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In the U.S., certain aspects of vehicle and driver regulation are traditionally subject to federal control (such as vehicle safety and recalls) and others are typically subject to state authority (such as vehicle registration, licensing, insurance, traffic regulations, and vehicle owner or operator responsibilities, liabilities, and insurance). In 2016, only seven U.S. states had passed legislation addressing AV testing and use, and the U.S. federal government had only started to this amazing technology. Since then, the federal government has issued two major updates to its autonomous vehicle policy and two substantive autonomous vehicle bills have been proposed and debated in Congress, and 21 states and the District of Columbia have legislated and 11 states have taken action through an executive order in the autonomous vehicle field.
This section will address the federal developments in this space as well as provide a summary of the patchwork quilt of state law requirements.
(Photo courtesy of drive.ai)
A. U.S. Department of Transportation (“DOT”) and the National Highway Transportation Safety Association
In September 2017, the U.S. Department of Transportation (“DOT”) and the National Highway Transportation Safety Association (“NHTSA”) released “Automated Driving Systems 2.0: A Vision for Safety” (“A Vision for Safety”) designed to “promote improvements in safety, mobility, and efficiency though [automated driving systems].” This policy updated and replaced the 2016 Federal Automated Vehicles Policy (the “2016 Policy”).
Although A Vision for Safety superseded the 2016 Policy, the goals of the two policies differ in certain ways. Where the 2016 Policy contained concrete regulatory steps, A Vision for Safety creates a voluntary set of flexible suggestions and considerations.
Discussed below, A Vision for Safety addressed two major areas. It included: (1) voluntary guidance related to testing and deployment of autonomous vehicle technology; and (2) assistance to state legislatures considering implementing regulations relating to automated driving systems.
(i) NHTSA’s Voluntary Guidance to Manufacturers
In the 2016 Policy, the NHTSA advised that it would “request that manufacturers and other entities voluntarily provide reports regarding how [the NHTSA’s] guidance had been followed.” At the time, the NHTSA called these reports “safety assessment letters.” Each letter was to cover fifteen (15) substantive areas of guidance. The NHTSA stated that “this reporting process may be refined and made mandatory through future rulemaking.” Further, the 2016 Policy suggested the future implementation of enforcement tools to manage the development of autonomous vehicle technology, including pre-market approval authority and cease-and-desist authority.
One year later, A Vision for Safety rejected the 2016 Policy in favor of voluntary guidelines. This time, the NHTSA’s guidance asks only for safety self-assessments which are expressly voluntary: “This Guidance is entirely voluntary, with no compliance requirement or enforcement mechanism.” Instead of the previous 15 substantive areas of guidance, A Vision for Safety includes only 12. In addition, the 2016 Policy’s suggestion of potential enforcement tools has been removed.
(ii) NHTSA’s guidance to state policy makers
Consistent with the 2016 Policy, A Vision for Safety strongly encourages states not to adopt legislation that would place barriers on autonomous vehicle systems. A Vision for Safety encourages following best practices in creating legislation, including: providing a technology-neutral environment, providing licensing and registration procedures for autonomous systems; providing reporting and communication methods for public safety officials and reviewing traffic laws and existing regulations that may serve as barriers to the operation of autonomous systems (such as a requirement that a human operator have one hand on the steering wheel at all times).
The NHTSA also provides guidance for State Highway Safety officials, recommending new oversight activities on the state level (such as designating or creating an agency responsible for reviewing autonomous vehicle testing), recommending steps for applications to test on public roadways, granting permission for entities to test on public roadways, considerations for test drivers and operations, considerations for registration, titling and insurance, and consideration for public safety officials (including training for safety officials).
B. Federal legislative update
(i) Recent congressional legislation
In September 2017, Senate Bill 1885 was introduced: the “American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act.” Also known as the AV START Act, the bill was presented to the Senate Committee on Commerce, Science, and Transportation, and in November, the Committee recommended amendments to the bill, and with those amendments, recommended the passage of the bill.
At the same time the AV START Act was making its way through the Senate, a similar bill, the “Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution Act” or “SELF-DRIVE Act,” was making its way through the House of Representatives. The SELF‑DRIVE Act ultimately passed the House, and was received in the Senate, which referred it to the Committee on Commerce, Science, and Transportation, where it currently is pending.
Discussed below, while both Acts are largely similar, they do differ in certain ways. And, as will become clear, both Acts take a much stricter approach to federal government regulation than the NHTSA’s A Vision for Safety. Ultimately, it is likely that the bills will be harmonised into a version presented to the full Congress for approval at some point in the future.
· Similarities between the AV START Act and the SELF DRIVE Act
The Senate’s AV START Act and the House’s SELF DRIVE Act have many similarities. For example, both pieces of proposed legislation encourage the DOT to update and change the Federal Motor Vehicle Safety Standards as quickly as possible, emphasize the preemptive effect of federal legislation in this area, establish technical groups to generate recommendations to the DOT regarding autonomous vehicle regulations, and increase the number of exemptions to the Federal Motor Vehicle Safety Standards that the DOT may grant. Further, both the AV START Act and the SELF DRIVE Act would amend the U.S. Code to allow all manufacturers to test a vehicle that does not comply with the Federal Motor Vehicle Safety Standards.
In contrast to the NHTSA’s A Vision for Safety, both pieces of congressional legislation impose concrete regulatory burdens on autonomous vehicle and system manufacturers.
Described below, for example, both proposed bills would require autonomous vehicle and system manufacturers to: (i) submit some form of safety evaluation and assessment report to the DOT; and (ii) submit some form of cybersecurity plans to the DOT.
· Mandatory safety self evaluation reports
Both the AV START Act and the SELF DRIVE Act would require autonomous vehicle and system manufacturers to provide safety evaluation and assessment reports to the DOT. Of the two proposed bills, the Senate’s AV START Act contains more regulatory requirements.
Section 9 of the AV START Act would require “every manufacturer introducing a new highly autonomous vehicle or automated driving system into interstate commerce” to “provide a safety evaluation report” that “describes how the manufacturer is addressing the safety of such vehicle or system” relating to nine (9) different substantive areas. These safety evaluation reports would be due to the Secretary of Transportation at three separate times for each vehicle: (1) upon testing of a highly autonomous vehicle or automated driving system; (2) not later than 90 days before selling, offering for sale, or otherwise commercializing a highly autonomous vehicle or automated driving system; and (3) annually until the vehicle or system is no longer being sold, offered for sale, or otherwise introduced into interstate commerce by the manufacturer.
Section 4 of the SELF DRIVE Act would requires the DOT to issue a final rule within two years of the Act being signed into law “requiring the submission of safety assessment certifications regarding how safety is being addressed by each entity developing a highly automated vehicle or automated driving system.” In the interim, “safety assessment letters shall be submitted to the [NHTSA] as contemplated by [the 2016 Policy] or any successor guidance issued on highly automated vehicles requiring a safety assessment letter.”
· Mandatory cybersecurity reports
In addition, both the AV START Act and the SELF DRIVE Act would require autonomous vehicle manufacturers to submit cybersecurity plans to the DOT, although the details of each Act’s cybersecurity plans differ slightly.
Section 14 of the AV START Act would require “each manufacturer of a highly automated vehicle or automated driving system” to “develop, maintain, and execute a written plan for identifying and reducing cybersecurity risks to the motor vehicle safety of such vehicles and systems” that addresses processes for 10 specific areas covering the identification, evaluation, and response to cybersecurity threats. Other than impose the requirement for such a cybersecurity plan, this Act does not specify a time or date by which the plan must be implemented.
In contrast, Section 5 of the SELF DRIVE Act would prohibit an autonomous vehicle or system manufacturer to “sell, offer for sale, introduce or deliver for introduction into commerce, or import into the United States, any highly automated vehicle, vehicle that performs partial driving automation, or automated driving system unless such manufacturer has developed a cybersecurity plan that includes” a written policy, the identification of a point of contact for cybersecurity management, a process for limited access to automated driving systems, and a process for employee training relating to cybersecurity.
· Commercial trucking industry
Autonomous vehicle regulation in the U.S. has focused on consumer vehicles rather than commercial vehicles. For consumer vehicles, fully autonomous vehicle capability in is still largely in the testing phase, and widespread market disruption may not be felt for several years to come. In the commercial trucking industry, however, developments in autonomous vehicle technology are already starting to occur. In late 2017, for example, Tesla, Inc. announcing the production of a semi-autonomous semi truck and Embark Trucks, Inc. began running autonomous semi trucks that it built and operated between Texas and California.
Neither the Senate’s AV START Act nor the House’s SELF DRIVE Act are applicable to the commercial trucking industry. Specifically, Section 2 of the AV START Act defines “highly automated vehicle” to include only autonomous vehicles weighing 10,000 pounds or less. In fact, in his press release regarding the proposed Act, Senator John Thune expressly highlighted that the act “maintains [the] status quo for trucks and buses.” In the SELF DRIVE Act, Section 13 would define a highly automated vehicle as one that “does not include a commercial motor vehicle (as defined in [49 U.S.C. § 31101].).”
C. State regulations
Not prepared to wait for a federal system to apply to the entire union, state governments have been actively enacting their own rules and regulations with respect to autonomous vehicles: passing laws, signing executive orders, promulgating regulations, and having autonomous vehicles tested both on privacy and public roads. In 2012, only six states had introduced autonomous vehicle legislation. In 2016, 20 states introduced autonomous vehicle regulation. Last year, in 2017, 33 states introduced autonomous vehicle legislation.
There is currently an open debate among state governments as to how accessible they should be to autonomous vehicle testing, manufacturing, and deployment. On the one hand, as autonomous vehicle technology advances, states feel the need to allow autonomous vehicles greater access to their roadways to encourage in-state technological innovation and financial investment. California, for example, used to require a driver behind the wheel of a vehicle with autonomous vehicle technology in case of emergencies, impliedly requiring autonomous vehicle manufacturers to include a steering wheel and pedals in their designs. New York state, similarly, used to require a human driver to keep a hand on the wheel at all times. Wary of losing out on the significant investment and job creation this industry may provide, in 2018, California and New York eliminated or suspended these requirements.
Although states want to encourage the development of the technology in their region, they also are concerned for overall safety. As a result, although states seek to attract the industry into their borders, they also set requirements meant to protect their citizenry. For example, in March 2018, the governor of Arizona signed Executive Order 2018-04, giving autonomous vehicle manufactures permissions to test or operate fully autonomous vehicles on public roads in Arizona. Three weeks later, however, a highly autonomous vehicle being tested by Uber hit and killed a pedestrian in Tempe, Arizona – the first time a pedestrian had been killed by a highly autonomous vehicle.
Perhaps because of this tension, few states have allowed for the full deployment of these vehicles. And among those states, the level and complexity of autonomous vehicle regulations varies. For example, California very recently imposed a complex and in-depth permitting system for highly autonomous vehicles. Although the California DMV now has the authority to issue permits for fully driverless testing and deployment of autonomous vehicles, manufacturers seeking to test and deploy autonomous vehicles in California will need to know how to apply for, maintain, and navigate these new permitting requirements before their cars will ever see California roads. In contrast, Texas’s recently passed autonomous vehicle legislation requires no special permits for full deployment on public roads.
Nevada was the first state to authorise autonomous vehicles in 2011. Twenty-nine other states have now since followed. In addition, governors in 10 other states have issued executive orders relating to autonomous vehicles. All of this activity represents more than half of the 50 states putting into place at least some local rule or regulation relating to AVs. Although states initially directed their legislative activity on either a study of the technology or the requirements for a permit to operate the vehicles, more recently laws focus on more advanced topics, such as “platooning” of these vehicles: permitting groups of vehicles to travel closely together, enabling more fuel efficiency. “Platooning” would usually violate state laws because most states prohibit drivers from following “too closely” the cars ahead of them.
Four states have been particularly active in this space and, as a result, have captured a great deal of the press coverage on how local governments are managing these unique vehicles: Arizona, California, Michigan, and New York.
Arizona has not enacted any legislation relating to autonomous vehicles. Instead, in 2015 and again in 2018, Arizona Governor Doug Ducey signed an executive order relating to testing and piloting of “self-driving vehicles.”
The 2015 order directed state agencies to “undertake any necessary steps to support the testing and operation of self-driving vehicles on public roads in Arizona.” The order also established a committee to advise state agencies on “how best to advance the testing and operation of self-driving vehicles on public roads.”
The 2015 order limited the pilot program to “campuses of selected universities in partnership with entities that are developing technology for self-driving vehicles.” The order listed four requirements for the vehicles in the pilot program:
- The operator must be an employee, contractor or other person authorised by the entity developing the technology;
- The vehicle must be monitored, and the operator must have the ability to direct the vehicle’s movement if required;
- The individual operating the vehicle must have a U.S. valid driver’s license; and
- The vehicle owner must submit “proof of financial responsibility” in an amount specified by the Arizona Department of Transportation.
On March 1, 2018, the Governor signed a new Executive Order titled “Advancing Autonomous Vehicle Testing and Operating; Prioritizing Public Safety.” In this order, Arizona has adopted the SAE standard and expands upon the previous order to include requirements for testing or operation of vehicles that do not have a human driver present (if the vehicle is fully autonomous or “driverless” – SAE level 4 or 5). The order contains some important definitions:
“Automated driving system” is: The hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis, regardless of whether it is limited to a specific operational design domain.
“Dynamic driving task” is: All of the real-time operational and tactical functions required to operate a vehicle in on-road traffic, excluding the strategic functions such as trip scheduling and selection of destinations and waypoints, and including without limitations:
- Lateral vehicle motion control via steering;
- Longitudinal motion control via acceleration and deceleration;
- Monitoring the driving environment via object and event detection, recognition, classification, and response preparation;
- Object and event response execution;
- Maneuver planning; and
- Enhancing conspicuity via lighting, signaling, and gesturing.
“Operational design domain” is a description of the specific operating domain(s) in which an automated driving system is designed to properly operate, including but not limited to roadway types, speed range, environmental conditions (weather, daytime/nighttime, etc.), and other domain constraints.
With respect to SAE level 4 or 5 vehicles, Arizona requires that, prior to commencing testing or operation of the vehicle, the person must submit to the Arizona Department of Transportation a written statement with four acknowledgements:
- The automated driving system complies with all applicable federal law and safety standards and bears required certification label(s)—or an exemption has been granted by the federal National Highway Traffic Safety Administration;
- If the automated driving system fails, the vehicle must achieve a “reasonably safe state, such as bringing the vehicle to a complete stop”;
- The vehicle complies with all Arizona laws and regulations and person testing or operating the vehicle may be issued a traffic citation or penalty if the vehicle fails to comply; and
- The vehicle meets “all applicable certificate, title registration, licensing and insurance requirements.”
In addition, the Arizona Department of Public Safety, in coordination with other relevant law enforcement agencies, must issue a “law enforcement interaction protocol addressing fully autonomous vehicles.” That protocol must include descriptions of how to interact with the vehicles in emergency and traffic enforcement situations, contact information for both insurance and citation purposes and “any other information needed to ensure the safe operation of fully autonomous vehicles in Arizona.”
The order also requires that anyone testing or operating vehicles with an “automated driving system” must comply with all federal and state laws and “violations will lead to suspension and/or revocation of the permission to test or operate on public roads.” This obligation extends to vehicles at SAE level 3 as well as levels 4 and 5.
Seventeen days after the issuance of that order, on March 18, 2018, a pedestrian died after she was struck by an autonomous Uber Volvo XC90 in Tempe, Arizona, as she was walking her bike across a highway at night outside of a crosswalk. The Tempe police chief said that, based on videos of the incident, “it’s very clear it would have been difficult to avoid this collision in any kind of mode (autonomous or human-driven) based on how [the pedestrian] came from the shadows right into the roadway.” Although the police chief stated that “Uber would likely not be at fault”, she also stated that she “[would not] rule out the potential to file charges against the [backup driver] in the Uber vehicle.”
Almost immediately, Arizona Governor Doug Ducey suspended Uber’s ability to conduct autonomous vehicle testing, stating that the incident was “an unquestionable failure to comply with” the governor’s expectation “that public safety is also the top priority for all who operate [autonomous vehicle] technology in the state of Arizona.” Aptiv, the supplier of the radar and cameras for the Volvo, stated that Uber had disabled the Volvo’s standard advanced driver-assistance system.
In addition to the Arizona police, the incident is being investigated by two federal agencies. The first is the National Highway Traffic Safety Administration (NHTSA), which is part of the U.S. Department of Transportation. As part of its mission, the NHTSA is charged with writing and enforcing Federal Motor Vehicle Safety Standards, including the creation and maintenance of safety statistics. The NHTSA also licenses vehicle manufacturers and importers, and controls the importations of vehicles and safety-regulated vehicle parts. Investigations of accidents involving autonomous vehicles can involve the agency’s Special Crash Investigations Program, which will conduct the scene inspection, the vehicle inspection(s), and the interview(s) of the crash victims to “understand the real-world performance of emerging systems.”
The second federal agency is the National Transportation Safety Board, an independent investigatory agency of the U.S. government. With respect to autonomous vehicles, it has the authority to investigate accidents and determine the probable cause of the accidents. The NTSB also issues safety recommendations aimed at preventing future accidents. Typically, the vehicle manufacturer would be a party to the NTSB investigation and, pursuant to an agreement between the manufacturer and the NTSB, will be prohibited from releasing investigative information before it is vetted and confirmed by the NTSB. The NTSB has stated that its investigations typically take 12 to 24 months to complete. On May 24, 2018, the NTSB issued a Preliminary Report on the March 18 crash. Although the NTSB “continues to gather information on the Uber self-driving system, the vehicle interface, and the driver’s persona and business cell phones”, the four-page preliminary report stated that data obtained from the vehicle’s self-driving system
first registered radar and LIDAR observations of the pedestrian about six seconds before impact, when the vehicle was traveling at 43 mph. As the vehicle and pedestrian paths converged, the self-driving system software classified the pedestrian as an unknown object, as a vehicle, and then as a bicycle with varying expectations of future travel path. At 1.3 seconds before impact, the self-driving system determined that an emergency braking maneuver was needed to mitigate a collision . . . According to Uber, emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behaviour. The vehicle operator is relied on to intervene and take action. The system is not designed to alert the operator.
The preliminary report also found that the pedestrian was dressed in dark clothing, was pushing a bicycle that did not have side reflectors, and the bicycle’s front and rear reflectors could not be seen because they were perpendicular to the path of the oncoming vehicle. Signs facing toward the roadway warned pedestrians to use a crosswalk. The pedestrian’s post-accident toxicology test results were positive for both methamphetamine and marijuana.
California has passed five laws relating to autonomous vehicles, promulgated regulations for testing and deployment of owned or leased autonomous vehicles, and proposed regulations for autonomous vehicle passenger service with drivers and a pilot test program for driverless autonomous vehicle passenger service.
In 2012, California first enacted a law on safety and performance requirements for autonomous vehicles. The law defined an “autonomous vehicle” as “any vehicle equipped with autonomous technology that has been integrated into that vehicle” and expressly excluded park assist, lane departure warnings, and other systems that “are not capable, collectively or singularly, of driving the vehicle without the active control or monitoring of a human operator.” The law defines “autonomous technology” to mean “technology that has the capability to drive a vehicle without the active physical control or monitoring by a human operator.”
To be permitted to test autonomous vehicles on California’s public roads, California has three requirements:
- The autonomous vehicle is operated by the manufacturer’s employees, contractors or other authorised persons.
- The driver must be “in the driver’s seat, monitoring the safe operation of the autonomous vehicle, and capable of taking over immediate manual control of the autonomous vehicle in the event of an autonomous technology failure or other emergency.”
- The manufacturer provides evidence of $5 million in insurance, surety bond or self-insurance to the Department of Motor Vehicles.
In order to operate an autonomous vehicle on public roads, the manufacturer (defined as the person who manufacturers the autonomous vehicle or who installs autonomous technology) must submit an application to the Department of Motor Vehicles (DMV) and the DMV must approve it before operations may commence. The law requires the application to contain all of the following certifications by the manufacturer:
- The manufacturer will maintain a $5 million surety bond or self-insurance;
- The manufacturer has tested the autonomous technology on public roads in compliance with the DMV’s testing standards;
- The autonomous vehicle
- has a “mechanism to engage and disengage the autonomous technology that is easily accessible to the operator”;
- has a “visual indicator inside the cabin to indicate when the autonomous technology is engaged”;
- has a system to alert the operator of an autonomous technology failure when the technology is engaged and, upon the alter, either (a) the technology will require the operator to take control or (b) the vehicle must “be capable of coming to a complete stop”;
- must allow the operator “to take control in multiple manners, including, without limitation, through the use of the brake, the accelerator pedal, or the steering wheel”, and will alert the operator that the technology has been disengaged;
- has autonomous technology that meets, and does not make inoperative, the NHTSA’s Federal Motor Vehicle Safety Standards and all other applicable safety standards set forth in federal law and regulations; and
- has a “separate mechanism” to capture and store the sensor data “for at least 30 seconds before a collision occurs between the autonomous vehicle and another vehicle, object, or natural person while the vehicle is operating in autonomous mode. The sensor data must be captured and stored in read-only format and retained for three years after the date of the collision.”
With respect to privacy, the law requires the manufacturer of the autonomous technology to provide a written disclosure to the purchaser of the autonomous vehicle that “describes what information is collected by the autonomous technology equipped on the vehicle.”
The second California law was passed in 2016 and related solely to a pilot project to test autonomous vehicles by the Contra Costa Transportation Authority. The law will expire in October of 2018. The testing could be conducted only at a privately-owned business park and the vehicle could operate at speeds of less than 35 m.p.h. The certification to be filed with the Department of Motor Vehicles required several items, including that the vehicle be equipped with a communication link between the vehicle and remote operator “to provide information on the vehicle’s location and status and to allow two-way communication between the remote operator and any passengers if the vehicle experiences any failures that would endanger the safety of the vehicle’s passengers or other road users while operating without a driver.” The Transportation Authority “or a private entity, or a combination of the two” also had to submit a copy of a “law enforcement interaction plan”, to instruct law enforcement on how to interact with the vehicle in emergency and traffic enforcement situations. With respect to privacy, the law required the operator of the autonomous vehicle technology to disclose to any participant “what personal information, if any, concerning the pilot project participant is collected by an autonomous vehicle.” The law also permitted the DMV to require the operator to collect and report certain data, including a report of any accident “originating from the operation” of the vehicle that on a public road that resulted in personal injury, property damage, or death, with the report filed within 10 days of the accident. The DMV could also require an annual report summarizing information on “unplanned technology disengagements” that occurred during testing on public roads.
In October of 2017, California enacted a law to permit the Department of Transportation and the California Highway Patrol to conduct testing of platooning technologies. This law expires on January 1, 2020.
The fourth California law was also enacted in October of 2017. Almost identical to the second California law, it permits the Livermore Amador Valley Transit Authority to conduct testing in the city of Dublin, California. This law became inoperative on May 1, 2018.
The fifth California law was also enacted in October of 2017 and streamlined the first California law. This law repealed a requirement that the DMV notify the legislature of receipt of an application seeking approval to operate an autonomous vehicle, and repealed the requirement that the application could not be approved sooner than 180 days after submission. The law also required the DMV to provide a public notice of autonomous vehicle regulations and prohibited the DMV from approving an application until 30 days after public notice of the adopted regulations.
The DMV adopted regulations, which became effective in April of 2018. The regulations fall into two categories: testing autonomous vehicles and post-testing deployment of autonomous vehicles.
· DMV testing regulations
The regulations contain several definitions, including defining an “autonomous test vehicle” to mean SAE levels 3, 4, or 5. The regulations also define a “minimal risk condition” to mean a “low-risk operating condition” that the autonomous vehicle automatically resorts to when the automated driving system fails or when the human driver does not respond to a request to take over driving. A “manufacturer” means the manufacturer of the autonomous technology, which can include the vehicle manufacturer or a person who modifies any vehicle by installing autonomous technology. A “passenger” is defined to mean an occupant that has “no role in the operation of that vehicle” and may be a member of the public, provided “there are no fees charged to the passenger or compensation received by the manufacturer.” The regulations also contain a broad definition of “personal information”:
Information that the autonomous vehicle collects, generates, records, or stores in an electronic form that is not necessary for the safe operation of the vehicle, and that is linked or reasonably capable of being linked to the vehicle’s registered owner or lessee or passenger using the vehicle for transportation services.
Only manufacturers may conduct testing on California public roads. In order to conduct the tests, the manufacturers must:
- have test drivers who are manufacturer employees, contractors or designees that the manufacturer has certified to the California DMV are competent to operate the autonomous vehicle and are authorised to do so;
- have $5 million in insurance, surety bond, or a certificate of self-insurance as evidence that the manufacturer is able to respond to judgments “for damages for personal injury, death, or property damage arising from the operation of autonomous vehicles on public road”; and
- have received a testing permit from the DMV.
The application fee is $3,600, which permits the manufacturer to have up to 10 autonomous vehicles and 20 drivers in the test. For an additional $50 fee, the manufacturer can add an additional 1-10 autonomous vehicles and 1-20 drivers. The DMV also charges a $70 fee for modifications to the application.
The permit has a term of two years. The manufacturer may apply for renewal 60 days prior to the permit’s expiration date, plus payment of a $3,600 renewal fee.
California does not permit certain vehicles to be tested or deployed as autonomous vehicles, including motorcycles and vehicles with a gross vehicle weight rating of 10,001 or more pounds.
The manufacturer must maintain a training program for the drivers, and must provide a course outline and description of the training program to the DMV as part of the application. The training program must include:
- Instructions on the technology to be tested, including behind-the-wheel instruction by an experienced driver;
- Defensive driver training; and
- “Instruction that matches the level of the autonomous test driver’s experience . . . with the level of technical maturity of the automated system.”
California has some special additional requirements for driverless autonomous vehicle permits, although the $3,600 application fee remains the same and covers 10 autonomous vehicles. For the driverless autonomous vehicle permit, the manufacturer must certify all of the following:
- The manufacturer has provided the local law enforcement authorities (where the autonomous vehicles will be tested) with a notification containing all of the following;
- The “geographic areas, roadway type, speed type, speed range, environmental conditions (weather, daytime/nighttime, etc.) and other domain constraints”, which the regulation defines as the “operational design domain”;
- A list of the public roads the vehicle will use;
- The dates the testing will start;
- The dates and times of testing;
- The number and types of vehicles; and
- Contact information for the contact person of the manufacturer conducting the testing.
“A communications link between the vehicle and the remote operator that will allow two-way communications between the remote operator and any passenger if the vehicle experiences any failures that would endanger the safety of the vehicle’s passengers or other road users, or otherwise prevent the vehicle from functioning as intended, while operating without a driver.” This certification must include: (i) that the manufacturer will continuously monitor the status of the vehicle and the two-way communications link while the vehicle is in autonomous mode; (ii) a description of how the manufacturer will monitor the communications link; and (iii) an explanation of how all of the tested vehicles will be monitored.
“There is a process to display or communicate vehicle owner or operator information” if the vehicle is involved in a collision or there is another need to provide information to law enforcement.
The manufacturer has provided a copy of a “law enforcement interaction plan” instructing law enforcement, fire, and emergency medical personnel on how to interact with the vehicle in emergency and traffic enforcement situations. The plan must contain at least eight elements:
- How to communicate with the remote operator;
- Where in the vehicle to obtain owner information, vehicle registration, and proof of insurance;
- How to remove the vehicle safely from the roadway;
- How to recognise whether the vehicle is in autonomous mode, and how to disengage the autonomous mode safely;
- How to detect and ensure that the autonomous mode has actually been deactivated;
- How to interact safely with electric and hybrid vehicles;
- Description of the vehicle’s “operational design domain”; and
- Additional information the manufacturer deems necessary regarding hazardous conditions and public safety risks.
The manufacturer must maintain a training program for the remote operators, and certify that each operator “has completed training sufficient to enable him or her to safely execute the duties of a remote operator and possesses the proper class of license for the test vehicle”;
For manufacturers that have publicly disclosed an assessment demonstrating their approaches to achieving safety, the manufacturer must provide a copy to the DMV;
The manufacturer shall disclose to any passenger any “personal information” that may be collected about the passenger and how that information will be used.
A manufacturer must modify the permit application—at a $70 fee—prior to: changing a vehicle’s SAE operating level; changing the roadway types; increasing speed by more than 15 m.p.h.; or changing geographic areas.
The DMV may refuse a testing permit or a renewal for any violation of the regulations, or any violation of California’s autonomous vehicle law, or “for any act or omission of the manufacturer or one of its agents, employees, contractors, or designees which the department finds makes the conduct of autonomous vehicle testing on public roads by the manufacturer an unreasonable risk to the public.” The DMV may suspend or revoke a permit for those reasons and, for driverless autonomous vehicles, if the vehicle operates outside of the “operational design domain” specified in the permit application.
The manufacturer must report any collision including an autonomous vehicle “in any manner” that resulted in personal injury, property damage, or death, to the DMV within 10 days of the collision. The manufacturer must also collect and annually report to the DMV all “disengagements of the autonomous vehicles”, which are defined to mean:
A deactivation of the autonomous mode when a failure of the autonomous technology is detected or when the safe operation of the vehicle requires that the autonomous vehicle test driver disengage the autonomous mode and take immediate manual control of the vehicle, or in the care of driverless vehicles, when the safety of the vehicle, the occupants of the vehicle, or the public requires that the autonomous technology be deactivated.
The annual report, due on January 1 of each year, must include a summary of disengagements, including:
- Whether the test vehicle is capable of operating without a driver;
- The circumstances at the time of disengagement;
- Whether the vehicle was operating with or without a driver at the time of the disengagement;
- A description of the facts causing the disengagement, in plain language so that “a non-technical person can understand the circumstances triggering the disengagement”;
- The party that initiated the disengagement: the autonomous technology, the test driver, the remote operator, or a passenger;
- The total number of miles for each autonomous vehicle tested on public roads each month.
The regulation also states that no one may “drive, move or leave standing” an autonomous vehicle on a public road unless the DMV has been notified.
An application to transfer ownership of an autonomous test vehicle must include a “written description of the autonomous technology or features integrated into the vehicles.” In addition, the regulations state that no one may “offer for sale, sell, transfer or dispose” of an autonomous vehicle or “major component parts” used for testing on public roads unless the manufacturer has obtained a “Nonrepairable Vehicle Certificate” that ensures that “the vehicle is retitled or resold, and the ownership of the vehicle is transferred to an auto dismantler”, or the manufacturer has dismantled the vehicle itself. The manufacturer could also transfer the vehicle to an educational or research institute or a museum, for “display or study.”
Note that, following the Arizona collision, Uber withdrew its renewal application for a testing permit in California.
· DMV deployment regulations
California also promulgated regulations for the deployment (including sale and lease) of autonomous vehicles on public roads. The manufacturer may apply for a deployment permit for a fee of $3,275. The application requires much of the same information as the testing application, including the “operational design domain”, the financial requirements for manufacturers of any autonomous vehicles, and the two-way communications link for driverless autonomous vehicles, but adds some new requirements that the manufacturer must provide:
- Any “commonly-occurring or restricted conditions, including but not limited to: snow, fog, black ice, wet road surfaces, construction zones, and geo-fencing by location or road type, under which the vehicles are either designed to be incapable of operating or unable to operate reliably in the autonomous mode or state the mechanism for safely disengaging out of autonomous mode in the event of experiencing conditions outside of its operational design domain”;
- “How the vehicle is designed to react when it is outside of its operational design domain or encounters the commonly-occurring or restricted conditions disclosed on the application. Such reactions can include measures such as notifying and transitioning control to the driver, transitioning to a minimal risk condition, moving the vehicle a safe distance from the travel lanes, or activating systems that will allow the vehicle to continue operation under which it has reached a location where it can come to a complete stop”;
- Certification that the autonomous technology is “designed to detect and response to roadway situations”;
- Certification that the manufacturer will make updates available annually to the autonomous technology, and to the location and mapping information “on a continual basis consistent with changes to the physical environment captured by the maps sensors or other information.” The manufacturer must notify the registered owner of the availability of the updates and provide instructions on how to access the updates;
- Certification that the autonomous vehicles meet current industry standards “to help defend against, detect, and respond to cyber-attacks, unauthorised intrusions, or false vehicle control commands”;
- Certification that the manufacturer has conducted “test and validation methods”, and is satisfied that the autonomous vehicles “are safe for deployment on public roads in California.”
With respect to driverless autonomous vehicles, California has some additional requirements, including that the autonomous vehicle:
- Has the two-way communications link described above;
- Has the ability to “display or transfer” owner or operator information to law enforcement; and
- If the vehicle lacks manual controls (steering wheel, brakes, etc.), it complies with federal standards.
The manufacturer must also accompany any application with a consumer or end-user education plan that covers the autonomous vehicle’s “operational design domain” and includes:
- Any and all restrictions;
- A copy of the sections of the vehicle’s owner’s manual that provide information on the mechanism to engage and disengage the autonomous technology “showing that the mechanism is easily accessible to the vehicle’s operator; the visual indicator inside the vehicle showing that the autonomous technology is engaged; and the operator’s and manufacturer’s responsibilities with respect to the vehicle’s operation”;
- An explanation of how purchasers of previously owned autonomous vehicles will receive user education; and
- The URL where law enforcement and emergency response agencies can access the education plan at no cost.
With respect to SAE levels 4 and 5, and level 3 where the driver does not or is unable to take manual control of the vehicle, the manufacturer must include a description of how the vehicle will “safely come to a complete stop” if there is an autonomous technology failure, including moving the vehicle from the traffic lanes, and activation of systems that will allow the autonomous vehicle to operate until it has reached a location where it can stop.
In addition to the law enforcement interaction plan described above, the manufacturer must also provide a summary of its testing, including the total number of test miles driven in autonomous mode, a description of its testing methods, and the number of collisions resulting in property damage in excess of $1,000, or bodily injury or death, and a description of each collision and actions taken to remediate the cause of each collision.
The regulation outlines the procedure for a manufacturer to request a hearing to appeal the suspension or revocation of its permit. Note that the regulation expressly provides that a request for a hearing will not stay an order of suspension or revocation.
With respect to privacy, the manufacturer must either (a) provide a written disclosure to the driver, or to the passengers for driverless autonomous vehicles, describing the personal information collected by the autonomous technology “that is not necessary for the safe operation of the vehicles and how it will be used”, or (b) anonymize information not necessary for the safe operation of the vehicle. For vehicles sold or leased to consumers, where the information is not anonymized, the manufacturer must obtain the written approval of the owner/lessee to collect personal information. The manufacturer cannot deny use of the vehicle if the owner/lessee declines to provide that approval.
No manufacturer or agent may advertise an autonomous vehicle for sale or lease unless the vehicle meets the California definition of “autonomous vehicle” and it was manufactured by a manufacturer licensed by California and the manufacturer holds a DMV permit. Using terms in advertisements that “will likely induce a reasonably prudent person to believe a vehicle is autonomous” will constitute an “advertisement” governed by this section.
· California Public Utilities Commission
Photo from California Public Utilities Commission, Public Agenda 3417, at 33 (May 31, 2018), available at http://www.cpuc.ca.gov/uploadedfiles/ cpucwebsite/content/transparency/commission_meetings/presentations/2018/5-31-18_commeeting.pdf
The California Public Utilities Commission (PUC) regulates taxis and limousines, but not rental cars or leased cars. On May 31, 2018, the PUC issued regulations for authorizing free test rides to the public using autonomous vehicles with or without a driver present in the vehicle. The PUC had proposed the regulations in April, and issued them after receiving public comments.
The proposed requirements have some similarities to the DMV regulations described above, including the $5 million insurance requirement, but there are several differences, briefly summarized below:
- The test autonomous vehicle would have to have been in operation for 30 days pursuant to a test permit;
- Like the DMV, the PUC requires that the manufacturer cannot accept compensation from passengers, but the PUC has stated that “compensation” includes not only economic benefits but also “rider feedback or public brand recognition.” In response to comments, the PUC stated that the purpose of this rule “during the pilot program is to differentiate it from the final program and to obtain valuable feedback and data from all members of the public. This information will better inform the Commission’s further decisions regarding AVs.”
With respect to driverless autonomous vehicles, the PUC has several new proposals for the manufacturer to provide:
- A plan describing how the manufacturer “will provide notice to the passenger that they are being offered Drivered AV Passenger Service, and how the passenger will affirmatively consent or decline the services.”
- Quarterly reports including total miles traveled but also vehicle occupancy, total number of accessible rides requested, and the number of such unfilled requests because of a lack of accessible vehicles.
- “A means by which the passenger explicitly consents by electronic or written confirmation” to receive driverless service—and the consumer should be provided a photo of the vehicle during the consent process.
- Driverless AV Passenger Services are “prohibited to, from, or within airports.”
- A description of how the manufacturer will limit use of the vehicle to one chartering party at a time (no ride-sharing).
- A description of how the entity will ensure that the driverless vehicle will be chartered only by adults 18 years of age or older.
- Recording of “all communications between passengers and remote operators while each vehicle is providing passenger services [in autonomous mode] and retain the recordings for one year from the date of the communication.” The operator must supply the recordings to the PUC upon request.
The PUC has stated that it anticipates issuing a proposed decision on permanently deploying autonomous vehicle passenger service in the first quarter of 2019.
Michigan first enacted a law on autonomous vehicles in December of 2013. It provided liability protections to OEMs if downstream modifications were made to the vehicle by “another person.” AV manufacturers would not be liable if:
- the conversion or attempted conversion of the vehicle into an automated motor vehicle was done by another person.
- the installation of equipment in the vehicle to convert it into an automated motor vehicle was done by another person; or
- the modification by another person of equipment that was installed by the manufacturer in an automated motor vehicle specifically for using the vehicle in automatic mode.
Similarly, under this law, system producers would not be liable in a product liability action for “damages resulting from the modification of equipment installed by that producer to convert the vehicle to an automated motor vehicle unless the defect from which the damages resulted was present in the equipment when it was installed by the subcomponent system producer.”
A second Michigan law also passed in December of 2013. This more comprehensive law defined an “automated motor vehicle” as follows:
(2) "Automated motor vehicle" means a motor vehicle on which an automated driving system has been installed, either by a manufacturer of automated driving systems or an upfitter that enables the motor vehicle to be operated without any control or monitoring by a human operator. Automated motor vehicle does not include a motor vehicle enabled with one or more active safety systems or operator assistance systems, including, but not limited to, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane-keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless one or more of these technologies alone or in combination with other systems enable the vehicle on which any active safety systems or operator assistance systems are installed to operate without any control or monitoring by an operator.
An “upfitter” is someone who installs an automated driving system in a motor vehicle to convert it to an automated motor vehicle.
The law described the registration, sale, transport, and licensure of automated motor vehicles. Many of the provisions have been superseded by 2016 laws described below, but a few provisions remain in effect:
Manufacturers and dealers may transport the vehicles and operate them on public streets for no more than 72 hours, provided the vehicles have dealer plates.
“A manufacturer of automated technology is immune from civil liability for damages that arise out of any modification made by another person to a motor vehicle or an automated motor vehicle, or to any automated technology.” The law defines “automated technology” as “technology installed on a motor vehicle that has the capability to assist, make decisions for, or replace an operator.” In other words, the law apparently intends to shield technology manufacturers from liability if the technology is hacked.
In 2016, Michigan enacted four laws relating to automated motor vehicles. One law retained the liability limitations of the first 2013 law, but added a shield for mechanics and repair facilities. As long as they repair the vehicles according to manufacturer’s specifications, the repair provider “is not liable in a product liability action for damages resulting from the repairs.”
The 2016 laws contained only a few brief provisions that permit cities and towns to contract with owners/operators of private roads open to the general public. The contract would permit law enforcement to enforce the Michigan laws with the owner’s/operator’s consent on those private roads.
The 2016 laws expand the ability of motor vehicle manufacturers to make automated motor vehicles available to the public under certain circumstances, through an initiative that Michigan has named the “SAVE project.” In order to participate in the SAVE project, manufacturers (and only manufacturers) may self-certify to the department that the manufacturer owns or controls each vehicle in the project and each vehicle is equipped with:
- An automated driving system;
- Automatic crash notification technology; and
- A data recording system that has the capacity to record the automated driving system’s status and other vehicle attributes including, but not limited to, speed, direction, and location during a specified time period before a crash as determined by the motor vehicle manufacturer.
The manufacturer must also self-certify that the vehicles comply with all applicable state and federal laws. The manufacturer must also specify the geographical boundaries for the project, and the vehicles will be confined to that area. For the duration of the project, the manufacturer must maintain “incident records and provide periodic summaries related to the safety and efficacy of travel of the participating fleet to the department and the National Highway Traffic Safety Administration.”
These 2016 laws also address privacy and liability issues. With respect to privacy, the law states that any individual participating in the SAVE project “is deemed by his or her participation to have consented to the collection of the information” relating the incident records and safety/efficacy summaries. The manufacturer must make its privacy statement publicly available prior to commencing a SAVE project. The law also deemed that the automated driving system or “any remote or expert-controlled assist activity” shall be deemed to be the “driver” and shall be “deemed to satisfy electronically all physical acts required by a driver or operator of the vehicle.” The manufacturer must insure each vehicle in accordance with Michigan law. Finally, for each SAVE project in which it participates, during the time that an automated driving system is in control of a vehicle in the participating fleet, a motor vehicle manufacturer shall assume liability for each incident in which the automated driving system is at fault, subject to [the insurance code].
The 2016 laws also include several provisions, including those relating to research and testing requirements, platooning, texting while driving and, importantly, some definitions. The law retains the definition of “automated motor vehicle” described above, but adds this definition of “manufacturer”: “a person that has manufactured and distributed motor vehicles in the United States that are certified to comply with all applicable federal motor vehicle safety standards and that has submitted appropriate manufacturer identification in to the [NHTSA].” In addition, with respect to the SAVE program, the definition of “motor vehicle manufacturer” must meet three requirements:
- The person has manufactured automated motor vehicles in the United States that are certified to comply with all applicable federal motor vehicle safety standards.
- The person has operated automated motor vehicles using a test driver and with an automated driving system engaged on public roads in the United States for at least 1,000,000 miles.
- The person has obtained an instrument of insurance, surety bond, or proof of self-insurance in the amount of at least $10,000,000.00 and has provided evidence of that insurance, surety bond, or self-insurance to the department in the form and manner required by the department.
The SAVE program manufacturers are also addressed in another provision relating to liability:
“A manufacturer of automated driving technology, an automated driving system, or a motor vehicle is immune from liability that arises out of any modification made to a motor vehicle, an automated motor vehicle, an automated driving system, or automated driving technology by another person without the manufacturer’s consent.”
Note, however, this provision does not supersede or otherwise affect “the contractual obligations, if any, between a motor vehicle manufacturer and a manufacturer of automated driving systems or a manufacturer of automated driving technology.”
The law defines an “automated driving system” (in general and not only for the SAVE program) as:
Automated driving system means hardware and software that are collectively capable of performing all aspects of the dynamic driving task for a vehicle on a part-time or full-time basis without any supervision by a human operator. As used in this subsection, “dynamic driving task” means all of the following, but does not include strategic aspects of a driving task, including, but not limited to, determining destinations or waypoints:
- Operational aspects, including, but not limited to, steering, braking, accelerating, and monitoring the vehicle and the roadway.
- Tactical aspects, including but not limited to, responding to events, determining when to change lanes, turning, using signals, and other related actions.
With respect to “platooning”, the law expressly permits the activity, but requires that the person operating the platoon must file a plan with a department of state police and state transportation department at least 30 days in advance of operations. The platoon may commence after the 30-day period unless either department rejects the plan. With respect to trucks and truck tractors, the law specifies that if such a vehicle is in a platoon it “shall allow reasonable access for other vehicles to afford those vehicles safe movement among lanes to exit or enter the highway.”
Michigan, like most states, prohibits drivers from talking on a handheld wireless communication device or sending text messages. The 2016 laws expressly permit the use of those devices when an individual is using them to “operate or program the operation of an automated motor vehicle while testing or operating the automated motor vehicle without a human operator.”
With respect to research or testing on state highways or streets of automated motor vehicles, automated driving systems installed on a motor vehicle or “technology that allows a motor vehicle to operate without a human operator”, Michigan requires:
- The manufacturer or upfitter provide proof of insurance on the vehicle to the secretary of state;
- That the vehicle is operated by an employee, contractor or other person authorised by the manufacturer of automated driving systems or upfitter and that person may lawfully operate a motor vehicle in the U.S. That person has the ability to monitor the vehicle’s performance and, if necessary “promptly take control of the vehicle’s movements.” “If the individual does not, or is unable to, take control of the vehicle, the vehicle shall be capable of achieving a minimal risk condition.”
The law also states that the automated driving system, when engaged and allowing for operation without a human operator, shall be deemed to be the driver and to “satisfy electronically all physical acts required by a driver or operator of the vehicle.”
(iv) New York
New York enacted a law on autonomous vehicles in 2017 and amended that law in 2018. The 2017 law granted the New York State Commissioner of Motor Vehicles the power to approve demonstrations and tests of vehicles equipped with “autonomous vehicle technology.” The law defines “autonomous vehicle technology” as “the hardware and software that are collectively capable of performing part or all of the dynamic driving task on a sustained basis.” The law defines “dynamic driving task” as “all of the real-time operational and tactical functions required to operate a vehicle in on-road traffic, excluding the strategic functions such as trip scheduling and selection of destinations and waypoints.” Note that the “part of all of the dynamic driving task” in the definition of “autonomous vehicle technology” appears to create some ambiguity because it could be interpreted to include even cruise control technology.
New York requires that all demonstrations and tests take place “under the direct supervision of the New York state police.” The law states that the demonstrations and tests must take place in the form and manner prescribed by the Commissioner of Motor Vehicles, but the law contains three requirements:
- A person holding a valid license for the operation of vehicle class be present at all times it is operated on public highways;
- The vehicle must comply with all applicable federal motor vehicle safety standards and New York state motor vehicle inspection standards; and
- The vehicle has in place “at a minimum, financial security in the amount of five million dollars.”
The 2017 law expired on April 1, 2018. The 2018 amendment extended the law until April 1, 2019. The amendment also granted the New York State Police Superintent the power to prescribe the form and manner of the demonstrations and testing. The amendment also required a “law enforcement interaction plan” to be included as part of the application. That plan must include “information for law enforcement and first responders regarding how to interact with such a vehicle in emergency and traffic enforcement situations.”
The New York Department of Motor Vehicles has made its application for an autonomous vehicle demonstration/testing permit available online. The application includes the requirements of the statute (including proof of insurance or self-insurance) and adds requirements that the person holding the valid driver’s license must be in the driver’s seat while the vehicle is operated on public highways and must be prepared to take control if required in order to operate the vehicle “safely and lawfully.” The application also requires that every vehicle operator must be “adequately trained in the safe operation of test vehicle to ensure both legal and safe operation.” In addition, the applicant must specify routing information for the demonstration test, including:
- Date and time;
- Origin and destination;
- Sequence of road intended to be traveled; and
- Total routing distance in miles to the nearest 1/10 mile.
The application form specifies that it may be completed only by manufacturers of “autonomous vehicle technology” or “entities creating such technology working in conjunction with manufacturers.” The application also requires that the appliance submit a report to the Commissioner of Motor Vehicles no later than March 1. The report must include:
- The purpose of the demonstrations/tests;
- The date(s) on which they were performed;
- A description of the parameters of the demonstrations/tests;
- The location(s) where they occurred;
- Total miles traveled with the autonomous technology engaged; and
- “Any findings relating to impact on
- Traffic control,
- Traffic enforcement, or
In the addendum to the application, the applicant also agrees to reimburse the police for their direct supervision at a rate of $92.73/hour ($131.67/hour for overtime) plus 53.5 cents/mile.
The addendum to the application states that the “supervising member of the New York State Police is authorised to terminate such demonstration/testing if that member believes continued operation is a threat to safety. If the demonstration/testing jeopardizes safety, the entity applying to demonstrate/test shall assume any and all liability associated.” Note that the New York statute did not address liability and, unlike Michigan, New York does not assign liability only for “fault”, but rather if the vehicle “jeopardizes safety.”
D. Insurance update
Norton Rose Fulbright
Tel+ 1 212 855 8121
Sr. Associate, Houston
Norton Rose Fulbright
Tel+ 1 713 651 3734
In the Second Edition of our Autonomous Vehicle White Paper, we addressed how autonomous vehicles would affect the insurance industry. We focused on how increased automobile safety, changes in vehicle ownership, and shifts in liability for accidents could affect the insurance industry, as well as how insurers could adapt to changes in the insurance market. Since drafting that edition, there have been several particularly relevant developments. First, several state laws and executive orders addressing insurance for autonomous vehicles have taken effect. Second, several autonomous vehicle accidents have emerged as potential case studies on how liability will be apportioned among potential tortfeasors. Third, more insurance companies have demonstrated their ability to adapt to and even lead the autonomous vehicle revolution.
(i) Changes to State Law
Since the Second Edition was drafted, laws related to insurance for autonomous vehicles have taken effect in several states:
- Connecticut and California have adopted the NHTSA’s September 2016 recommendation that states require autonomous vehicle testers to provide proof of “an instrument of insurance, a surety bond, or proof of self-insurance, for no less than five million U.S. dollars.”
- Nevada also adopted the $5 million insurance requirement, but only as to highway testing. Additionally, Nevada requires autonomous vehicle network companies to maintain insurance in the amount of $1.5 million or more for bodily injury, death, injury to property, or destruction of property for any accident that occurs while the company’s fully autonomous vehicle is providing transportation services.
- In Georgia, a person who causes a fully autonomous vehicle to move or travel with the automated driving system engaged, without a human driver present inside the vehicle, must have motor vehicle liability coverage that is 250% of what is typically required of a limousine carrier until December 31, 2019, but only an amount equal to what is required of a limousine carrier after that date.
- Michigan requires autonomous vehicle manufacturers to submit proof of insurance to the Secretary of State, but does not require that the insurance be for a particular dollar amount.
- Texas law provides any cars using automated driving systems on a highway must be “covered by motor vehicle liability coverage or self-insurance in an amount equal to the amount of coverage that is required under the laws of this state.”
Other states have recently addressed autonomous vehicle insurance by executive order, but only to a limited extent. Arizona, Maine, and Washington now permit some degree of autonomous vehicle operation on public roads, provided that testers provide proof of insurance. However, the executive orders do not address how much insurance coverage is required. Ostensibly, the same insurance requirements applicable to traditional vehicles would apply.
In total, at least 22 states have enacted legislation related to autonomous vehicles, and governors in 10 states have issued executive orders related to autonomous vehicles. Given that only a handful of these laws, orders, or announcements address insurance, and that the ones that do address insurance have little to say on that topic, we should expect to see increasing state legislation and regulation in this area.
(ii) Recent autonomous vehicle accidents and lawsuits
As discussed in the Second Edition, the determination of who bears liability in the event of autonomous vehicle accidents will have profound implications for the automobile insurance industry. As the use of autonomous technology increases, there may be increased liability placed upon autonomous vehicle manufacturers. However, the law remains underdeveloped in this area.
So far, the first highly-publicized accident involving a semi-autonomous vehicle has yielded only hints as to how liability might be imposed in a similar situation. In our previous white paper, we described a fatal accident in which a semi-autonomous Tesla using the Autopilot system crashed into a truck in Florida in May 2016. In September 2017, the family released a statement that seemed to suggest the family did not blame Tesla for the accident. Among other things, the family stated, “We heard numerous times that the car killed our son. That is simply not the case. . . .” Tesla and the family declined to say whether a settlement had been reached. To date, no lawsuit has been filed.
Shortly after the family issued its statement, the National Transportation Safety Board conducted a hearing as part of its investigation of the accident. The NTSB’s final report suggested that the truck driver, the Tesla driver, and the Tesla’s design may all have contributed to the accident:
The National Transportation Safety Board determines that the probable cause of the Williston, Florida, crash was the truck driver’s failure to yield the right of way to the car, combined with the car driver’s inattention due to overreliance on vehicle automation, which resulted in the car driver’s lack of reaction to the presence of the truck. Contributing to the car driver’s overreliance on the vehicle automation was its operational design, which permitted his prolonged disengagement from the driving task and his use of the automation in ways inconsistent with guidance and warnings from the manufacturer.
While the NTSB’s report demonstrates how a fact-finder might analyze a similar accident, the report stated that “[t]he NTSB does not assign fault or blame for an accident or incident. . . .” Per federal regulation, NTSB investigations “are fact-finding proceedings with no formal issues and no adverse parties. . . and are not conducted for the purpose of determining the rights or liability of any person.” Thus, which party or parties bear legal liability for the fatal Tesla crash in May 2016 remains undetermined.
Other more recent accidents have not yet—but may eventually—shed light on how liability will be imposed when autonomous vehicles are at issue. On December 30, 2016, a Tesla owner and his son filed a class action complaint against Tesla alleging breaches of warranties, strict products liability, and negligence, among other causes of action. The Tesla owner and his son allege that the owner’s Tesla Model X experienced sudden unintended acceleration (“SUA”) while the owner was parking the Tesla in his garage, causing the Tesla to crash into the owner’s living room and injuring both plaintiffs. Since then, six other plaintiffs have joined the lawsuit. The plaintiffs argue that “Tesla has failed to properly disclose, explain, fix, or program safeguards to correct” any SUA problem, and that such failure “is even more confounding when the vehicle is already equipped with the hardware necessary for the vehicle’s computer to be able to intercede to prevent unintended acceleration into fixed objects such as walls, fences, and buildings.” The plaintiffs also cite Tesla’s Automatic Emergency Braking system, which they assert was marketed with claims it would “prevent accidents” and “reduce the impact of an unavoidable frontal collision.”
On January 22, 2018, a motorcyclist filed a negligence claim against General Motors. The plaintiff alleges that he was injured when a self-driving Chevrolet Bolt manufactured by General Motors veered into his lane, struck him, and caused him to suffer neck and shoulder injuries. The plaintiff has not sued the individual sitting in the driver’s seat of the Chevrolet Bolt.
On March 18, 2018, a pedestrian died after she was struck by an autonomous Uber Volvo XC90 in Tempe, Arizona, while crossing a highway at night outside of a crosswalk. The Tempe police chief said that, based on videos of the incident, “it’s very clear it would have been difficult to avoid this collision in any kind of mode (autonomous or human-driven) based on how [the pedestrian] came from the shadows right into the roadway.” Although the police chief stated that “Uber would likely not be at fault”, she also stated that she “[would not] rule out the potential to file charges against the [backup driver] in the Uber vehicle.” It is no surprise that finger-pointing began quickly after the accident. Arizona governor Doug Ducey suspended Uber’s ability to conduct autonomous vehicle testing, stating that the incident was “an unquestionable failure to comply with” the governor’s expectation “that public safety is also the top priority for all who operate [autonomous vehicle] technology in the state of Arizona.” Aptiv, the supplier of the radar and camera for the Volvo, stated that Uber had disabled the Volvo’s standard advanced driver-assistance system.
Tempe police released videos from the Volvo’s dashboard camera showing the moments leading up to the pedestrian’s death. That video has sparked a great deal of commentary on what party or parties may be at fault for the incident. Some commentators have suggested that, even if the pedestrian was not visible to the human eye for long enough to allow a human driver to brake before impact, the vehicle’s technology should have sensed and reacted to the pedestrian as she approached the vehicle’s lane. This argument begs the question of whether human drivers and autonomous vehicles should be held to the same standards. In other words, is reasonable care for a human driver a lower bar than reasonable care for an autonomous vehicle? There is no easy answer to this question, and those interested in the answer will have to monitor how this issue is eventually addressed in the courts.
These actual and potential lawsuits are likely just the beginning of lawsuits that will test how liability may be apportioned between autonomous vehicle manufacturers and individuals sitting in the driver’s seat of those vehicles. Insurance companies should pay attention to these lawsuits, assess any trends that develop, and monitor any precedent the lawsuits may set relevant to how liability is imposed.
(iii) Insurers as Leaders in Driving the Autonomous Vehicle Revolution
In the Second Edition, we described how insurers could adapt quickly—and how some already were adapting—to the development of autonomous vehicles. Many insurers are doing so by diversifying their product lines and even creating opportunities beyond traditional insurance products.
Several insurers have already partnered with autonomous vehicle manufacturers to offer new product lines. In October 2017, Liberty Mutual and Tesla announced their “InsureMyTesla” plan to provide insurance customized for Tesla vehicles—all of which Tesla says “have the hardware needed for full self-driving capability. . . .” Although availability varies by state, Tesla advertises, among other things, a guaranteed insurance rate for the first year and replacement of the car if there is a total loss in the first year. Tesla’s goal is to eventually offer a single price for the car, maintenance, and insurance.
Two months after Tesla and Liberty Mutual’s announcement, Trov (a licensed insurance broker) and Waymo (formerly Google’s self-driving car project) also announced a partnership. Trov will provide trip-based insurance coverage to Waymo riders through a non-admitted affiliate of Munich Re. The insurance will cover lost property, trip interruption, and medical expenses resulting from Waymo rides for passengers in Waymo’s upcoming commercial ridehailing service in Phoenix, Arizona. The details of the insurance program have not been publicly released, but it is likely that Trov will build off of its existing platform, which allows policyholders to toggle coverage for valuable personal items on and off as desired through applications on their mobile devices. Trov’s CEO, Scott Walchek, views this partnership as “the convergence of the future of transportation with the future of insurance.”
Many insurers are wasting no time in developing new ways to assess autonomous vehicle risk. Indeed, many have already applied for and obtained patents related to processing data for determining autonomous vehicle insurance coverage. As a recent example, in November 2017, State Farm Automobile Insurance Company filed a patent application for determining the effectiveness of autonomous features of a vehicle in order to determine insurance pricing. Developing and protecting systems to evaluate risk and appropriately price autonomous vehicle insurance policies is an important step in adapting to the changing auto insurance market.
Some insurance companies are pursuing opportunities beyond the sale of insurance products. Allstate Insurance Company’s Chairman and CEO Thomas J. Wilson has said that new technologies, like autonomous cars, “create tremendous opportunity for a company with Allstate’s market position, customer relationships, capabilities and financial resources.” Indeed, Allstate is already using these advantages to create opportunities outside of insurance. In November 2016, Allstate announced the creation of Arity, a technology startup company. Arity advertises that it “design[s] solutions to help optimize [original equipment manufacturers’] telematics, [advanced driver-assistance systems] and vehicle safety systems, enhance infrastructure planning and improve safety in new forms of mobility, like autonomous vehicles.” In February 2018, Allstate obtained a patent related “to controlling autonomous vehicles to provide automated emergency response functions.” The patent states that a “computing platform may detect an occurrence of an emergency at a location” and then send “dispatch commands directing the autonomous vehicle to move to the location and execute  one or more emergency response functions.” These diversification initiatives are expected to help Allstate mitigate the challenges autonomous vehicles pose to traditional automobile insurance.
The pace of adaptation to autonomous vehicle technology is quickly accelerating. Insurers should keep an eye on the development of law and policy regarding insurance for autonomous vehicles by monitoring legislation, regulation, and judicial precedent. Even better, insurers can help guide change through active involvement with autonomous vehicle development and early formation of innovative insurance practices and products. Insurers that effectively lead the implementation of autonomous vehicle technologies and the systems necessary to support them have the most to gain.
 They are Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Louisiana, Michigan, New York, Nevada, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and Vermont, and Washington, D.C.
 Governors in these states have issued executive orders relating to autonomous vehicles: Arizona, Delaware, Hawaii, Idaho, Maine, Massachusetts, Minnesota, Ohio, Virginia, Washington and Wisconsin.
 A template for the voluntary safety self-assessment can be found on the NHTSA’s website. The 12 substantive areas of guidance are: (1) safety systems; (2) operational design domain; (3) object and event detection and response; (4) fallback (minimal risk condition); (5) validation methods; (6) human machine interface; (7) vehicle cybersecurity; (8) crashworthiness; (9) post-crash automated driving system behaviour; (10) data recording; (11) consumer education and training; and (12) ensuring compliance federal, state, and local laws.
 In contrast, recall that NHTSA’s A Vision for Safety covered twelve (12) substantive areas but was expressly voluntary. Though different in number, the AV START Act’s nine areas are largely similar to those of a Vision for Safety: (1) system safety; (2) data recording; (3) cybersecurity; (4) human-machine interface; (5) crashworthiness; (6) capabilities; (7) post-crash behaviour; (8) account for applicable laws; and (9) automation function.
 The House’s SELF DRIVE Act also contains a section requiring a privacy plan.
 Having gone into effect on April 2, 2018, these new regulations can be found in the California Code of Regulations, Title 13, Division 1, Chapter 1, Articles 3.7 and 3.8.
 Senate Bill 2205 amended Chapter 545 of the Texas Transportation Code to include Subchapter J “Operation of Automated Motor Vehicles.” The new law states that “an automated motor vehicle may operate in this state with the automated driving system engaged, regardless of whether a human operator is physically present in the vehicle.” The new legislation defines the owner of the automated driving system as the “operator of the automated motor vehicle” and provides that “the automated driving system is considered to be licensed to operate the vehicle.” Texas allows fully autonomous vehicles access to public roads—with or without a human operator in the vehicle—if the car merely: (1) is capable of operating in compliance with state traffic and motor vehicle laws; (2) is equipped with a recording device; (3) satisfies the federal motor vehicle safety standards; (4) is registered and titled in accordance with Texas law; and (5) is covered by motor vehicle liability coverage.
 National Transp. Safety Bd., Preliminary Report, Highway, HWY18MH010 (May 24, 2018), available at https://www.ntsb.gov/investigations/AccidentReports/Reports/HWY18MH010-prelim.pdf.
 Under the PUC’s original proposal, the time period was 90 days, rather than 30.
 Under the PUC’s original proposal, the reports were due each month, which changed to quarterly following public comments.
 Originally, the PUC proposed that the manufacturer must report to the PUC “within 24 hours all communications from the passenger in the vehicle with the remote operator while Driverless AV Service was being provided. The entity shall submit a public version and a confidential version of all such communications.”
 Compare National Highway Traffic Safety Administration, Federal Automated Vehicles Policy, U.S. Department of Transportation, 42 (September 2016), available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/federal_automated_vehicles_policy.pdf (last visited March 14, 2018), with C.G.S.A. § 13a-260(d)(1) (West 2017), Cal. Vehicle Code § 38756(a) (West 2018), and Cal. Vehicle Code § 38755(a) (West 2017).
 Nev. Rev. Stat. § 428A.060 (West 2017).
 “Autonomous vehicle network company” is defined as “an entity that, for compensation, connects a passenger to a fully autonomous vehicle which can provide transportation services to the passenger.” Nev. Rev. Stat. AB 69, § 14.24 (West 2017).
 Nev. Rev. Stat. AB 69, § 14.9 (West 2017).
 Ga. Code. Ann., § 40-8-11(4) (West 2017).
 Mich. Comp. Laws § 257.665(1) (2016).
 Tex. Transp. Code § 545.454(b)(5) (West 2018).
 Ariz. Exec. Order 2018-04 § 6(d) (Mar. 1, 2018), available at https://azgovernor.gov/sites/default/files/related-docs/eo2018-04_1.pdf; Me. Exec. Order 2018-001 (Jan. 17, 2018), http://www.maine.gov/tools/whatsnew/index.php?topic=Gov_Executive_Orders&id=776188&v=article2011; Wash. Exec. Order 17-02 (Jun. 7, 2017), http://governor.wa.gov/sites/default/files/exe_order/17-02AutonomouVehicles.pdf.
 Autonomous Vehicles | Self-Driving Vehicles Enacted Legislation, National Conference of State Legislatures (March 12, 2018), available at http://www.ncsl.org/research/transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.aspx (last visited March 27, 2018).
 See Landskroner Grieco Merriman Issues Statement on Behalf of the Family of Joshua Brown, Landskroner Grieco Merriman, LLC, available at https://www.teamlgm.com/case-filings-recent-verdicts-press-releases#family (last visited March 14, 2018).
 Reuters, Driver’s family doesn’t blame Tesla for fatal ‘autopilot’ crash, New York Post (September 11, 2017), available at https://nypost.com/2017/09/11/drivers-family-doesnt-blame-tesla-for-fatal-autopilot-crash/ (last visited March 14, 2018).
 Highway Accident Report NTSB/HAR-17/02: Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida, May 7, 2016, National Transportation Safety Board, at vi (October 12, 2017), available at https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf (last visited March 14, 2018).
 Id. at introduction.
 49.C.F.R. 831.4 (2017).
 Class Action Compl., Son et al. v. Tesla Motors, Inc., No. 8:16-cv-2282 (C.D. Cal. Dec. 30, 2016), ECF No. 1.
 Second Am. Class Action Compl., ¶¶ 36-38, Son et al. v. Tesla Motors, Inc., No. 8:16-cv-2282 (C.D. Cal. Jun. 27, 2017), ECF No. 40.
 Compare Class Action Compl., supra note 19, at 1, with Second Am. Class Action Compl., supra note 20, at 1.
 Second Am. Compl., supra note 20, at ¶¶ 30-31.
 Id. at ¶¶ 69, 71.
 Compl. for Damages, Nilsson v. General Motors LLC, No. 4:18-cv-00471 (N.D. Cal. Jan. 22, 2018), ECF No. 1.
 Id. at ¶¶ 5-13.
 Carolyn Said, Exclusive: Tempe police chief says early probe shows no fault by Uber, San Francisco Chronicle (March 19, 2018), available at https://www.sfchronicle.com/business/article/Exclusive-Tempe-police-chief-says-early-probe-12765481.php (last visited March 27, 2018).
 Gabrielle Coppola and Ian King, Uber Disabled Volvo SUV’s Safety System Before Fatality, Bloomberg (March 26, 2018), available at https://www.bloomberg.com/news/articles/2018-03-26/uber-disabled-volvo-suv-s-standard-safety-system-before-fatality (last visited March 27, 2018).
 See, e.g., Troy Griggs and Daisuke Wakabayashi, How a Self-Driving Uber Killed a Pedestrian in Arizona, The New York Times (March 21, 2018), available at https://www.nytimes.com/interactive/2018/03/20/us/self-driving-uber-pedestrian-killed.html (March 27, 2018).
 Danielle Muoio, Tesla strikes another deal that shows it’s about to turn the car insurance world upside down (October 21, 2017), Business Insider, available at http://www.businessinsider.com/tesla-liberty-mutual-create-customize-insurance-package-2017-10 (last visited March 12, 2018); Autopilot, Tesla, available at https://www.tesla.com/autopilot (last visited March 12, 2018).
 Danielle Muoio, Tesla wants to sell future cars with insurance and maintenance included in the price, Business Insider (February 23, 2017), available at http://www.businessinsider.com/tesla-cars-could-come-with-insurance-maintenance-included-2017-2 (last visited March 12, 2018).
 Trov, Trov and Waymo Partner to Launch Insurance for Ride-Hailing, PRNewswire (Dec. 19, 2017), available at https://www.prnewswire.com/news-releases/trov-and-waymo-partner-to-launch-insurance-for-ride-hailing-300573229.html (last visited March 14, 2018).
 Scott Walchek, Trov + Waymo: Accelerating Trov’s Bigger Picture, Trov (Dec. 19, 2017), available at https://www.trov.com/blog/trov-waymo-accelerating-trovs-bigger-picture (last visited March 14, 2018).
 Darrell Etherington, Waymo Teams with Trov on passenger insurance for self-driving service, TechCrunch (December 19, 2017), available at https://techcrunch.com/2017/12/19/waymo-teams-with-trov-on-passenger-insurance-for-self-driving-service/ (last visited March 9, 2018); Lyle Adriano, Trov and Waymo collaborate on ridehailing insurance program, Insurance Business America (December 20, 2017), available at https://www.insurancebusinessmag.com/us/news/technology/trov-and-waymo-collaborate-on-ridehailing-insurance-program-88167.aspx (last visited March 9, 2018); Trov, supra note 29.
 Trov, supra note 29.
 U.S. Patent Appl. No. 20180075538 (filed Nov. 8, 2017).
 Thomas J. Wilson, Letter to Shareholders, Allstate (April 6, 2015), available at http://media.corporate-ir.net/media_files/IROL/93/93125/ALL_AR_2014/letter-to-shareholders/ (last visited March 15, 2018).
 Allstate Launches Tech Startup Arity to Power Transportation Analytics and Innovation, Allstate (November 10, 2016), available at https://www.allstatenewsroom.com/news/allstate-launches-tech-startup-arity-to-power-transportation-analytics-and-innovation/ (last visited Mach 15, 2018).
 Accident Prediction. Automotive Solutions, Arity, available at https://www.arity.com/industries/automotive-solutions/ (last visited March 12, 2018).
 U.S. Patent No. 9905133 (filed Sep. 30, 2016).