Updated Summary of California’s Autonomous Vehicle Regulations
[Further update: these regulations became effective in April 2018.]
This article provides a summary of the key provisions of the current draft of the regulations for the testing and deployment of autonomous vehicles on public roads in California. On November 30, 2017, the California Department of Motor Vehicles (DMV) published updated draft regulations for autonomous vehicle testing and deployment, and a Statement of Reasons supporting the most recent edits to the proposed rules. After the modifications made in the October 11, 2017 draft regulations and the March 10, 2017 draft regulations, these proposed regulations are likely final or close to final, and are expected to be adopted in 2018. The regulations propose to amend Article 3.7 and to add Article 3.8 to Title 13, Div. 1, Ch. 1 of the California Code of Regulations. Article 3.7 governs the testing of autonomous vehicles (AVs) and was adopted in 2014. Article 3.8 will govern deployment of AVs to the public. While federal legislation may ultimately preempt some of these state regulations, these rules will govern deployment of autonomous vehicles in California until any such legislation is passed.
Article 3.7 — Testing of Autonomous Vehicles
Autonomous Vehicles Defined as SAE Levels 3–5 Only. The proposed regulations define autonomous vehicles to include SAE Levels 3–5 only, excluding vehicles with assisted driving technology but which are “not capable of, singularly or in combination, performing the dynamic driving task on a sustained basis without the constant control or active monitoring of a natural person.” By limiting the regulations to Levels 3–5, California eliminates retroactive application to cars already deployed to the public with Level 0–2 technology. (See 227.02)
Financial Responsibility Requirements for All Test Vehicles. Manufacturers seeking a permit for all test vehicles, whether operated with or without a driver, must provide evidence of their ability “to respond to a judgment or judgments for damages for personal injury, death or property damage arising from the operation of autonomous vehicles on public roads in the amount of $5 million in the form of an instrument of insurance issued by an insurer admitted to issue insurance in California; a surety bond issued by an admitted surety insurer or an eligible surplus lines insurer, and not a deposit in lieu of bond; or a certificate of self-insurance.” (See 227.04, 227.12, 227.14)
Testing Permits. For all test vehicles, a manufacturer shall not conduct testing of an autonomous vehicle on public roads in California without having applied for and received from the DMV a permit to conduct testing, either a Testing Permit or a Testing Permit-Driverless Vehicles, which is in full force and effect. A manufacturer shall not test an AV on public roads “unless the manufacturer has tested the autonomous vehicles under controlled conditions that simulate as closely as practicable each Operational Design Domain in which the manufacturer intends the vehicles to operate on public roads and the manufacturer has reasonably determined that it is safe to operate the vehicles in each Operational Design Domain.” Each testing permit is valid for two years and allows the operation of up to 10 AVs and 20 AV drivers for a permit fee of $3600, or with a supplement of $50 for each additional set of 1–10 vehicles and 1–20 drivers. Any change to contact information on the permit must be provided in writing to the DMV within 10 days of the change. (See 227.18 and 227.30)
Prohibitions and Exclusions. A manufacturer may not allow test vehicles to be operated on public roads in California by a person other than one of its employees, contractors, or designees who meet the AV test driver requirements, or when “members of the public that are not employees, contractors or designees are charged a fee to ride in the vehicle, or the manufacturer receives compensation for providing a ride to members of the public.” Certain vehicle types are excluded from both testing and deployment under these regulations, including trailers, motorcycles, motor vehicles with interstate operating authority under Vehicle Code sections 8050–58, vehicles with a gross vehicle weight rating of 10,001 or more pounds and vehicles carrying hazardous materials. (See 227.26 and 227.28)
Autonomous Vehicle Test Drivers. To conduct testing, an AV test driver must: (a) be in immediate physical control of the vehicle or actively monitoring the vehicle’s operations and capable of taking over immediate physical control; (b) be an employee, contractor or designee of the manufacturer; (c) obey all provisions of the Vehicle code and local regulation whether the vehicle is in autonomous or conventional mode, “except when necessary for the safety of the vehicle’s occupants and/or other road users”; and (d) know the limitations of the AV technology and be capable of safely operating the vehicle in all conditions which are being tested on public roads. A manufacturer must identify to the DMV in writing the name of each test driver, his/her drivers’ license number/jurisdiction, and the AV Testing Program Test Vehicle Operator Permit, form OL 314. The manufacturer must certify each test driver has been licensed to drive for the 3 years immediately preceding and did not have more than one violation point, was not the at-fault driver in a collision that resulted in injury or death of any person, and for the 10 years immediately preceding was not convicted for operating a vehicle under the influence of alcohol/drugs and did not have any license suspension or revocation based on operating a vehicle under the influence. The AV test driver must also have completed the manufacturer’s autonomous vehicle test driver training program and provide the date of completion. (See 227.32, 227.34 and 227.36)
Driverless Certification and ODD. For AVs designed to operate without a driver, the rule requires a certification by the manufacturer that the “autonomous vehicles are capable of operating without the presence of a driver inside the vehicle and that the autonomous technology meets the description of a Level 4 or Level 5 automated driving system” under SAE’s designations. The manufacturer must also inform the department of “the intended operational design domains of the autonomous vehicle.” (See 227.38)
Written Notification to Local Authorities. For testing without a driver, manufacturers must certify they have provided written notification to local authorities where testing will occur, with a copy to the DMV. The rule defines “local authorities” by reference to Vehicle Code Section 385 which includes “every county or municipality having authority to adopt local police regulations.” The rule also specifies the information to be provided to local authorities by written notice: the operational design domain of the test vehicles, a list of all public roads where vehicles will be tested, the date that testing will begin, the days/times testing will be conducted, the number and types of vehicles to be tested, and contact information for the manufacturer conducting the testing. There is no provision in the rule regarding whether cities or counties can object to the testing or refuse it, and no requirement for any coordination with local officials. (See 227.38)
Remote Operator Communiction Link and Monitoring. For AVs designed to operate without a driver, the manufacturer must certify that “there is a communication link between the vehicle and the remote operator to provide information on the vehicle’s location and status and allow two-way communication between the remote operator and any passengers” and that the manufacturer will “continuously monitor the status of the vehicle and the two-way communication link while the vehicle is being operated without a driver.” A remote operator is a “natural person who possesses the proper class of license” for the test vehicle; “is not seated in the driver’s seat of the vehicle; engages and monitors the autonomous vehicle;” and “is able to communicate with occupants in the vehicle through a communications link.” The definition states that “a remote operator may also have the ability to perform the dynamic driving task for the vehicle or cause the vehicle to achieve a minimal risk condition.” While a remote operator must have a driver’s license, a remote operator is not required to complete the same training program as an autonomous vehicle test driver. Instead, a remote operator needs training sufficient to “enable him or her to safely execute the duties of a remote operator and possess the proper class of license for the type of test vehicle being operated.” (See 227.38)
Manufacturer Liability. There are no provisions in the rule requiring manufacturers to assume liability for damages caused by autonomous vehicles; existing laws governing liability will apply.
Law Enforcement Interaction Plan. The manufacturer is required to provide a law enforcement interaction plan, which must include: how to communicate with a remote operator of the vehicle who is “available at all times that the vehicle is in operation, including providing a contact telephone number for the manufacturer”; where in the vehicle to obtain owner information, vehicle registration and insurance information; how to safely remove the vehicle from the roadway; how to recognize whether the vehicle is in autonomous mode and safely disengage it; how to detect and ensure autonomous mode is disengaged; how to interact with electric/hybrid vehicles; and a description of the operational design domain.The plan must be reviewed on a regular basis and updated as needed, but on “no less than an annual basis.” Plans must be emailed to the California Highway Patrol as well, and local law enforcement should be provided a web address where the plan can be accessed. (See 227.38)
NHTSA’s Voluntary Safety Assessment Is Voluntary.
While earlier drafts of the California regulations tried to make mandatory the submission of a Safety Assessment Letter under NHTSA’s voluntary federal guidance, the current draft recognizes that any submissions pursuant to NHTSA’s voluntary guidance are in fact voluntary and will not be required by state rule. The regulation requires only that “manufacturers that have publicly disclosed an assessment demonstrating their approaches to achieving safety shall provide the department with a copy of that assessment.” (See 227.38)
Information Privacy. The manufacturer shall disclose to any passenger in a testing vehicle that is not an employee, contractor, or designee of the manufacturer “what personal information, if any, that may be collected about the passenger and how it will be used.” Personal information is defined as information “the autonomous vehicle collects, generates, records or stores in an electronic form that is retrieved from the vehicles, that is not necessary for the safe operation of the vehicle, and that is linked or reasonably linkable to the vehicle’s registered owner or lessee or passengers using the vehicle for transportation services.” (See 227.38)
Amendment of Testing Permit. A manufacturer is required to submit a revised application on Form OL 318 for a testing permit prior to implementing changes to the vehicle that (1) make the vehicle capable of operation at an SAE level that is different from and/or in addition to the level in the approved permit; (2) make the vehicle capable of operation on a roadway type that is different from and/or in addition to those in the approved permit; (3) increase the maximum speed of the vehicle by more than 15 miles per hour; or (4) make the vehicle capable of operation in geographic areas different from and/or in addition to those in the approved permit. Any changes to the contact information or name of the manufacturer provided on an application require notification to the DMV in writing. (See 227.38)
Reporting of Collisions. For all test vehicles, any collisions “originating from the operation of the autonomous vehicle on a public road that resulted in the damage of property or in bodily injury or death” must be reported to the DMV within 10 days on a specified form. The manufacturer shall identify on the form the names/addresses of all persons involved in the collision and “a full description of how the collision occurred.” (See 227.48)
Annual Report of Disengagements. For purposes of reporting, a disengagement is defined as “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 case of driverless vehicles, when the safety of the vehicle, the occupants of the vehicle, or the public requires that the autonomous technology be deactivated.” Upon receipt of a test permit, manufacturers must commence retaining “data related to the disengagement of the autonomous mode” and must submit an annual report to the DMV by January 1st of each year. The first report shall cover the period from the date the permit is issued to November 30 of the following year. Subsequent reports will cover the period of December 1 of the current year to November 30 of the following year.
The annual report shall be submitted on a new Form OL 311R, incorporated by reference into the regulation. The annual report shall summarize disengagements including: (a) whether the vehicle is capable of operating without a driver; (b) the circumstances or testing conditions at the time of the disengagements (including location/type of street, whether operating with or without a driver, the facts causing the disengagement such as weather, road surface/traffic, construction, emergency or collision, and the party that initiated the disengagement); and (c) the total number of miles each AV was tested in autonomous mode on public roads each month. The annual report does not need to summarize disengagements by month. The annual report also will not be required to include “planned disengagements” and manufacturers will not be required to state “the type of incident that was preempted by the transfer of control to the autonomous vehicle test driver,” as had previously been proposed. (See 227.50)
Article 3.8 — Deployment of Autonomous Vehicles
Definition of Deployment. Deployment of autonomous vehicles means “the operation of an autonomous vehicle on public roads by members of the public who are not employees, contractors, or designees of a manufacturer or for purposes of sale, lease, providing transportation services for a fee, or otherwise making commercially available outside of a testing program.” (See 228.02)
Financial Responsibility Requirements for All Vehicles. Manufacturers seeking a permit for deployment of autonomous vehicles, whether operated with or without a driver, must provide evidence of the manufacturer’s ability “to respond to a judgment or judgments for damages for personal injury, death or property damage arising from collisions or accidents caused by the autonomous vehicles produced by the manufacturer in the form of an instrument of insurance, a surety bond or proof of self-insurance.” The amount of the insurance or bond is $5,000,000, based on the language in Vehicle Code section 38750(c)(3). (See 228.04)
Certification Regarding Operational Design Domain. In its application for a deployment permit, the manufacturer “shall identify in the application the operational design domain in which the subject autonomous vehicles are designed to operate and certify that the vehicles are designed to be incapable of operating in the autonomous mode in areas outside of the disclosed operational design domain.” The manufacturer also must “identify any commonly-occurring or restricted conditions, including but not limited to: snow, fog, black ice, wet road surfaces, construction zones, and geofencing 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.”
The rule also provides that the manufacturer “shall describe 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” and that 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 until it has reached a location where it can come to a complete stop.” Deployment permits require a fee of $3275 for the processing of the application. (See 228.06)
Certification Regarding Autonomous Technology Data Recorder. Manufacturers must certify in the permit application for deployment that the autonomous vehicles are “equipped with an autonomous technology data recorder that captures and stores autonomous technology sensor data for all vehicle functions that are controlled by the autonomous technology at least 30 seconds before a collision with another vehicle, person or other object while the vehicle is operating in autonomous mode.” This stored data must be “in a read only format” and “capable of being accessed and retrieved by a commercially available tool.” (See 228.06)
Certification of Compliance with FMVSS or an Exemption. The manufacturer must certify that the autonomous vehicles “comply with all applicable Federal Motor Vehicle Safety Standards, Title 49 Code of Federal Regulations, Part 571, and California Vehicle Code, Division 12 (Equipment of Vehicles), or the manufacturer shall provide evidence of an exemption that has been approved by the National Highway Traffic Safety Administration.” The manufacturer must also certify that the “autonomous technology meets Federal Motor Vehicle Safety Standards, if any, for the vehicles’ model year, and that the autonomous technology does not make inoperative any Federal Motor Vehicle Safety Standards, Title 49 Code of Federal Regulations, Part 571, and California Vehicle Code, Division 12 (Equipment of Vehicles).” (See 228.06)
Certification of Compliance with Vehicle Code. The manufacturer must “certify that the autonomous technology is designed to detect and respond to roadway situations in compliance with all provisions of the California Vehicle Code and local regulation applicable to the performance of the dynamic driving task in the vehicle’s operational design domain, except when necessary to enhance the safety of the vehicle’s occupants and/or other road users.” The manufacturer shall also certify “that, when necessary, it will make available updates pertaining to the autonomous technology at least annually or by the effective date of any changes in the California Vehicle Code and local regulation applicable to the operation of motor vehicles to ensure that the autonomous vehicle is in compliance with any changes made to the California Vehicle Code and local regulation applicable to the performance of the dynamic driving task in the vehicle’s operational design domain.” The manufacturer shall “notify the registered owner of the autonomous vehicle of the availability of the updates” and “provide instructions on how to access the updates.” (See 228.06)
Certification of Mapping Updates. The manufacturer must also certify that it will make available “updates pertaining to location and mapping information utilized or referenced by the autonomous technology for the safe operation of the vehicle in the operational design domain on a continual basis consistent with changes to the physical environment captured by the maps, sensors or other information.” The manufacturer shall “notify the registered owner of the autonomous vehicle of the availability of the updates” and “provide instructions on how to access the updates.” (See 228.06)
Certification Regarding Cybersecurity. The manufacturer must also provide a certification that “the autonomous vehicles meet appropriate and applicable current industry standards to help defend against and respond to cyber-attacks, unauthorized intrusions, or false vehicle control commands.” (See 228.06)
Certification Regarding Safety. The manufacturer must certify that it “has conducted test and validation methods and is satisfied, based on the results of the tests and validations, that the vehicles are safe for deployment on public roads in California.” (See 228.06)
Remote Operators. For deployment of vehicles that do not require a driver, the manufacturer must certify there is a “communication link between the vehicle and the remote operator, if any, to provide information on the vehicle’s location and status and allow two-way communication between the remote operator and any passengers, if applicable, should the vehicle experience any failures that would endanger the safety of the vehicle’s passengers or other road users while operating without a driver.” The manufacturer must also certify that the vehicle has the ability “to display or transfer vehicle owner or operator information as specified in Vehicle Code section 16025 in the event the vehicle is involved in a crash, collision or accident or if there is a need to provide that information to a law enforcement officer for any reason.” The manufacturer must certify for any vehicle “not equipped with manual controls for completing the dynamic driving task, such as a steering wheel, brake pedal, and accelerator pedal,” that it “complies with all applicable Federal Motor Vehicle Safety Standards, or the manufacturer provides evidence of an exemption that has been approved by the National Highway Traffic Safety Administration.” (See 228.06)
Consumer Education Plan. For vehicles “to be sold or leased to persons other than the manufacturer,” the manufacturer must submit with its deployment permit application “a consumer or end user education plan, which covers the operational design domain of the vehicle” and also provides “identification of any and all restrictions of the autonomous technology in the autonomous vehicles and an explanation of the educational materials that will be provided to end users of the autonomous vehicles produced by the manufacturer.” The manufacturer must also provide a copy of “the sections of the vehicle owner’s manual, or an equivalent vehicle operator instruction guide or pamphlet” that provides information on “the mechanism to engage and disengage the autonomous technology showing the mechanism is easily accessible to the vehicle operator, the visual indicator inside the vehicle’s cabin to indicate when the autonomous technology is engaged, and the operator and manufacturer’s responsibilities with respect to the operation of the autonomous vehicles.” The manufacturer must also provide “an explanation as to how end users will receive education after purchasing a previously-owned vehicle.” (See 228.06)
Fall-Back Risk Condition. For SAE Level 4 and 5 vehicles, or for SAE Level 3 vehicles where the driver does not or is unable to take manual control of the vehicle, the manufacturer must provide a description of how the vehicle “will safely come to a complete stop when there is an autonomous technology failure that would endanger the safety of the vehicle’s occupants or other road users,” including “to the extent practicable, moving the vehicle a safe distance from the travel lanes” and “activation of systems that will allow the vehicle to continue operation until the vehicle has reached a location where it can come to a complete stop.” (See 228.06)
Testing Summary. A manufacturer must submit with its application for deployment permit “a summary of the manufacturer’s autonomous technology testing in the operational design domain” in which the AVs are designed to operate. The summary must “describe all locations where the vehicle has been tested” and include “the total number of vehicle test miles driven on public roads, on test tracks, or other private roads in autonomous mode.” The summary must also include “a description of the testing methods used to validate the performance of the subject autonomous vehicles” and the “number of collisions originating from the operation of the autonomous test vehicles in autonomous mode on public roads that resulted in damage of property to any one person in excess of one thousand dollars” or “bodily injury or death” and a “full description of the cause of each collision and measures taken to remediate the cause of each collision where applicable.” (See 228.06)
Information Privacy. The manufacturer shall either (1) provide a written disclosure to the driver, or to the passengers of the vehicle (if no driver required), that “describes the personal information collected by the autonomous technology that is not necessary for the safe operation of the vehicle and how it will be used” or (2) “anonymize the information that is not necessary for the safe operation of the vehicle.” A “passenger” is an occupant of the vehicle “who has no role in the operation of that vehicle when the autonomous technology is engaged.” Personal information is defined as information “the autonomous vehicle collects, generates, records or stores in an electronic form that is retrieved from the vehicles, that is not necessary for the safe operation of the vehicle, and that is linked or reasonably linkable to the vehicle’s registered owner or lessee or passengers using the vehicle for transportation services.” With respect to a vehicle the manufacturer sells or leases to a customer, “if the information is not anonymized, the manufacturer shall obtain the written approval of the registered owner or lessee of an autonomous vehicle to collect any personal information by the autonomous technology that is not necessary for the safe operation of the vehicle.” In addition, a manufacturer “shall not deny use of an autonomous vehicle to any person on the basis that they do not provide the written approval” for collection of information. (See 228.24)
Manufacturer Responsibility. There are no provisions regarding manufacturer responsibility for safe operation of an AV operating in autonomous mode; existing liability laws will apply.
Advertising Rules for Autonomous Technology. The rule provides that “no manufacturer or its agents shall represent in any advertising for the sale or lease of a vehicle that a vehicle is autonomous” unless the vehicle “meets the definition of an autonomous vehicle specified in Vehicle Code section 38750 and section 227.02(b) of Article 3.7” (Levels 3–5) and “the vehicle was manufactured by a manufacturer licensed pursuant to Vehicle Code section 11701 also holding a valid autonomous vehicle manufacturer’s permit issued pursuant to this Article at the time of the vehicle’s manufacture.” This proscription includes not just use of the word “autonomous” but also “use of terms to describe the performance of a vehicle that is known, or by the exercise of reasonable care should be known, will likely induce a reasonably prudent person to believe a vehicle is autonomous.” (See 228.28)
Amendment of Deployment Permit. A manufacturer must submit and receive approval for an amended application for public deployment “prior to implementing changes” that (1) make the vehicle capable of operation at an SAE level that is different from and/or in addition to the level in the approved permit; (2) make the vehicle capable of operation on a roadway type that is different from and/or in addition to those in the approved permit; (3) increase the maximum speed of the vehicle by more than 15 miles per hour; (4) make the vehicle capable of operation in geographic areas different from and/or in addition to those in the approved permit; or (5) remove any commonly-occurring or restricted conditions that were identified on the approved permit. A manufacturer “shall not deploy vehicles with the changes specified in this section until the amended application has been approved by the department.” (See 228.10)
