March 9, 2018

The State of California has updated their regulations for automated vehicles (AVs) on public roads to allow testing of automated vehicles without a driver in the vehicle this spring, a change from the current regime that requires a human to monitor behind the wheel at all times. The notice will go out on April 2, 2018, and the state will be able to approve permit applications 30 days later.s

The new regulations permit manufacturers to put operational AVs that can operate at an SAE level of automation of 3, 4, or 5 on public roads. The vehicles must be for testing only. Here is the catch: while no driver is required to be present, there must be a person actively supervising the driving remotely who can gain control of driving tasks and can engage in two-way communication with any passengers in the vehicle. So while the vehicle might look like one with level 4 capabilities, it is in fact a level 2 or 3 with a remote human controller.

As discussed previously in ETW, the law uses permissive language to stipulate what, where, and how a manufacturer (defined as anyone who modifies a vehicle to include autonomous technology) can operate and test their vehicles, rather than focusing on restrictive language that would require manufacturers to use certain components or designs.

The vehicles will be able to carry passengers as long as they aren’t charged. If there is a person in the vehicle that is unable to manually operate the vehicle (either because they are unlicensed, unable to drive, or because the vehicle lacks the components that allow a person inside the vehicle to control it), they must be able to communicate with a person who can remotely operate the vehicle.

Manufacturers are required to disclose personal data being collected to the vehicle owner, lessee, or passenger, unless they deem the data deem necessary for the safe operation of the vehicle in which case they can anonymize the data and choose not to disclose what is being collected. The option to not disclose anonymized data two potential problems. First, California is thus assuming that automated test vehicle manufacturers are able to quality control the anonymization of data. This may be difficult due to unique travel patterns and small sample sizes, especially in the early phases when there are fewer tests and passengers and data may have to be aggregated at varying levels to ensure anonymity. Second, manufacturers have broad leeway into what they consider data they cannot disclose, much like the control of personal data such as trip origin and destination data with other services people use on a daily basis such as Google or TNC ride hailing services.

For crash analysis, the regulations maintain that vehicles must record data from at least 30 seconds before a collision and that it must be extractable by commercially available means. The requirement for recording sensor data for at least 5 seconds after the collision or until the vehicle comes to a complete stop was removed from an earlier draft. The statement of reasons for the change states that the section is necessary to conform to the requirements in the California Vehicle Code, which only require autonomous sensor data prior to collisions, not following them.

While the public comments did not dwell on the requirements for sensor data recording, many people/organizations commented extensively regarding concerns on the burden of disengagement reporting requirements. California’s response to each of the comments emphasizes the importance of robust, uniform data collection for safety research and NHTSA’s support in the endeavor.

The 2017 proposed regulations requirement for coordination between manufactures and local authorities received significant pushback during public commenting with complaints that it would be too involved and time consuming for the manufacturers to coordinate with multiple localities. Manufacturers are, however, required to coordinate with local entities to the extent that they must develop a law enforcement plan that includes information on how to communicate with and control the vehicles. California’s determination to maintain state level permitting and regulations follows the same reasoning that national policies should be in place to minimize jurisdiction-by-jurisdiction differences making it difficult for testing and deployment.

Manufacturers testing vehicles that do not require a driver in the vehicle are required to notify local authorities and provide the following information:

• Vehicles’ operational design domain
• Roads where the vehicles will be tested
• Date that testing will start
• Days and times that testing will occur
• Number and types of vehicles to be tested, and contact information for the manufacturer conducting the testing

While the new regulations give manufacturers a lot of flexibility in testing driverless vehicles, the requirements to remotely monitor the driving and coordinate with localities will help curb any impulse to just tossing vehicles without drivers onto roads. The vehicles will likely be operating in locations with infrastructure in good condition and the manufacturers must maintain proper data management to ensure that mapped networks used by the vehicles are kept up to date with any changes in the real world environment.

In terms of human control of a vehicle, this new law in California is not heralding a major change. Vehicles will still be monitored the entire time they are engaged in driving activity, the only difference being that the person with control will be in a different location. The law allows a step forward towards unmonitored vehicles and allows for innovations in hardware, as the biggest difference is the lack of physical presence of a person to operate the vehicle. Introducing vehicles without drivers in the front seat onto public roads is also a first step in changing public perception of automated vehicles on our roads. A gradual shift in the model of what a vehicle looks like while maintaining human oversight and two-way communication for passengers with the remote operator can help ease people into a new comfort zone for driverless AVs.