2023 Legislative and Regulatory Developments Affecting Autonomous Vehicles

At a Glance

• While new federal regulations on AVs will likely have little immediate effect, multiple pending federal regulations could substantially affect AV growth in the United States.
• State governments continued to develop AV law throughout the first half of 2023. Most of these states implemented or proposed laws expanding opportunities for AV use and development.
• However, bill proposals in California and Texas indicate some hesitancy to fully support the implementation of AV technology, even though these states historically embraced autonomous vehicles. The state law trends show that while the AV industry should continue to push for expanded opportunities, stakeholders should also ensure that they do not lose ground in previous strongholds. Otherwise, the AV industry may drive away its supporters.

Although the federal government implemented some new regulations on autonomous vehicles (AVs) in 2023, states remain the predominant source of new regulations affecting AVs. In fact, 25 states and the District of Columbia have considered new regulations to AVs in the first half of 2023 alone. The first installment of this two-part article discusses developments in federal autonomous vehicle regulations in 2023, as well as the federal government’s failure to implement a more comprehensive AV regulatory scheme. The second part discusses recently passed or implemented state and local laws allowing or encouraging the use of AVs, and then highlights pending state laws that could expand or restrict the AV industry.

Part I — Federal Developments

Regulatory Actions in 2023

In April, the National Highway Traffic Safety Administration (NHTSA) amended its reporting requirements for AV crashes. Although this amendment does not change the extent to which AV manufacturers and operators must report crashes, it provides a more easily accessible web-based reporting system for these crashes. The amendment could lead to more accurate AV accident reports, which may provide data to support future regulatory changes.¹

Additionally, the U.S. Department of Transportation (DOT) increased funding for AV technology development. Through the Strengthening Mobility and Revolutionizing Transportation (SMART) Grant Program, DOT provided $94 million in funding for states and local governments to improve transportation technology and systems. DOT allocated some of these funds to encourage developments in connected vehicle technology, including funds to the Colorado Department of Transportation, the Utah Department of Transportation and the Road Commission for Oakland County, Michigan. Although connected vehicles are distinct from autonomous vehicles, some developments in connected vehicle technology (such as automatic stopping to prevent accidents) could lead to AV technological developments.²

Ultimately, though, these regulatory changes are relatively small and will not significantly change AV production or use in the near future.

Anticipated Developments in 2023

While new federal regulations on AVs will likely have little immediate effect, multiple pending federal regulations could substantially affect AV growth in the United States.

Anticipated Developments by NHTSA

NHTSA has requested comments on two proposed studies of AV safety. The first project would study autonomous vehicle seating, determining if the government should allow autonomous vehicle producers to explore alternative seating arrangements to maximize passenger safety. If enacted, this research could reveal safer or more cost-effective ways to manufacture passenger autonomous vehicles by changing their seating arrangements.³

The second project, the Automated Vehicle Transparency and Engagement for Safe Testing (AV TEST) Initiative, would produce a centralized source for NHTSA to publish private autonomous vehicle research. The AV TEST Initiative aims to give private entities access to data on other autonomous driving systems’ effectiveness, and to give states and municipalities access to information on the effectiveness of existing safety autonomous vehicle regulations.⁴

Additionally, NHTSA’s acting administrator recently told an industry gathering in July that she expects to publish a notice of proposed rulemaking on the ADS-Equipped Vehicle Safety, Transparency, and Evaluation Program (AV STEP) later this fall, which would allow NHTSA to consider applications for deploying noncompliant ADS vehicles subject to review processes, terms and conditions to ensure public safety.⁵

Anticipated Developments by the FMCSA

The Federal Motor Carrier Safety Administration (FMCSA) has requested public comments on a new regulatory framework over commercial motor vehicles with Level 4 (highly autonomous) and Level 5 (fully autonomous) automated driving systems. The framework would require owners of these vehicles to inform the FMCSA if they intend to operate their vehicle without a human driver present, and it would impose stricter accident reporting requirements on commercial motor vehicles with Level 4 or Level 5 automated driving systems. The proposed framework would also create new regulations for commercial vehicles with Level 4 and Level 5 automated driving systems to ensure autonomous vehicle compliance with federal driving laws. For example, under the framework, remote drivers of autonomous vehicles would have to follow laws prohibiting distracted driving, laws prohibiting drug and alcohol consumption while driving, medical requirements to drive, and federal maximum working periods for commercial drivers. Additionally, the framework would impose guidelines for roadside inspections of commercial vehicles with Level 4 and Level 5 automated driving systems, enabling law enforcement to conduct roadside stops of autonomous vehicles, as they do for traditional commercial vehicles.⁶

The FMCSA has also requested comments on a proposed study examining the effect of human factors on autonomous vehicles’ safety. The proposal highlights concerns that partially autonomous vehicles may increase distracted driving, thereby decreasing road safety. The study would also examine the risk of autonomous vehicle sensor failure. If undertaken, the study’s results could lead to heightened regulations of partially autonomous vehicles. The request even mentions the possibility of requiring additional training to operate partially autonomous vehicles.⁷

Federal Inaction on Autonomous Vehicles

Despite some piecemeal developments in federal regulatory law on autonomous vehicles in the first half of 2023, comprehensive autonomous vehicle regulation at the federal level stalled. Representatives Debbie Dingell, D-Mich., and Bob Latta, R-Ohio, added 15 additional members to the bipartisan Congressional Autonomous Vehicle Caucus in 2022, but Congress has failed to enact any comprehensive national framework for autonomous vehicle production and regulation in 2023.⁸ Although Representative Latta emphasized that he hopes to pass autonomous vehicle legislation by the end of 2023, historically, autonomous vehicle legislation has failed to gain traction in Congress.⁹

Additionally, federal agencies consistently move too slowly to respond to developments in autonomous vehicle technology. For example, Ford submitted a petition in 2021 for NHTSA to exempt Ford from seven provisions of the Federal Motor Vehicle Safety Standards that had “requirements with controls required for human drivers to operate vehicle features, telltales, indicators, and warnings required to notify the human driver of a feature’s status or malfunction”. These exemptions would have enabled Ford to develop autonomous vehicles more efficiently. However, after two years of NHTSA inaction, Ford withdrew its petition.¹⁰

Waymo LLC and Aurora Operations jointly submitted a similar petition to the FMCSA in 2023, seeking regulatory exemptions that would allow the companies to use warning lighting more suitable to the safety needs and capabilities of their autonomous vehicles. However, corporations risk facing similar federal inaction as has Ford, potentially slowing their ability to develop autonomous commercial motor vehicles.¹¹

Notably, National Transportation Safety Board (NTSB) Chair Jennifer Homendy recently criticized the federal government’s inaction toward autonomous vehicles. In a statement to CNN, Homendy argued that “[t]he federal government is not doing their job,” emphasizing the need for the federal government to produce uniform standards for autonomous vehicle manufacturers, distributors and operators. While the NTSB lacks the authority to implement comprehensive autonomous vehicle regulation, it may pressure the NHTSA, FMCSA and DOT to do so.¹²

Nevertheless, until the federal government enacts a comprehensive regulatory framework over all autonomous vehicles, autonomous vehicle manufacturers, distributors and owners will continue to operate under a patchwork of state regulations.

Part II — State Developments

While the federal government has not implemented comprehensive autonomous vehicle regulations, state governments continued to develop autonomous vehicle law within their territories throughout the first half of 2023. Most of these states implemented or proposed laws expanding opportunities for AV use and development. However, bill proposals in California and Texas indicate some level of hesitancy to fully support the implementation of AV technology, even though these states historically embraced autonomous vehicles. The state law trends show that while the autonomous vehicle industry should continue to push for expanded opportunities, stakeholders should also ensure that they do not lose ground in previous strongholds. Otherwise, the AV industry may drive away its supporters.

Expanded State-Level Autonomous Vehicle Authorizations in 2023

Arkansas

Arkansas amended the state’s AV laws to require a human operator in only the lead vehicle of an autonomous trucking platoon. Previously, each truck in an autonomous trucking platoon in Arkansas needed a human operator. By requiring businesses using autonomous trucking platoons to only hire one driver, this law allows a more cost-effective use of platooning autonomous trucks in Arkansas.¹³

California

The California Department of Motor Vehicles released a series of workshop videos, which inform the public of minimum operational standards and testing requirements for autonomous vehicles in California. The videos allow autonomous vehicle manufacturers, distributors and operators to easily reference requirements for operation of their vehicles on California roads.¹⁴

In August, the California Public Utilities Commission approved resolutions allowing two robotaxi companies — Waymo and Cruise — to expand their commercial passenger services in San Francisco using driverless vehicles.¹⁵ The City of San Francisco has already filed motions with the Commission to urge a reversal of its decision, although it’s unclear what impact the City’s motions will have.¹⁶

Indiana and Ohio

The Indiana Department of Transportation, the Ohio Department of Transportation, Drive Ohio (a subgroup of the Ohio Department of Transportation), and the Transportation Research Center have partnered to build an I-70 Truck Automation Corridor. The Corridor will be an autonomous trucking lane between Columbus, Ohio, and Indianapolis, Indiana.¹⁷ Drive Ohio also began testing autonomous vehicles on rural southeast Ohio roads earlier this year, and has announced a plan to test autonomous trucking platoons in central Ohio.¹⁸

Maryland

Maryland enacted legislation lowering restrictions on the sale of AVs. Maryland authorized autonomous vehicle converters to alter, modify or remove components of autonomous vehicles and subsequently sell, transfer, lease or resell these vehicles.¹⁹

Michigan

The Michigan Department of Transportation, Ford, the University of Michigan, and the American Center for Mobility in Ypsilanti Township partnered to create a lane for autonomous vehicles in Michigan between Ann Arbor and Detroit. These driving lanes will enable autonomous vehicles to travel more safely and efficiently between cities.²⁰ Also in Michigan, the city of Detroit is in the second year of developing a self-driving shuttle service for the elderly and people with disabilities.²¹

Mississippi

By enacting the Fully Autonomous Vehicle Enabling Act, Mississippi authorized fully autonomous vehicles on public Mississippi roads without a human driver. Although these vehicles must meet other Mississippi vehicle manufacturing and insurance requirements, this law enables almost all autonomous vehicles to operate on Mississippi roads.²²

Nevada

Nevada’s new autonomous vehicle law imposes heightened proof of ownership requirements on autonomous vehicle owners, but the law also exempts fully autonomous vehicle manufacturers in Nevada from certain franchise and repair regulations.²³

Additionally, the Nevada Department of Motor Vehicles posted forms on its website enabling AV producers to self-certify that their vehicles meet Nevada vehicle safety standards. This development should help producers test AV safety more cost-effectively.²⁴

North Carolina

The North Carolina Department of Transportation and the city of Cary, North Carolina, tested the CASSI autonomous vehicle shuttle program from May 15 to June 2. Based on the testing results, the North Carolina public transit systems could be more apt to use autonomous vehicles.²⁵

Pennsylvania

In July 2023, a new Pennsylvania AV law will take effect, allowing testing and deployment of autonomous vehicles without a human operator on Pennsylvania roads. This law enables substantially more AV use in Pennsylvania. The law also includes provisions protecting autonomous trucking platoons to operate on Pennsylvania roads, pursuant to further regulation by the Pennsylvania Department of Transportation.²⁶

Local Government AV Expansions

The city of Phoenix, Arizona, recently launched the Phoenix Sky Harbor International Airport’s fully autonomous vehicle service to transport people to and from the airport.²⁷

The cities of Bellevue and Seattle in Washington state released a joint Strategic Vision for Automated Vehicles in February 2023. The Strategic Vision discusses AV developments and safety concerns in the two cities, describing proposed municipal policies surrounding strategic collaborations with private partners, safety, innovation, equity in transportation, expanded mobility options and sustainability.²⁸

Pending Expansions of AV Opportunities

Multiple states have pending legislation or regulations that, if passed, would expand opportunities for autonomous vehicle operations within the state.

Alabama

Proposed legislation in Alabama would introduce a comprehensive regulatory framework for AV use on Alabama roads. If passed, the legislation would allow AVs to operate within the state. This legislation has neither left committee nor gained sufficient traction to pass this year.²⁹

California

In California, the California Assembly Committee on Appropriations has approved a bill on autonomous trucking research, sending the bill to the California assembly. Specifically, the bill would require the California Department of Motor Vehicles to research and produce a report discussing the impact of autonomous vehicles with a gross weight of 10,001 pounds or more on public safety and employment in the transportation sector. If passed, this bill could encourage or discourage autonomous trucking developments in California, depending on the study’s results.³⁰

Illinois

In Illinois, four proposed bills would collectively define autonomous vehicles, set autonomous vehicle safety standards and regulations, and allow autonomous vehicle manufacturers to self-certify that their vehicles meet all applicable safety standards. However, the bills would also prohibit the sale and use of autonomous vehicles with Level 3 (conditional automation) or higher automated driving systems, require Illinois autonomous vehicle operators to obtain Illinois Department of Transportation documentation detailing the technical capacity and safety of their vehicle, and require manufacturers and dealers of autonomous vehicles to notify buyers and owners of autonomous vehicles of the functions and limitations of the vehicle’s automated driving system. Accordingly, although this legislation would represent an advancement in autonomous vehicle opportunities in Illinois, the legislation would not allow full use of autonomous vehicles in the state.³¹

Kentucky

Kentucky Governor Andy Beshear recently vetoed a bill to establish a comprehensive regulatory framework for autonomous vehicles in Kentucky. Notably, though, the bill received substantial support from the Republican supermajority in the Kentucky state legislature. If Republicans retain their supermajority, they may pass a similar bill in the next legislative session and override Beshear’s veto.³²

Massachusetts

The Massachusetts state legislature introduced a series of bills encouraging and regulating autonomous vehicles, collectively forming an autonomous vehicle regulatory framework. The bills collectively allow autonomous vehicles to operate on Massachusetts roads, but only those autonomous vehicles that are electric and produce net-zero carbon emissions.³³

Missouri

Missouri proposed legislation that would allow autonomous trucking platoons to operate on Missouri roads. The Missouri Senate Transportation, Infrastructure and Public Safety Committee recently passed the bill, demonstrating that the Missouri state legislature could enact the bill relatively soon.³⁴

Nebraska

A bill proposing a comprehensive regulatory framework for AVs in Nebraska is also stalled in committee. If enacted, the Nebraska proposal would allow AVs to operate in Nebraska.³⁵

New York

Proposed legislation in New York would allow fully autonomous vehicles to operate on New York roads without a driver. However, this bill failed to gain traction in committee.³⁶

The New York state legislature also proposed legislation to create two task forces to study opportunities for advancements in AV technology and existing use of autonomous vehicles in New York, respectively. The task force on opportunities for advancements in autonomous vehicle technology requires union and New York Business Council representation, indicating that the task force will have voices supporting and opposing increased use of autonomous vehicles.³⁷

Nevada

In response to recently enacted legislation, the Nevada Department of Motor Vehicles proposed amendments to existing Nevada regulations on autonomous vehicles. If approved, the amendments would provide a regulatory framework for registering and testing alternative electronic transportation systems on Nevada roads. These systems enable individuals to remotely control vehicles, representing a potential advancement in autonomous vehicle technology.³⁸

Tennessee

Tennessee proposed legislation that would reduce regulations on platooning autonomous trucks. However, Tennessee’s pending legislation remains in committee.³⁹

Pending Restrictions on AV Use (California and Texas)

Although many states enacted or proposed laws supporting the development, manufacturing and operation of autonomous vehicles within their territories, pending laws in California and Texas may restrict AV use in these states. Historically, California and Texas promoted the autonomous vehicle industry. These bills represent a backlash against the rapid implementation of AV technology in the states and the issues related to that implementation.

A proposed California bill would require public transit entities to notify employees 10 months before deploying autonomous vehicles where the autonomous vehicle technology would eliminate job functions or jobs. The bill then requires the public transit entity to enter collective bargaining negotiations with public employees following the notice. The California State Assembly passed the bill, but the Senate has not yet voted on it. If passed, the bill would restrict opportunities for public entities to incorporate autonomous vehicles into their workforce efficiently.⁴⁰

This movement toward restricting autonomous vehicles in California likely stems from recently raised municipal concerns about autonomous vehicles. The City of San Francisco sent a letter to California regulators detailing traffic issues and accidents stemming from autonomous vehicles in the city. The city requested increased state regulations over autonomous vehicles until safety data on autonomous vehicles is more readily available. If California lawmakers find this letter persuasive, California may alter its autonomous vehicle regulatory framework to be considerably less friendly to AV manufacturers, distributors and users.⁴¹

California is not the only state considering restricting autonomous vehicles. The Texas state legislature introduced two bills proposing minor restrictions on autonomous vehicles. The first bill would prevent the state from requiring the use of autonomous vehicles. This bill would likely pose no real restriction on autonomous vehicles; no entity is lobbying to require all vehicles to switch to an autonomous system.⁴² But should this law get on the books, it could become a hurdle years from now.

The second bill requires human operators of autonomous vehicles to hold a valid drivers’ license. Although this bill would not impose a severe restriction on autonomous vehicles as they are used presently, it could be a deterrent for further investment in autonomous vehicles, as one of the populations potentially benefitting from the technology are the elderly, disabled and others that may not have a drivers’ license. Further, it seems ineffective as a safety measure, as some autonomous vehicles have completely different operating requirements than those necessary to operate a traditional vehicle.⁴³