Now that the California Legislature, the autonomous vehicle industry and the general public all have had their say, California’s self-driving future is in the hands of bureaucrats at the state’s Department of Motor Vehicles, whose final regulations will govern testing and deploying the technology in the Golden State. Unfortunately, a look at those rules offers plenty of reason for concern.
The proposed regulations circulated for comment in March are a marked improvement on the draft rules the DMV circulated in 2016. They’ve dropped outright prohibitions on testing and deploying vehicles without drivers. But in their place, new mistakes were made.
One particularly notable misstep would require manufacturers to wait six months before deploying any updates—including safety updates—to either the vehicles or their operating software that would result in a “material change” to how the vehicle operates.
This bizarre development is a legacy of S.B. 1298, now Vehicle Code 38750, which Gov. Jerry Brown signed back in 2012. To retain control over testing and deploying self-driving cars, the Legislature included a provision requiring the DMV to notify lawmakers of any permit applications to operate autonomous vehicle without drivers. Once received, those applications are subject to a 180-day review to give the Legislature time to have its say on the application
But self-driving technologies have accelerated rapidly since 2012. Over the past five years, both new firms and old-guard automakers have jumped to begin testing automated driving technologies in California.
Until recently, the six-month review period was only a theoretical problem, as testing and deployment focused on vehicles that still included some driver involvement. With higher-level automated systems now ready to enter the testing stage, manufacturers soon will start their six-month statutory clocks running as they file for permits. If the DMV sticks to its proposed regulations, every single vehicle modification in the future will require those clocks to be restarted again and again and again.
The real question for the regulators to answer is what sort of modifications qualify as “material changes.” The DMV’s proposed definition is maddeningly vague and nearly tautological, declaring that a “material change” is one that “will have a material impact on the capability or safety of that technology.” This kind of standard is of virtually no use to a manufacturer, as it leaves the crucial questions of compliance to the regulator’s discretion.
Do updates that tweak a system’s response time by a tenth of a second count as “material”?
More importantly, is the California DMV even qualified to understand or evaluate its own standard? The DMV’s insistence that it retain authority to certify vehicle performance stands in direct tension with its stated commitment to separate state and federal spheres of concern.
Federal regulators with the National Highway Traffic Safety Administration have, for years, overseen vehicle-performance standards. Safety regulation has been and continues to be their primary job. States, for their part, have typically regulated vehicle licensing, registration, liability and insurance. It is not a stretch to say the DMV literally lacks the ability to interpret the standard it’s now proposing, which would be used as the basis to trigger delay after delay of vital vehicle updates.
If the DMV proceeds on its current course, there may be another answer. State Sen. Jerry Hill, D-San Mateo, has introduced S.B. 145, which would remove the 180-day waiting period from statute. Should the bill become law, permit applications for safety updates would require only the usual modest delays associated with administrative review.
The delay isn’t the only problem with the proposed regulations, and not all of them have a ready-made legislative solution. The best we can hope for right now may be an unexpected burst of regulatory restraint. Short of that, California’s self-driving future might be further off tomorrow than it is today.
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