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DRAFT Agenda ID# 19622 CPED/RR1 Draft Resolution TL-19134 DRAFT Agenda ID# 19622 CPED/RR1 PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Consumer Protection and Enforcement Division RESOLUTION TL-19134 Transportation Licensing and Analysis Branch [Date] D R A F T R E S O L U T I O N RESOLUTION GRANTING WAYMO’S REQUEST TO DEVIATE FROM GENERAL ORDER 157-E (PART 8.02) IN THE COMMISSION’S DRIVERED AUTONOMOUS VEHICLE PASSENGER SERVICE PILOT PROGRAM. SUMMARY On July 2, 2019, the Consumer Protection and Enforcement Division (CPED) granted Waymo a charter-party carrier (TCP) certificate to operate under the Commission’s Drivered Autonomous Vehicle (AV) Pilot Program. Pursuant to General Order (GO 157-E, Part 8.02, the Commission approved Waymo’s request for an exemption from the “driver status” requirements of GO 157-E, Part 5.03, which allows Waymo to use employees of third-party vendors as test drivers. This exemption was renewed on July 1, 2020 and expires July 1, 2021. Due to the COVID-19 pandemic and state-mandated restrictions, starting in April 2020, Waymo suspended its CPUC Drivered AV Pilot operations and did not use its Drivered AV pilot exemption. GO 157-E Part 8.02 allows one 12-month renewal period for an exemption. Consequently, on June 11, 2021, Waymo filed a request to CPED, pursuant to GO 157-E Part 1.07, to deviate from General Order (GO) 157-E Part 8.02 and extend their exemption renewal for an additional 12 months. BACKGROUND A. CPUC’s Autonomous Vehicle Programs The Commission authorized two sets of autonomous vehicle (AV) programs: (1) a Drivered and a Driverless AV Passenger Service Pilot Program established in D.18-05-043 (2018); and (2) a Drivered and a Driverless AV Passenger Service Phase I Deployment program established in D.21-05-017 (2021). As the names imply, the Drivered Pilot Program allows passenger service in test AVs with a safety driver in the vehicle; the Driverless Pilot 1 389617146 Draft Resolution TL-19134 DRAFT Agenda ID# 19622 CPED/RR1 Program allows passenger service in test AVs without a safety driver in the vehicle. Moreover, while a safety driver is available to assist with operations if needed under the drivered program, a communication link between passengers and a person responsible for monitoring the vehicle must be available and maintained at all times during passenger service under the driverless program. Monetary compensation may not be charged for any rides in test AVs under the Pilot Programs. Under the Phase I Deployment Programs, however, participants are authorized to charge fares for AV passenger service. In addition, applicants to the existing Driverless Pilot Program and the new Driverless Phase I Deployment Program are required to submit Passenger Safety Plans that outline their plans to protect passenger safety. Generally, applicants in the Commission's AV programs must obtain separate permits from the California Department of Motor Vehicles (DMV) and the Commission: Applicants in CPUC’s Pilot programs must first obtain an Autonomous Vehicle Tester Program Manufacturer's Testing Permit1 from the DMV for AV testing with or without a safety driver. Participants must comply fully with DMV's AV testing regulations. Similarly, applicants in CPUC’s Phase I Deployment Programs must first obtain an AV Deployment Permit from the DMV. To carry passengers in DMV-permitted services, AV companies must obtain Transportation Charter-Party Carrier (TCP) authority from the Commission for each AV Pilot or Phase I Deployment Program and comply with the requirements established by the Commission for the Pilot or Phase I Deployment Program. Currently, the Commission has issued eight Drivered Pilot Program Permits and one Driverless Pilot Program Permit.2 B. Requests for Exemption and Deviation from General Order 157-E Rules Generally, the Commission’s authority to regulate all passenger carriers, including autonomous vehicles, emanates from the California Constitution, State statutes and Commission decisions. To implement these authorities, the Commission adopted General Order (GO) 157-E, which establishes the rules and regulations governing the operations of charter-party carriers of passengers. Obtaining a TCP permit is a prerequisite to participate in the Commission's AV programs, and is governed by the rules and regulations under GO 157-E. 1 Information on DMV’s program is available at http://www.dmv.ca.gov/portal/vehicle-industry- services/autonomous-vehicles/. 2 Aurora Innovation, AutoX, Cruise, Deeproute.ai, Pony.ai, Voyage, Waymo and Zoox for the drivered program, and Cruise for the driverless program. 2 389617146 Draft Resolution TL-19134 DRAFT Agenda ID# 19622 CPED/RR1 Under specific circumstances, GO 157-E allows an applicant or TCP permit-holder in any of the Commission’s pilot programs to seek an exemption from any of the requirements established in GO 157-E. Part 8.02 states: For any pilot program established by the Commission, Commission staff processing a license application may grant the requested exemption where the carrier, in its permit application pursuant to this General Order, presents a justification in writing that clearly and specifically shows consistency between the exemption request and the Commission’s purpose for the pilot program and demonstrates that, if the exemption is granted, the carrier’s operations will be functionally equivalent to the operations otherwise required by this General Order. Any exemption granted under this part shall be in effect for 12 months or for the duration of the pilot program, whichever is shorter. Renewal of the exemption may be granted by Commission staff for only one additional period of time not to exceed 12 months, where the carrier presents an updated justification for the request consistent with this section. The justification presented by any carrier under this part shall be posted by Commission staff on the website.3 An applicant or permit-holder in the Commission's AV pilot program can submit a written request for an exemption to the Commission. If granted, the exemption shall remain in effect for 12 months or the duration of the pilot program, whichever is shorter. The exemption may be renewed for only one additional period of time not to exceed 12 months. Additionally, Part 1.07 of GO 157-E allows the Commission to authorize deviations from rules and regulations set forth in GO 157-E: The Commission may authorize deviations from these rules and regulations or prescribe or require the observance of additional or different rules by special order.4 C. Waymo’s Request to Deviate from GO 157-E5 The Commission granted Waymo a charter-party carrier (TCP) permit on July 2, 2019, which authorizes Waymo to operate under the Commission’s Drivered AV Pilot Program. On February 15, 2019, it requested an exemption from GO 157-E Part 5.03 pursuant to GO 157-E Part 8.02. Part 5.03 requires that a TCP permit-holder’s drivers be employees of the TCP itself, an employee of its sub-carrier, or an independent driver that holds TCP 3 General Order 157-E at 14. 4 General Order 157-E at 5. 5 See Attachment 1. 3 389617146 Draft Resolution TL-19134 DRAFT Agenda ID# 19622 CPED/RR1 authority and is acting as a sub-carrier.6 Waymo requested to be exempt from this requirement to be able to use third-party safety drivers in its Drivered AV Program operations. CPED Staff approved this request for an exemption with the granting of their Drivered AV Pilot permit on July 1, 2019. Waymo’s exemption was subsequently renewed on July 1, 2020 for a duration of 12 months. However, with the COVID-19 pandemic and state-mandated restrictions, “Waymo’s AV pilot exemption has gone entirely unused…”7 Data submitted by Waymo through their quarterly reports confirm that zero passengers were transported in Waymo vehicles between April 2020 and February 2021 (the most recent month for which data are available). On June 11, 2021, Waymo filed a request with the Consumer Protection and Enforcement Division (CPED) to deviate from General Order (GO) 157-E Part 8.02 pursuant to GO 157-E Part 1.07 to allow Waymo’s existing exemption from the “driver status” requirements of Part 5.03 to remain in place for a period of 12 months from the adoption of the resolution authorizing the deviation. DISCUSSION A resolution is required to resolve Waymo’s request to deviate from GO 157-E Part 8.02. The Commission has reviewed Waymo’s request based on the provisions outlined in GO 157-E. In doing so, the Commission finds that Waymo has presented valid reasons and demonstrated that it has made a reasonable and good faith effort to resolve the issue via the R.12-12-011 proceeding and directly with CPED Staff. Waymo’s existing exemption from the “driver status” requirements under Part 5.03 of GO 157-E was issued on July 1, 2019 and renewed on July 1, 2020.8 In light of the state- mandated restrictions on COVID-19, however, the exemption has not been used over the course of its duration as these restrictions limited Waymo’s ability to provide rides to the public in California. Consequently, Waymo suspended its Drivered AV Pilot Passenger Service operations authorized by its CPUC-issued permit. In the past year, recognizing the impacts of the COVID-19 pandemic, the Commission has taken action to address the operational challenges regulated entities are facing as a result of the COVID-19 restrictions.9 Therefore, the Commission finds that a deviation from the 24- month exemption period is reasonable in light of how the restrictions created by the pandemic significantly affected Waymo’s Drivered AV Pilot operations. 6 General Order 157-E at 13.
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