considerations for test drivers and operations: Require that testers follow traffic rules, licensed drivers are in control at all times, and AV testers report crashes to the state.
5. Considerations for registration and titling: Consider specific title and registration tags for ADS vehicles, either for new vehicles or those that have been upgraded.
6. Working with public safety officials: Consider training public safety officials to understand ADS and coordinate with neighboring states.
7. Liability and insurance: Begin to consider how to allocate liability and assign who should carry insurance among ADS owners, operators, passengers, manufacturers, and other entities when a crash occurs.

3.0 emphasizes a multi-modal approach and increased safety guidance. It doubles down on the VSSA process established in 2.0 in lieu of legally binding federal safety standards. The new version holistically addresses automation issues across all surface transportation modes. Whereas 2.0 was almost exclusively about the NHTSA and self-driving cars, the new document strings in commercial vehicles, intermodal facilities, and mass transit vehicles, and their operating agencies within DOT.

Echoing the second section of 2.0, the 3.0 document encourages state governments to think twice before regulating AVs: “State legislatures may want to first determine if there is a need for State legislation. Unnecessary or overly prescriptive State requirements could create unintended barriers for the testing, deployment, and operations of advanced vehicle safety technologies.”

In terms of specific actions, the AV 3.0 summary document outlines a number of next steps that DOT will undertake:

• Structuring a proposed collaborative AV safety research program based on public comment on a NHTSA-released Advance Notice of Proposed Rule Making.
• Changing the definition of “operator” by asking for public comment on which of its standard regulations will need to be revised to make it clear that the “operator” of a commercial motor vehicle is not always required to be a human being.
• Changing NHTSA standards to allow cars without driver input. (Because the eventual manufacture of Level 4 and 5 AVs may not require those features, the 3.0 document notes that current safety standards make it illegal to sell cars that lack driver input features like steering wheels, brake and throttle pedals, and mirrors.)
• Fast-tracking the NHTSA exemption process.
• Awarding $60 million in grants for AV testing.
• Updating the Manual on Uniform Traffic Control Devices to reflect changing technology for vehicle-to-infrastructure and vehicle-to-vehicle systems. (The Manual is the official compilation of national standards for all traffic control devices, including road markings, highway signs, and traffic signals.)
• Releasing automated transit bus guidance from the Federal Transit Administration. (FTA has already released the Strategic Transit Automation Research Plan.)
• Evaluating port access and truck queueing from the Maritime Administration and the Federal Motor Carrier Safety Administration.
• Studying workforce impacts in coordination with the Labor, Commerce, and Health and Human Services Departments.

The AV industry’s reactions to the FAVP fall into three general categories. The first was disagreement with the inclusion of level 2 vehicles in the safety assessment letter (SAL) in 1.0. SAE does not categorize level 2 vehicles as “Highly Automated” (see Table 1), and level 2 vehicles are already operating on roads today, creating confusion as to who should submit documentation for that technology and when. FAVP 2.0 resolved that confusion by recommending VSSAs for only level 3 and up. Many comments on 2.0 from automakers acknowledged this, but also contended that the NHTSA descriptions of the levels of automation did not match the SAE descriptions. The FAVP 3.0 adopted more precise SAE language.

A second concern with 1.0 was with the purpose of SAL itself. For NHTSA to evaluate the letters, AV developers claimed that they would need to disclose propriety information about their system design to federal regulators. This would include trade secrets and other confidential data that could be subject to public access. 2.0’s update and VSSA template assuaged those concerns about data, but commenters provided mixed feedback on the omission of certification, ethics, and cybersecurity elements. This did not change in 3.0. Comments from states and other organizations on the 2.0 document addressed other elements of safety assessment, suggesting that there should be demonstrable, measurable safety standards.

The third major concern with 1.0 was regarding its implied recommendation that states formally adopt the NHTSA policy, rendering the voluntary guidance compulsory. Writing a SAL for each state would be burdensome to AV developers and, they claimed the effort would not be very productive for safety. The 3.0 version emphasizes coordination between states and the federal government in an attempt to decrease state regulations and responsibilities.

Aside from the FAVP, the federal government has not passed any policies or laws directly pertaining to automated vehicles except for a few minor demonstration projects and research. Both chambers of Congress have developed bills to address and expand the regulatory authority of the federal government with respect to automated vehicles. The House of Representatives passed the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution (SELF DRIVE) Act by voice vote on September 6, 2017. Meanwhile, the Senate wrote American Vision for Safer Transportation through Advancement of Revolutionary Technologies (AV START). The AV START bill passed the Senate Commerce Committee with bipartisan support, but it did not pass the Senate prior to the end of the 115th Congress. The 116th Congress is expected to pursue similar legislation.

Federal AV legislation aims to address three main components. The first is to direct NHTSA to develop federal motor vehicle safety standards (FMVSS) for HAVs. All vehicles must comply with FMVSS, but current standards pose a hindrance to the commercial realization of AVs. For example, FMVSS set standards for controls, displays, and ways the operator interacts with the vehicle. But many current regulations will not work for dynamic, software-based vehicle control. Creating FMVSS for ADS-operated vehicles will require a rethink of how FMVSS are structured.

While NHTSA is already in the process of doing this, legislation with deadlines and assessments could help streamline the process. NHTSA’s current authority includes preemption of state and local governments to regulate the design, construction, and performance of motor vehicles (something that has been long established in federal automotive policy). Just as they have now, NHTSA would have the authority to regulate, recall, and continually assess automobiles, including those equipped with ADS technologies, as part of a national framework for AV safety. States and localities would reserve their existing responsibilities for certain licensing, use, liability, and legal policies.

Second, the proposed Senate bill also provided an expanded number of exemptions from FMVSS. Currently, automobile manufacturers can apply to be exempt from FMVSS (eliminating, for example, the steering wheel and brake and accelerator pedals) up to 2,500 vehicles sold. Manufacturers must prove to NHTSA that their vehicle is as safe or safer than a compliant design to receive an exemption. Under AV START, the exemption cap would have been incrementally increased to 80,000 vehicles.

Federal policy would also bridge the gap while NHTSA developed full FMVSS by requiring ADS manufacturers to submit a detailed Safety Evaluation Report (SER) to NHTSA prior to deployment. Clarifying rules for liability, data sharing, cybersecurity, and interim safety evaluation reports were all aspects of AV START, and likely will be major portions of future legislation.

States are moving to more clearly define AV requirements, regulations, and infrastructure investment schemes. In general, states have taken one of four approaches to AV policy. (The Governors Highway Safety Association has detailed the specifics of states’ approaches to AV testing and deployment. )

The first approach is hands off, when states do not have any regulations or laws that specifically pertain to AVs. Not that they are unaware of the changing environment, but many states are instead working to craft laws or waiting to see how the market evolves in the rest of the country. While this leaves any AV subject to existing traffic and motor vehicle laws, it does not explicitly prohibit their operation so long as a licensed human driver is in control.

The second approach is when states explicitly express interest in AVs but have not passed any laws directly related to testing and deployment. Through executive orders, states like Arizona have started to set up self-driving vehicle oversight committees and research teams at their respective state departments of transportation. Virginia’s governor issued a 2015 “executive proclamation” that supports AV research and the testing conducted in partnership with Virginia Tech. Virginia also created the Virginia Automated 20xx Working Group to bring state-level policymakers and officials together in order to create a state strategic plan for AVs. North Dakota established a legislative management study of AVs. These groups work to inform lawmakers and other state officials on when and how to craft state laws or investments for AVs.

But these states have been known to move quickly and modify their approaches over the course of a few years. Georgia’s Joint Autonomous Vehicle Technology Study Committee evaluated the issues facing AV technology through three public hearings involving academics and industry experts. The committee’s final 2014 report advised the Georgia state legislature to refrain from passing any legislation until the technology had matured. It stated: “To recommend any changes to our current system at this time would be putting the proverbial cart before the horse.” However, the state has since decided to move forward on implementing official AV policies by enacting a law that allows for fully driverless AVs.

The third approach includes states that explicitly allow for AV testing. This is most common among states that have AV laws and includes Michigan, California, Utah, Nevada, and Tennessee. California requires licensing with the state and regular reporting of any system problem or incident. Tennessee set up a framework for the state to begin charging a per-mile fee on AV driving. Michigan passed AV legislation that allows for testing on public roads, truck platooning, and legalized self-driving ridesharing in the state. Utah authorized the state DOT to conduct a connected automated vehicle (CAV) testing program on platooning applications. In most of these cases, AV developers must obtain a state-approved permit that requires them to report their safety infractions to the state government.

The fourth approach includes states that explicitly allow HAVs to be deployed beyond the testing phase. Florida was one of the first states to pass an AV policy and, along with Georgia, Nebraska, Tennessee, and California, it is one of only five states to specifically allow for the operation of driverless vehicles. Under Florida’s current framework, AVs can operate on public roadways without a human physically present in the vehicle. The only requirement is that if the system fails, the vehicle and software must be able to inform an operator within the vehicle, or via remote, and safely bring itself to a stop. The District of Columbia and many states also allow for fully automated vehicles, as long as a human operator is present in the driver’s seat.

As of October 2018, 41 states and Washington D.C. have proposed or enacted self-driving laws (Figure 1). This has created a patchwork of state regulations, which allows policymakers to learn and compile lessons from various approaches, but also troubles many AV developers.

The first state to enact legislation authorizing the operation of AVs was Nevada in 2011. The law defined “autonomous vehicles” and directed the state’s department of motor vehicles to adopt rules for license endorsement, operation, insurance, safety standards, and testing. Since then, 25 states have enacted AV legislation: Alabama, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, and Virginia, as well as the District of Columbia. Most of these laws passed in 2017 and 2018.

The enacted laws vary in scope, rules, and extent, and create a medley of frameworks to which AV testers must adapt. Florida passed a law in 2012 and another in 2016, eliminating the driver requirements for automated vehicle testing and expanding AV operation on public roads. North Dakota requires its state department of transportation to study use data from AVs traveling on its highways, and Utah, Connecticut, and Florida also have study requirements accompanying their laws. Tennessee set up a framework for the state to begin charging a per-mile fee on AV driving. Michigan passed comprehensive AV legislation in a series of six bills between 2013 and 2016 that allow for testing on public roads without a driver, truck platooning, and legalized self-driving ridesharing in the state.

In 2015, the governor of Arizona issued an executive order for various agencies to support the testing and operations of AV and encouraged universities to launch pilot programs for AVs. He followed up with a 2018 executive order requiring federal safety standard compliance. A Massachusetts order created an AV working group to craft legislation and a Memorandum of Understanding (MOU) agreement for companies to sign before testing on state roads. A March 2018 executive order in Minnesota established a Governor’s Advisory Council requiring bicameral and bipartisan membership. Most recently, outgoing Illinois Governor Bruce Rauner signed an executive order in October 2018 initiating an AV initiative under the state DOT that includes AV development, testing, and deployment requiring an in-vehicle operator and a registration system.

Problems with legal patchworks and attempts to harmonize AV regulations are not limited to the United States. In November 2016, Australia’s National Transport Commission (NTC) published national guidelines on AVs in an attempt to establish a consistent regulatory environment across the country. Then, in May 2018, state and territory ministers of the Transport and Infrastructure Council approved a set of NTC policy recommendations toward a national, uniform approach to AV legislation, including clarification to ensure some legal entity would be responsible for automated operations.

In March 2016, the United Nations Economic Commission for Europe updated the UN 1968 Vienna Convention on Road Trafficking, which harmonizes regulations for use of roadways across Europe and with other cross-continental signing parties, to allow for AV technologies in real traffic. These intergovernmental and international efforts continue. The UN Economic Commission for Europe Sustainable Transport Division oversees a world forum for the harmonization of vehicle regulation, and a subsidiary working party on automated/autonomous and connected vehicles (GRVA, abbreviation of the French name) was created in June 2018.