The race to develop and deploy highly automated vehicles (HAVs) is well underway.
If you live in Arizona, you can catch an HAV ride of your own. Simultaneously, the push to establish rules and regulations to govern HAV behavior, and the activity of the firms that build and operate them, is proceeding at a pace of its own.
For attorneys advising clients in this space, that means keeping an eye out for new law, sometimes opaque informal regulatory guidance, and the day-to-day pulse of regulators.
Here are a few practice tips for practitioners looking to keep their HAV clients on the road:
1. Federal, State, Local: Where Should Attorneys Look for Rules of the Road?
There are dramatic differences in HAV technology along the SAE continuum of automation. For that reason, the scope of development and deployment projects entertained by your client will, as a technical matter, vary widely. No less diverse are the regulatory environments that confront those projects. Federal, state, and even local authorities have each assumed roles in the oversight of the technology, making each testing and deployment plan a unique undertaking.
Federally, statutes specifically related to HAVs are easy enough to comply with—there are none. Instead, with last session’s failure of the AV START Act, existing bodies of federal safety regulation continue to control. For purposes of systems not contemplated by Federal Motor Vehicle Safety Standards (FMVSS), interpretive guidance from Department of Transportation entities largely governs.
States are another matter entirely. No uniform approach to HAV permitting or oversight has been adopted by the various labs of democracy. California regulators—of which there are several—maintain utterly different expectations than do regulators in Arizona, Texas, North Carolina, or any number of other jurisdictions.
Yet, unlike their federal counterparts, state HAV regulation is more frequently grounded in discrete enabling legislation which provides a good indication about the level of activity permissible within the state. State law will likely serve as the cornerstone of any testing and deployment planning.
Local jurisdictions, often large municipalities, present another complicating element. Where they aren’t specifically preempted from regulating HAVs, these jurisdictions have increasingly significant information sharing expectations of the HAV operators on their roads.
To that end, local jurisdictions, like San Francisco, have requested voluntary compliance with regulatory programs that have no basis in binding authority. Navigating those expectations while your clients operate on a city’s streets is less a legal calculus than a political one.
2. How to Interpret ‘Soft Law'—The Centrality of Informal Guidance
Ever since Google requested clarification from the National Highway Traffic Safety Administration about how it understands the term “driver,” ambiguity has been inherent in the law of HAVs. In part, this is because the development of a new FMVSS takes, on average, seven years to complete the notice-and-comment rule-making process.
Thus, without a practicable alternative, and in response to an obvious need, the U.S. Department of Transportation has done what it can, without specific legislative direction, to introduce some level of predictability in the field by promulgating guidance on an informal basis. That guidance—a form of “soft law”—is now on its third iteration: “A.V. 3.0: Preparing for the Future of Transportation.”
Under the terms of A.V. 3.0, the DOT has outlined for HAV developers areas of focus and concern that it expects them to emphasize, from cyber security to operational limits. While this guidance is technically voluntary, developers tend to hew closely to its terms and have even submitted self-assessments based on its terms. Without many other rules of the road available, an attorney that overlooks DOT informal guidance risks rousing unwanted attention.
3. Regulatory Engagement—A Little Proactive Conversation Can Save Big Headaches
Each HAV firm and each HAV deployment presents a different opportunity for regulatory engagement. Given that regulators are still in the infancy of their interaction with HAVs, every case offers some insight into the particular eccentricities of that jurisdiction. To that end, maintaining a relationship with relevant regulators, particularly state regulators charged with issuing and renewing testing and deployment permits, is vital.
While state agencies may appear to be undifferentiated and monolithic, when it comes to HAV regulation, there is often a specific cadre of people charged with working on related issues. Getting to know those folks and keeping them abreast of testing and deployment decisions goes a long way toward avoiding the natural tension that may arise from a regulator feeling caught by surprise by a client’s activity.
Ultimately, knowing where to look for authority, understanding how to interpret that authority, and keeping a good handle on the regulatory environment are not sufficient for the effective representation of an HAV client, but they are necessary steps to keeping your HAV clients on the road. More importantly, by adhering to these fundamentals, more HAV firms will be able to keep their life-saving technology moving forward.
Glynna Christian is a New York-based partner with Orrick, Herrington & Sutcliffe in the global Technology Transactions Practice and co-leads the firm’s Automotive Technology & Mobility Group.
Ian Adams is an attorney in Orrick’s Public Policy Practice, based in Sacramento.