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 16 State Legal and Regulatory Audit 5.1 Overview C/ADSs present both opportunities and challenges for state agencies and lawmakers. Among the highest priority challenges is charting how C/ADSs, particularly SAE level 4–5 ADS-equipped vehicles, fit within the existing legal frameworks at the state level. Over the last 50 years, states have developed elaborate statutes, often consisting of hundreds of sections of state code, dedicated to regulating all facets of driving, vehicles, and underlying infrastructure. Most of these codes and regulations, however, were written without any anticipation of C/ADSs. When vehicles are driven by an ADS rather than a human (or a mix of both), existing state laws or regulations governing their safe operation may need to change in fundamental ways or at the very least may require numerous adjustments. While states are already responding to the challenges of automated technology, many find themselves operating reactively, responding to industry advances as they arise rather than proactively anticipating technological changes. A state legal and regulatory audit was done to provide assistance to state agencies as they work to adapt their legal programs to reflect the realities of C/ADSs. The research involved a front-to-back audit of 15 separate states codes and regulations (states were selected to represent a broad range of legal approaches), as well as the latest version of the UVC (2000), since the UVC served as the legal starting point for a number of state codes. The goal of the audit was to identify the types of legal impediments embedded in existing codes that may need to be modified. The audit method developed was also intended to offer states a useful template for conducting their own internal state audits. 5.2 Methods The focus of the audit was to identify legal provisions in state codes that are, or might become, obsolete, and may therefore require modification as C/ADSs become more commonplace. This seemingly straightforward focus proved to be complex in execution. The initial formulation of the task—to identify state laws in need of modification—was understood to be a focus on state laws that might impede the use of C/ADSs to the detriment of broader public benefits. For example, a state legal regime might ban the use of driving automation systems even after the technology is proven to be safer than a human driver.1 1 The vast majority of the raw audit data on the UVC and 15 states (i.e., key provisions with comments) is available on a dedicated web space. This information is available through a hyperlink and will be maintained for the foreseeable future (e.g., 5 years). See: https://utexas.box.com/s/341xa53e7yb8usyv0vjkjhtc45mtqfdr

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 17 Framed this way, the audit was expected to explore state codes with one question in mind: Do the state legislative requirements serve as a barrier to the use of C/ADSs on public roadways? However, in the course of reading state codes, it became clear that the task was much more open- ended. An overly narrow focus might neglect some of the most important laws in need of modification. For example, it is important for state policy makers to know if their MVCs exempt C/ADSs from legal requirements that apply to conventional vehicles. Similarly, while existing laws may not impede the use of C/ADSs, they may deprive potential beneficiaries of this technology (e.g., those currently not able to drive for medical or other reasons). There were also scenarios where the law may increase the likelihood of C/ADS-related accidents or disputes over responsibility. For example, yielding to blind pedestrians is a common requirement in state codes, yet it is possible that they will not be identified or afforded special attention by C/ADSs. While rules of the road and related requirements may not serve as barriers to the use of C/ADSs per se, some existing laws may complicate the successful deployment of C/ADSs. As a result, a broader set of reasons for provision modification was ultimately included. Given that the goal of the study was to provide information for DOTs, DMVs and law enforcement administrators, the goal was to identify as many issues and problems as possible. As a result, we erred on the side of false positives over false negatives, opting to identify too much rather than too little. The broader view of the study is illustrated below in Table 1. Table 1. Broader View of Task 3 Adopted in this Study Does the Law: Yes No Serve as a barrier to the use of C/ADSs on state highways (at any or all levels) Fail to treat C/ADSs symmetrically with human-driven vehicles (e.g., regarding rules of the road)? Fail to enable some of the uses of new technology, negating potential benefits? Place superfluous requirements on C/ADSs that do not impede but are unnecessary or excessive (e.g., mandating that steering wheels meet legislated specifications)? General Methodological Choices Fifteen States As discussed in more detail below, the laws and regulations in 15 states were considered. These states were selected to offer a range of legislative activity throughout the U.S. However, during the crafting of this report, other states not on this list were beginning to introduce legislation (some of which has yet to pass out of the state legislature or awaits executive signature) governing the integration of C/ADSs onto state roadways. Some states within our sample are also in the process of developing regulations to address

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 18 emerging C/ADS technology. For example, California proposed regulations for deployment and subsequently adopted these regulations in February 2018. In addition, federal agencies are continuing to develop strategies for dealing with C/ADS technology and the U.S. Congress has begun to draft bills governing C/ADSs. Accordingly, analysis in this area cannot be fully contemporaneous. Moreover, important legal challenges that fall outside of our sample and timeframe may have been missed and may only be identified after more states are examined. DMV and DOT Focus As many readers are aware, a plethora of legal issues are arising at the intersection of C/ADSs and the law. Issues of federal preemption and other existing federal standards for vehicles and traffic control devices, criminal acts that involve a car, and even the constitutionality of searching owners and their vehicles, are all cutting-edge issues emerging in C/ADS research. However, we were not tasked with addressing these or a host of other important questions. Rather, our investigation explores only a small part of the intersection between the law and C/ADSs—state MVCs and the legal responsibilities of DMVs and DOTs that might be impacted with respect to licensing and titling of the vehicles, licensing the “driver,” reviewing cybersecurity issues, and plans to accommodate C/ADSs within the transportation network. Readers are forewarned, however, that some of these state issues intersect with existing federal standards and developments, particularly with regard to vehicle standards, commercial vehicle restrictions, and traffic control devices. Assumption on Preemption Currently a delegation of federal and state government authorities provides oversight of the management, licensing, titling, and authority to manage automobiles and drivers. In this effort, it was assumed that NHTSA’s September 2016 Federal Automated Vehicles Policy delegation of duties and authorities between the federal and state governments would not be changed. NHTSA notes in the policy that under current law, manufacturers bear the responsibility to self-certify that vehicles they manufacture for use on public roadways comply with FMVSS. If a vehicle is compliant within this framework and maintains a conventional vehicle design, there is currently no specific federal legal barrier to level 4–5 ADS-equipped vehicles being offered for sale. NHTSA’s model state policy confirms that states retain their traditional responsibilities for driver licensing, vehicle licensing and registration, traffic laws and enforcement, and motor vehicle insurance and liability regimes. Modification Rather than Amendment While there is a fine line between the need for a wholly new amendment to existing law as opposed to a modification of an existing provision, we do not consider in this report the need for entirely new laws (e.g., regulating cybersecurity) that may be needed to address the novel risks posed by C/ADSs. These new challenges fall beyond an analysis of existing code provisions since there is no consistent benchmark or trigger for identifying when a new program might be useful. Instead, the need for a new program or requirement hinges on a number of policy and technical factors that fall well outside the scope of this audit.

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 19 Legislative and Regulatory Inventory Audit Method In this task, we reviewed the statutes and regulations in 15 states as well as the UVC for provisions that may need to be modified if states are to provide comprehensive legal oversight for the deployment of C/ADSs on public roadways. Each step is discussed in more detail below. Step 1: Selection of States The first step was to provide a representative view of U.S. states by selecting a range of those states. Since our focus here is on existing state codes that may need modification, we consider not only those states at the forefront of legislative or regulatory activity, but also those that have been relatively inactive. Five states had developed relatively elaborate legislative action as of November 1, 2016 (“Category 1 states” – high levels of legislative activity). Five states generally lacked elaborate legislation as of November 1, 2016, but were actively engaged in testing and/or deployment of C/ADSs (“Category 2 states” – low levels of legislative activity). The final five states appeared to fall at the opposite end of the spectrum in terms of their legal activity and general engagement with C/ADSs (“Category 3 states” – minimal to no legislative activity). The first 10 of these 15 states were targeted as part of the Task 2 Stakeholder Outreach efforts.2 We also included the latest edition (2000) of the entire UVC in our audit. While adoption of the UVC by the states varies widely depending on the provision (some provisions are almost uniformly adopted; others are almost uniformly rejected), the UVC provides a good starting point for examining state codes more generally. Particularly given our limited sample of 15 states, a review of the UVC may capture approaches taken by states not in our sample. For that reason, in our findings and analysis section, we typically open our discussion of each area of the law with the UVC approach.3 To select the Category 3 states (minimal to no legislative activity) we applied the following general criteria for inclusion: 1. No significant (i.e., minimal to no) legislative action had occurred in the state with respect to automated transportation as of November 2016. 2 California, Florida, Michigan, Nevada, Ohio, New York, Pennsylvania, Texas, Utah, Virginia 3 Using the UVC is not an endorsement of its potential use in states. Additionally, the UVC is clearly outdated, with its latest revision date occurring nearly two decades ago. Although it is outside the scope of our audit, readers should be aware that the Uniform Law Commission will be drafting a set of “model uniform laws” for level 4–5 ADS-equipped vehicles within the next 2 years. See, e.g., Uniform Law Commission, New Drafting and Study Committees to be Appointed (July 30, 2014), available at http://www.uniformlaws.org/NewsDetail.aspx?title=New%20ULC%20Study%20and%20Drafting%20Committees%20will%20be%20 Appointed. Other organizations such as the American Association of Motor Vehicle Administrators (AAMVA) and NHTSA (via the Manual on Uniform Traffic Control Devices for Streets and Highways [MUTCD]), are also actively involved in considering best practice guidelines and other sources of assistance to help guide states in the near future. See, e.g., MUTCD, available at https://mutcd.fhwa.dot.gov/kno_2009r1r2.htm and AAMVA Working Group, available at http://www.aamva.org/Autonomous-Vehicle- Best-Practices-Working-Group/.

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 20 2. The state fell at the lower range (25th percentile) of either population size or median household income or both. The state also fell in the lower third of state gross domestic product in 2016.4 3. The state fell in the lower third of population density (low density). Both criteria 2 and 3 make it more likely that the challenges posed by C/ADSs will be relatively low on the state’s list of legislative priorities.5 From the set of states meeting these criteria, we ultimately selected five states for inclusion in the 15- state sample. Our ultimate selection of the five states was not purely random; instead, we attempted to include a mix of states that vary geographically and by terrain. (In the course of our analysis we discovered that this was a good decision, as rules of the road vary among states with respect to conventions for farm vehicles, livestock, mountain curves, etc.) Our final list of Category 3 states consists of states in the southwest (New Mexico); north (Wyoming); Midwest (Nebraska and South Dakota); and south (Mississippi). Wyoming was added not only because of its low population density and varying terrain, but also because of its relatively high per capita income. The total list of Category 1, 2, and 3 states is provided in Table 2 below.6 Table 2. States Included in the Legal and Regulatory Audit State Category Description States Included Category 1 States with targeted legislation that clarifies the term “operate” or “drive” in place as of November 1, 2016, for all levels of C/ADSs and both testing and deployment. California Florida Michigan Nevada Ohio Category 2 States generally lacking elaborate legislation as of November 1, 2016, but in which pilot tests have occurred, and in which executive orders have been issued requiring studies to be undertaken. New York Pennsylvania Texas Utah Virginia 4 We used U.S. Census data for median income (https://www.census.gov/data/tables/time-series/demo/income-poverty/historical- income-households.html) and U.S. Department of Commerce data for gross domestic product (http://bit.ly/2vXGbxz). 5 We used the rankings provided here: http://state.1keydata.com/state-population-density.php 6 We resisted a pure “random” selection of the five states remaining in large part because we were concerned it would produce states that were too geographically similar – like South and North Dakota or Alabama and Mississippi. Hand selecting the final candidates allowed us an opportunity to gain more variation in the final five in terms of general differences.

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 21 State Category Description States Included Category 3 States with minimal to no legislative or executive activity, but where studies may have been undertaken by the DOT. Mississippi Nebraska New Mexico South Dakota Wyoming The resulting 15 states in this audit offer a range of legislative approaches to C/ADSs. The Category 3 states at one end of the spectrum operate under statutes and regulations that were passed with presumably no anticipation of C/ADS challenges. In the middle of the spectrum are Category 2 states like Texas that have been actively involved in testing C/ADSs, but have not passed significant legislation as of November 2016. These states operate under state codes that are not much different from those in the Category 3 states; however, codes in Category 2 states have included some provisions for C/ADSs. At the far opposite end of the range are Category 1 states like California, Michigan, Nevada, Ohio, and Florida, which have engaged in considerable legislative activity to accommodate C/ADS technologies. For purposes of spotlighting laws that are “in need of modification,” these Category 1 states tend to offer a useful point of contrast for how codes might be changed in the future. Step 2: Locating Provisions in Need of Modification Our initial and most substantial work was dedicated to a thorough read of 15 state codes. We started with the “laws,” identifying provisions that might need to be modified because they impeded automated transportation functionality or they were, or would become, no longer relevant. We conducted the audit of each state code by reading through each state code from front to back. Each code-reader employed a qualitative list of triggers (provided in Appendix A) to help identify these provisions. Please note that while systematic by its nature, the work was ultimately subjective.7 Initially, the inventory of legal provisions analyzed was created by extracting provisions that could be problems in the future and would therefore require modification. Trained law student research assistants conducted this work for four of the 15 states. The task lead, Wendy Wagner, and a licensed lawyer, Susanna Gallun, conducted the coding work on the remaining 11 states. As work progressed, a more comprehensive Microsoft Word file was created that included the provisions that were singled out as well as those we did not believe needed modification. Word files of all of the provisions that underwent this closer scrutiny, along with comment boxes and notes are available 7 Since this project attempts to chart the legal landscape with regard to state laws in need of modification in the wake of automated transit, the assurance of precision in coding from state to state seemed much less essential. We thus did not test for inter-coder reliability.

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 22 online. Wagner and Gallun also relied on the trigger list (Table 4 and Table 5) to help identify provisions in need of further study. Once all the code provisions that appeared in need of modification were identified, Wagner sorted the provisions into general categories and subcategories. The findings and analysis are based on these extracted groupings of provisions. After the analysis of state laws (codes) was completed, a review of state regulations was conducted in search of specific regulations that might a) require modification to avoid hindering the advancement/deployment of level 4–5 ADS-equipped vehicles, b) require significant amendments to meet existing safety goals, or c) might become irrelevant as fleets utilizing level 4–5 ADS-equipped vehicles grow in size. These programs included vehicle registration, driver testing, driver education, vehicle inspection, reciprocity requirements, and aftermarket modification. The remaining state motor vehicle regulations were then searched for general provisions that also might require modifications for the same reasons, or might create unreasonable civil or criminal offenses for an occupant or user of a level 4–5 ADS-equipped vehicle while it is appropriately deployed in automated mode. Step 3: Expert Ground-truthing and Peer Review The preliminary findings and analysis from Step 2 were shared with trusted regulators, Texas legislators, stakeholders, and academic experts to ensure that the analysis was complete and to obtain input/feedback. The Virginia DMV provided a draft review from the perspective of a DMV relying on this research to assist in implementing an overall strategic direction for automated transport. We selected the Virginia DMV for this more comprehensive review because Virginia was among the 15 states studied and the Virginia DMV indicated a willingness to invest the time of several staff members in the effort of providing a multi-person, front-to-back review of the draft report in a short time period (roughly 1 month). 5.3 Limitations Note that this general method, which involved an extensive reading of state codes in search of problematic provisions, is subject to several limitations. Even after culling hundreds of extraneous sections within a single state code, each state code still contained several hundred provisions requiring close review. (It is estimated that well over 5,000 separate legislative provisions were ultimately examined in the course of this audit). Human error when reviewing so many individual sections is inevitable. Additionally, as lawyers are well aware, a comprehensive review of a state legal program will miss some important nuances. Such exceptions might wholly change the meaning of other provisions in ways that can be discovered only after a careful parsing of the text. While these limitations are unavoidable in an audit such as this, they are important to keep in mind in interpreting the findings. To assess the status of any individual state, including those in our sample, one would need to conduct a much more thorough and court-grounded reading of individual state codes.8 8 Wagner read the section titles of all provisions within each state motor vehicle code and made an initial decision about those sections to exclude from the downloading process. The files uploaded at the previous footnote contain only those sections Wagner

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 23 Additionally, this search was exclusively for provisions in need of modification. If a state had already amended (i.e., modified) its law specifically to address legal challenges posed by C/ADSs, then these provisions were not included in our search. However, some of these new provisions were used in the course of the discussion to offer a point of contrast to existing approaches that need modification. As just one example, the majority of states have what are known as “visual display” restrictions on the use of television or video monitors. These monitors cannot be visible to the driver. Virginia recently amended its law to allow visual displays for the driver while a level 3–5 ADS-equipped vehicle’s system is properly engaged. Virginia’s current law does not, therefore, require modification, but is illustrative of one viable legal approach that other Category 2 and 3 state legislators and agencies might look to (see e.g., VA HB 454). 5.4 Key Findings The state legal and regulatory audit highlighted dozens of state code provisions that may need modification or clarification to reduce ambiguity and uncertainty as they apply to C/ADSs. The 10 most critical recommendations for potential modification or clarification are itemized below. 1. Definitions. Identification of fundamental terms that are in need of clarification or revision to provide predictability and consistency in the legal treatment of C/ADSs. These include “drive” and “driver,” “due care,” and “operator,” each of which occur hundreds and sometimes thousands of times in a single state legislative motor vehicle code and form the underpinnings of much of the code’s legal applicability and jurisdictional reach. 2. Legal Audit. A front-to-back audit of state codes that reveals not only where codes must be changed, but highlights where the absence of law is, in and of itself, an equally or even more significant problem. Table 3 presents a more detailed list of 23 state code provisions potentially needing modification or clarification. Chapter 6 further refines this list by organizing the potential areas for modification or clarification organized by timeframe for action (short-, mid-, and long- terms) and commercial application. This list may be adapted by states into a checklist as they move forward in developing their own action plans 3. Use of Data and Data Protection. A rigorous examination of the types of consumer data that could be collected by C/ADSs as well as by connected infrastructure located outside vehicles. States may also want to assess how third parties might use this collected data to compromise consumer privacy. This includes an assessment of whether some consumer data could be used by law enforcement or made publicly accessible through Open Records Statutes in ways that conflict with legitimate consumer privacy interests. 4. Truck Platooning. Adjustments to various existing legal requirements that affect truck platooning. To allow platoons on state highways, states should modify following distance requirements. The possibility of local restrictions that could conflict with state platooning believed were potentially pertinent, while still erring on the side of over-inclusion. Thus, only about one-half to two-thirds of the entire MVCs were ultimately downloaded.

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 24 programs should also be researched and addressed. Engineering analyses may also be useful to understand the effects of long platoons as they relate to current weight, length, and other restrictions. 5. Aftermarket. A mechanism to regulate aftermarket modification of vehicles that enhance or alter automated features. Vehicle registration programs more generally may also need to include new requirements, such as tracking the nature and type of automated features on a vehicle, but these new programs generally will not require modifications to existing requirements. 6. Operator Responsibility. Modification of criminal or civil laws that currently place full responsibility on operators and owners for violations and damages, even if the vehicle is operating appropriately in automated mode. 7. Human Judgment of Rules of the Road. Modification or clarification of rules of the road that require human judgment or visual cues, both for safe operation and for crash reporting requirements set by policy makers. 8. Vehicle Inspection Requirements. Modification of vehicle safety and inspection requirements to remove any unreasonable impediments to the use of C/ADSs. An assessment of additional inspection and vehicle requirements, such as requirements for software updates, may also be necessary to ensure safe C/ADS deployment; however, these are wholly new programs and generally do not require modifications to existing requirements. 9. Occupant Safety. Modification of legislative and regulatory requirements governing occupant safety (child seat belts) and requirements governing unattended vehicles operating at level 4 and above. 10. Driver Restrictions and Limitations. Re-examination of the licensing restrictions for specific types of driver limitations (e.g., seizure). States may want to revise their testing and education programs to ensure operator competence with automated features, although these changes will add to rather than modify existing legal requirements. As states use these recommendations to address their own codes, there are some important things to consider. For each desired modification, states (e.g., DMV staff or general counsel’s office) should identify which governmental institutions are legally authorized to make modifications. Because of the wide variation in how these responsibilities are structured in different states, these recommendations are generally directed to “states” rather than specific government entities. States also vary their legal delegations of authority to DMVs, DOTs and other relevant agencies. The nature of the statutory text itself will also affect whether legislative or agency modifications are necessary or possible. For example, prescriptive and detailed statutes will generally require legislative modifications because they allow state regulators little to no interpretive authority, which may prove problematic in the oversight of a quickly- changing technology. States will also need to identify the form the modification will take—e.g. laws versus regulations versus interpretation. These choices will also differ from topic to topic and state to state. Finally, states

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 25 should consider the type of public deliberations that are desirable for various modifications, particularly when the choices involve significant public policy considerations. With these important caveats regarding important state-specific choices involved in implementing modifications, a longer list of 23 recommendations for potential modification is presented below (Table 3) and may be located in the report State Legal and Regulatory Audit: Identification of State Laws and Regulations Potentially Requiring Modification (Wagner et al., 2018). Detailed analysis and explanations in support of these recommendations are provided in the analysis section of that report. DMV and DOT policy makers tasked with conducting their own audit may find the report particularly useful since it delves into the intricacies of the codes and regulations and explains the basis for the recommended modifications. Table 3. Critical Checklist for Modification (Wagner et al., 2018) Checklist of State Code Provisions Potentially Needing Modification or Clarification Recommendation 1 Conduct a critical review of fundamental vehicle code terms “drive,” “driver,” “operate,” and “operator,” and develop necessary clarification in terms, intent, and interpretation. 2 Address the possibility that vehicle codes can be interpreted to regulate only “drivers” (who are licensed and human) and exempt level 4–5 C/ADS-equipped vehicles from legal oversight. 3 Determine who can operate driving automation systems at different levels of driving automation and adjust the law for driver licensing requirements. 4 Develop driving tests (or amend existing tests) keyed to varying levels of driving automation systems. 5 Modify prohibitions against inattentive drivers depending on level of driving automation system deployed. 6 Clarify the meaning of laws that prohibit unattended vehicles, especially for level 4–5 C/ADS-equipped vehicles, including automated mobility as a service (A-MaaS) vehicles. 7 Amend statutes governing criminal and civil liability to leave open the possibility that when properly engaged, the ADS in a level 3–5 C/ADS-equipped vehicle could also be responsible in whole or in part for a resulting violation. 8 Consider when “reasonable suspicion” of alcohol or drug use is appropriate in specific ODD with a properly engaged level 3–5 C/ADS-equipped vehicle. 9 Clarify alcohol and drug use and regulation (including in states where marijuana has been legalized) within the various levels of driving automation. Develop offenses, fines, and sentencing terms for lower level violations at varying levels of driving automation. 10 Modify anti-distraction provisions to enhance the utility of C/ADS-equipped vehicles for their drivers (while the ADS is unengaged) or passengers (while the ADS is engaged).

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 26 Checklist of State Code Provisions Potentially Needing Modification or Clarification Recommendation 11 Memorialize, from the time of manufacture to junk or salvage on title and registration documents, that the vehicle is driving automation system-equipped. Consider memorialization of aftermarket technologies. 12 Consider culling obscure requirements that reference specific items (e.g. use “steering assemblies” rather than “wheels” and “braking systems” rather than “pedals”). 13 Modify agency inspection legislation/regulations to accommodate the new technological features of C/ADSs. 14 Revise or clarify existing laws with respect to whether and how they regulate aftermarket driving automation system-related technologies installed on a vehicle. 15 Determine responsibility for crashes, incidents, and harms that may not be the result of human error but rather flaws in the ADS as engaged at the time of the event of interest. 16 Modify lemon laws to account for new driving automation system-related technologies to ensure adequate consumer protection from product defects. 17 Identify how and whether the rules of the road apply to different levels of driving automation systems. Ensure that level 4–5 CADS-equipped vehicles are not exempted from rules of the road requirements. 18 Modify or adjust benchmarks to accommodate the decision-making abilities of level 3–5 CADS-equipped vehicles operating at level 3 or above, especially for the “due care” standard, which is tethered to human judgment. 19 Modify local controls over roadways for who can operate on them, the rules of the road, and consider issues of state level preemption. 20 Revise occupant safety requirements to take full advantage of driving automation system-equipped vehicles' sensory capabilities (e.g., seatbelts and child boosters). 21 Consider the need for modifications to “rendering aid” statutes for level 4 and 5 C/ADS-equipped vehicles. 22 Platooning related recommendations: a. Consider the need to modify following distance requirements for platoons on a state’s highways. This is particularly important in states that impose prescriptive following distances. b. Provide guidance and clarify the legal classification of truck platoons. c. Develop restrictions as needed if technical scan/engineering analyses identify any negative length, weight, and/or noise effects due to trucks operating as a platoon. d. Audit state laws and regulations that may impose lane restrictions or service requirements on platoons to develop harmonization across the state.

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 27 Checklist of State Code Provisions Potentially Needing Modification or Clarification Recommendation 23 Assess state policy protections for privacy-sensitive data collected on vehicles through connected infrastructure and vehicle transmission and also the implications of open records laws and the applicability of current state privacy protection statutes. Since each state will need to consider its own state codes, it is recommended that states begin with laws that might need to be modified because they impede automated transportation functionality or are no longer relevant. The checklist provided in Table 3 should help in that identification process. Once those codes are identified, a thorough front-to-back review of each state code is recommended. As states conduct their audit, the following lists of questions (Table 4 and Table 5) will help identify provisions that need further review and may require modification or clarification. Table 4. Triggers Used to Identify Problematic State Provisions – Core Questions CORE QUESTIONS THAT MUST BE RESOLVED IN THE SOURCES OF LAW It is important to find all provisions that speak to these questions. 1 What is an operator and does that operator need to be a human? This will be covered partly in definitions (“operator” and “person” are typically located in the first section of code requirements for operating a car); also look for clues as to whether the operator must have a license, and then whether that license must include fingerprints, etc. 2 Does an operator need to be present in the vehicle or can the operator control the vehicle remotely? 3 Even if the operator must be physically present, does the operator need to be actively controlling the vehicle? Are there accommodations that allow automation for handicapped drivers? 4 Are there other requirements that may impede ADS operations (e.g., operator must be attentive; operator must “see” the road)? 5 Can there be two operators (e.g., the human driver and the ADS manufacturer)? If so, can the ADS manufacturer bear most of the responsibility? 6 Are there rules of the road that seem specific to the roadway and that would require a human operator (rather than an ADS)? 7 If there are vehicle inspection requirements, do the vehicles require pedals, steering wheels, etc. in order to be allowed on the road? 8 What other intersections do you see between driving automation system-equipped vehicles and the states’ laws and rules? 9 Are there requirements that preclude texting, drinking, etc. while operating a car? These could place limits on the use of ADS-equipped vehicles. 10 Is it the state’s expectation that all existing rules of the road will apply to some or all levels of automation?

NCHRP Web-Only Document 253, Vol. 5: Developing the Autonomous Vehicle Action Plan 28 Table 5. Triggers Used to Identify Problematic State Provisions – Supplemental Triggers POSSIBLE (NONEXCLUSIVE) QUESTIONS 1 With regard to the driver, is there a provision for operating a level 4 or level 5 ADS-equipped vehicle (particularly an ADS-dedicated vehicle) without a human driver or manual driver controls? 2 Are there specific visibility requirements (e.g., operator must be able to see through windshield)? 3 Are there specific operator requirements that will restrict the usefulness of ADS- equipped vehicles (e.g., explicit requirement of a human “driver”; emergency requirements that the operator perform specific tasks)? 4 Are there requirements that constrain the operator (e.g., require an awake or alert human operator)? 5 Are there requirements that suggest the operator must be human (e.g., definition of person, fingerprints)? 6 Are there required vehicle features that imply a traditional human operator or that may become outdated with the deployment of ADS-equipped vehicles (e.g., steering wheel and/or brake pedals must be present)? 7 How is the legal responsibility for violations determined (e.g., operator in vehicle at time)? 8 Are there any rules of the road that are situation-specific (sensitive to conditions on the road at a given time) and might be difficult to code for as they require human judgment or situation-specific judgments (e.g., school bus or emergency stops, work zones)? 9 Are there particular requirements that might impede truck platoons? 10 Do protections exist for driver privacy (e.g., others cannot obtain driver’s license number or photo; license plate is not linked to private data)? Note, due to connectivity-related concerns, there may be a privacy risk associated with C/ADS data. 11 What are the terms of criminal sanctions and liability (e.g., leaving children in the vehicle unattended, driving under the influence, etc.)? 12 Under what conditions is there probable cause to investigate a vehicle?