Implications of Connected and Automated Driving Systems, Vol. 5: Developing the Autonomous Vehicle Action Plan (2018)

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NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 11 Legal and Regulatory Review 3.1 Overview It seems that hardly a week goes by without a new country or locality making an announcement regarding testing of C/ADSs. According to Wagner and Loftus-Otway, where testing of C/AVs [referred to in this report as C/ADSs] is underway and there is enthusiasm about further integration of the benefits and capabilities of automated transportation onto state highways, policymakers are eager to learn more about the intersection of this new wave of technology with the existing legal infrastructure. Specifically, policymakers are interested in whether the existing law prohibits or impedes testing or deployment of the technology or, conversely, whether greater legal oversight may be desirable. (2016) To this end, many countries, states/provinces, and local jurisdictions are beginning to develop statutes, regulations, and policies with regard to the integration of these vehicles into the existing transportation network, often through the use of pilot tests. These guidelines are also being instituted with regard to the registration of C/ADSs and the regulations for drivers who are testing/deploying such vehicles. However, as noted by Davidson and Spinoulas (2015), laws are often cited as one of the primary obstacles to the effective and efficient integration of C/ADSs onto public roadways. This has largely been the case because, up until recently, there was limited federal regulation within this area, and OEMs, transportation network companies, and other technology developers also questioned the role of states and local governments in making C/ADS-related regulations. Up until October 2016, when NHTSA released its official policy on autonomous vehicles and cyber security in autonomous vehicles (NHTSA, 2016), many states also adopted a wait-and-see approach before striding into the regulation and oversight of this new technology. The roll-out of laws and regulations is not without complexity, and this has impacted the passage of legislation. For example, the July after the May 2016 Tesla crash, Missouri Governor Jay Nixon vetoed truck platooning legislation (Elfin, 2016). In this incident, a 2015 Tesla Model S, with the “Autopilot” reportedly engaged, struck a 53-foot semitrailer in Florida and the driver was killed (Vlasic & Boudette, 2016). Tesla’s statement indicated that the vehicle’s Autopilot system did not notice “the white side of the tractor trailer against a brightly lit sky, so the brake was not applied” (StreetInsider, 2016). NHTSA subsequently opened investigation PE16-007 to examine the design and performance of any ADSs in use at the time of the crash (NHTSA, 2016b). Other, more recent, crashes also highlight the complexity of legal changes and policy directions. The literature review covered five major areas (1) U.S. federal activities within the sphere of regulating C/ADSs, (2) state and local activities that are taking place, including a review of all 50 states to ascertain

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 12 the state of the practice in this area, (3) activities being undertaken by transportation agencies within this field, with a focus on the AAMVA’s activities, (4) a review of law journal articles that have begun to lay out specific subject matter focus areas for policy-makers and legislators to consider as C/ADS market penetrations grow as well as a review of privacy laws, and (5) a high-level scope review of international activities being undertaken in this area (e.g., Canada, Mexico, European Union, Australia, and Japan). A review of legislation throughout the U.S. and internationally showed that, from a legal and regulatory perspective, legislating for C/ADSs is just beginning. Currently, 29 states and the District of Columbia have passed legislation related to driving automation system-equipped or ADS-equipped vehicles, while governors in another 10 states have issued executive orders. Three of the states, Maine, Wisconsin, and Washington, have enacted both legislation and executive orders (Figure 4). Figure 4. Map of state automated vehicle-related activities as of June 2018. At the federal level, no new laws have yet passed out of Congress regarding C/ADSs. However, Congress has introduced legislation regarding issues related to the introduction of C/ADSs, such as privacy. It is expected that further bills will be filed in the 115th Congress. NHTSA released updated policies in 2016 regarding C/ADSs and cyber security, and is expected to continue issuing regulations within this area. In addition, the Federal Trade Commission and Federal Communications Commission will continue to regulate in the areas of consumer protection and communications. Lawyers, law faculty, and law journal articles are beginning to parse out specific elements within law that may require revision. These have primarily focused on torts liability, and on privacy, cyber security, and some elements of constitutional protections regarding illegal search and seizure. The law journal article review revealed that articles have yet to discuss: • amendments to MVCs, • terminology that is or will become obsolete, or

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 13 • driver/motor vehicle code laws that may need revisions. The scarcity of scholarly articles is not, however, indicative of the level of activity occurring. The Uniform Law Commission, AAMVA, and the National Conference of State Legislatures, to name but a few organizations, are tracking state laws within this area, and have committees dedicated to reviewing laws and making recommendations for best practices and uniform laws. In addition, states are developing laws and regulations, and responding to private sector activities, as are quite a few notable local jurisdictions, including Boston and Pittsburgh. A final conclusion within the arena of C/ADSs is that this area is constantly evolving, and as new technologies and issues arise, federal and state governments will continue to develop associated laws, regulations, policies, and executive orders. 3.2 Key Findings Key findings from the literature review of the legal and regulatory landscape include the following: • While many jurisdictions around the world have begun to draft legislation and regulations, these are mostly focused on pilot testing and not on full deployment. • Academic legal articles have primarily focused on privacy, liability, cybersecurity, and constitutional protections. • There is little uniformity, and states and state legislatures are working in some isolation. DMVs are typically named the lead and federal policy is guiding efforts. • Many states are just now forming task forces or working groups. Readers of this report are encouraged to reference Appendix A, which consists of a sortable Excel spreadsheet (provided as a separate file) delineating activities at the federal level and in each state, with links to legislation or policy materials. The appendix also has sheets listing legal journal articles and other reports/articles from federal or state agencies, lists of HAV pilots/tests, and news articles.