Implications of Connected and Automated Driving Systems, Vol. 4: Autonomous Vehicle Action Plan (2018)

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NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 9 C/ADS Legal Landscape 2.1 Overview of the C/ADS Legal Landscape This chapter provides a brief summary of the C/ADS legal landscape. For a more detailed review, readers are encouraged to seek out the information included within (Loftus-Otway & Gallun, Updated 2018). The detailed review covers five major areas related to the C/ADS legal landscape: 1. U.S. federal activities within the sphere of regulating C/ADSs. 2. State and local activities underway, including a review of all 50 states to determine the state of the practice in this area. 3. Activities being undertaken by transportation agencies within this field, with a focus on 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 along with a review of privacy laws. 5. A high-level scope review of international activities being undertaken in this area (e.g., Canada, Mexico, European Union, Australia, and Japan). To supplement the broad overview, key findings from an in-depth state legal and regulatory audit are also included. 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. As of June 2018, 29 states have passed legislation related to driving automation system-equipped or ADS-equipped vehicles while governors in another 10 states have issued executive orders. Three states, Maine, Wisconsin, and Washington, have enacted legislation and executive orders (Figure 2-1). 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. In 2017, NHTSA released updated policies regarding C/ADSs and cybersecurity, and is expected to continue issuing regulations within this area. In addition, it is anticipated that the Federal Trade Commission and Federal Communications Commission will continue to regulate in the areas of consumer protection and communications A review of legal journals revealed that articles have yet to discuss: • Amendments to motor vehicle codes, or • Terminology that is, or will become, obsolete.

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 10 2.2 In-Depth State Legal and Regulatory Audit 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,1 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 completed to provide assistance to state agencies as they work to adapt their legal programs to reflect the realities of C/ADSs (See Wagner et al., 2018). 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 Uniform Vehicle Code (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 require those codes to be modified.2 The audit method developed was also intended to offer states a useful template or checklist for conducting their own internal state audits. 1 Readers should refer to Figure 1-1 for information on SAE driving levels. 2 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 Figure 2-1. Map of state automated vehicle-related activities as of June 2018.

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 11 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 2-1 presents a more detailed list of 23 state code provisions potentially needing modification or clarification. Chapter 3 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 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.

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 12 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 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, below is a full list of 23 recommendations for state code provisions that may need modification or clarification. States should find this checklist helpful as they begin to review their own state code provisions to identify the state codes that will require a more thorough front-to-back audit. Table 2-1. Critical Category Checklist for State Legal Audits 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 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.

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 13 Checklist of State Code Provisions Potentially Needing Modification or Clarification Recommendation 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 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 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 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 ADS-equipped vehicles for their drivers (while the ADS is unengaged) or passengers (while the ADS is engaged). 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/ADS. 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 ADS-equipped vehicles are not exempted from rules of the road requirements.

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 14 Checklist of State Code Provisions Potentially Needing Modification or Clarification Recommendation 18 Modify or adjust benchmarks to accommodate the decision-making abilities of level 3–5 ADS-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 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. 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 above 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 2-2 and Table 2-3) will help identify provisions that need further review and may require modification or clarification.

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 15 Table 2-2. 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? Table 2-3. 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)?

NCHRP 20-102(07) Autonomous Vehicle Action Plan – A Roadmap for States 16 POSSIBLE (NONEXCLUSIVE) QUESTIONS 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?