On behalf of the R Street Institute, the Competitive Enterprise Institute, TechFreedom, and the International Center for Law & Economics, we respectfully submit these comments in response to the California Department of Motor Vehicles’ proposed Driverless Testing and Deployment Regulations released on March 10, 2017. We believe the proposed regulations better serve the people of California—not only in terms of safety, but in terms of consumer welfare more generally. We are particularly cognizant of the DMV’s demonstrable commitment to an iterative approach to this rulemaking. On that basis and in that spirit, we believe that further revisions are necessary.
These comments deal with specific provisions of the proposed regulations, but there are also general considerations that defy categorization on the basis of a section-by-section analysis. Those considerations are addressed here.
Department authority, misplaced reliance on Vehicle Code 1651: As a general matter, the Department’s reliance on Section 1651 for authority to promulgate rules beyond the scope of the authority provided by Section 38750 is misplaced. While agencies are granted broad discretion to interpret statutes in areas in which they have expertise, that authority is not without limit and is neither conclusive nor binding.  State Board of Equalization v. Board of Supervisors (1980) 105 Ca. App. 3d 813, 819 states that “An administrative officer may not make a rule or regulation that alters or enlarges the terms of a legislative enactment.” These proposed regulations both alter and enlarge the terms of California Vehicle Code Section 38750.
Section 38750 includes robust and specific provisions, subsections 38750(d)(1)-(4), concerning the adoption of regulations governing the deployment and operation of autonomous vehicles. Yet, while the authority to promulgate regulations in Section 38750 is broad, it is focused specifically on steps related to the “safe operation” of autonomous vehicles.
It is a well established rule of statutory interpretation in California that when two statutes are on the same subject they are to be interpreted together, and that the more recent or particular statute should control over the more general statute. Section 1651 is the Department’s “catch-all” statute concerning the adoption of rules to enforce the vehicle code. Yet, when the legislature adopted Section 38750, it specifically included a section concerning the adoption of regulations in the context of autonomous vehicles. Thus, Section 38750, the more recent and particular statute, supersedes the more general authority of Section 1651 in the context of regulating the technology. Any regulations adopted not directly tied to the safe operation of autonomous vehicles must rest on independent authority – beyond Section 1651.
The infirmity caused by reliance on Section 1651 permeates the proposed regulations. In its “Initial Statement of Reasons,” the Department repeatedly offers rationales for proposed rules unrelated to the safe operation of autonomous vehicles and cites both Section 38750 and Section 1651. Since regulations not directly related to the safe operation of autonomous vehicles plainly fall beyond the scope of Section 38750, the Department is relying on the authority of Section 1651 for such pronouncements.
The following sections are unrelated to the safe operation of autonomous vehicles, are beyond the scope of the Department’s delegated authority, and require enabling legislation to pursue:
- 227.38(a) – Interaction with local authorities.
- 227.38(b) – Certification of liability during driverless testing.
- 227.50 – Reporting disengagement of autonomous mode
- 228.28 – Driver and manufacturer responsibility during permitted deployment.
Inconsistently stated safety standards: throughout the proposed rules, the Department uses different standards of safety. Such inconsistency is not only problematic in the event that the Department actually does have the authority to apportion liability between parties, but also insofar as the Department’s rules are used to establish standards by which liability is judged. Here are all of the different safety standards that the Department articulates throughout the proposed regulations:
- 227.18(b) – reasonably determined that it is safe
- 227.42(a)(3) – unreasonable risk
- 228.06(a)(10) – safe
- 228.08(e)(2) – safe
- 228.12 – unreasonable risk
- 228.16(b) – a safety risk to the public
- 228.20(b)(6) – not safe
- 228.28(a), (b) – safe operation
We would urge the Department to seek both consistency and the most flexible definition of “safe” supportable under the remit of Calif. Veh. Code 38750.
 Previously submitted comments by R Street, CEI, TechFreedom, and ICLE are available here: http://www.rstreet.org/wp-content/uploads/2016/10/RSI-Coalition-CA-AV-Reg-Comments-FINAL.pdf
 Michael Pappas, “Two-Stepping in the Laboratories: State Deference Standards and Their Implications for Improving the Chevron Doctrine.” McGeorge Law Review, Vol. 39, pp.1011 available at http://www.mcgeorge.edu/Documents/Publications/03_Pappas_MasterMLR39.pdf
 Carolina C. Rose, “Research & Practice Guide: California Legislative History & Intent” available at http://www.lrihistory.com/lridocuments/Legislative.Intent.Practice.Guide_001.pdf
 Id. at 10.