Implications of Connected and Automated Driving Systems, Vol. 3: Legal Modification Prioritization and Harmonization Analysis (2018)

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NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 7 Framework for Change States are currently facing a changing vehicle environment, and there may be incongruities among existing vehicle codes across states. Accordingly, states could benefit from a framework that prioritizes critical legal and regulatory changes. This activity draws on previous efforts to identify and prioritize the likely law and regulation changes that states will need to make. Descriptions of the related preceding activities conducted as part of this NCHRP project are provided below. 2.1 The C/ADS Legal Landscape Loftus-Otway and Gallun (updated 2018) tracked the innovative legal developments occurring within the U.S. and internationally that seek to facilitate the smooth integration of C/ADSs into existing transportation structures. Readers are encouraged to review the Connected and Automated Systems Legal Landscapes document for considerations of legal and regulatory modifications that states have enacted or considered.1 The types of legislative activity state policy makers recommend and state legislatures enact may be the most pressing priorities for the deployment of level 4–5 C/ADS-equipped vehicles (Figure 4). However, a fair amount of enacted legislation focuses on testing, platooning, and the formation of task forces or study groups to determine next steps. The very suggestion of the need to form a study committee or task force indicates that Governors’ offices, legislatures, agency policy makers, and industry are taking a considered approach to law and regulation change. Enacted legislation also informs the priorities deemed important, including: • The formation of working groups and agency task forces, • A new vehicle designation for level 4–5 ADS-equipped vehicles, • Clarifying underlying definitions for driver and operator standard terms, • Platooning impediments and safety assurances, • Determining licensing requirements, and • Establishing rules for level 4–5 ADS-equipped vehicles and data usage. A review of more current legislation (with the exception of some states like California, Nevada, Michigan, Florida and a few others) also reveals that the majority of activity has been focused on testing. For example, in states like California with a greater number of level 4–5 ADS-equipped vehicles, related legislative activity is focused on revising existing and earlier enacted C/ADS statutes and deployment 1 This document was initially submitted to the NCHRP 20-102(7) panel in January 2017 and was subsequently updated in June and September 2017.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 8 regulations. This legislative landscape is instructive as it provides insight into states’ legal and legislative priorities. It also indicates what state legislatures are not considering, and what barriers may still exist. While legislation at both the federal and state levels is dynamic, testing and deployment activities demonstrate states’ priorities. Given manufacturers and other private sector lobbying activities regarding federal preemption, Congressional actions also illustrate federal priorities for regulation and industry oversight. On Sepetember 6, 2017, the House of Representatives unanimously passed H.R. 3388, the Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution (SELF DRIVE) Act of 2017,2 by voice vote. This legislation represents a consolidation of 14 individual bills related to C/ADS legislation the House Energy and Commerce Committee's Digital Commerce and Consumer Protection Subcommittee considered. H.R. 3388 (2017) will: • Advance consumer protections; • Reaffirm the role and responsibilities of federal and state governments (i.e., designate NHTSA as the lead agency for regulating C/ADSs, pre-empting state rules on matters related to vehicle design, technology performance, cybersecurity, and other areas); • Update the FMVSS to account for advances in technology and the evolution of level 4–5 ADS- equipped vehicles; and • Maximize opportunities for research and development. This Congressional Action, coupled with a cautious process before regulatory actions are undertaken by NHTSA, presents a clear message to the states.3 States not yet taking regulatory action may benefit from waiting until federal rules providing greater certainty and clearer role designations are in place. For example, NHTSA (2017) suggests that “allowing NHTSA alone to regulate the safety design and performance aspects of ADS technology will help avoid conflicting federal and state laws and regulations that could impede deployment.” However, the drawbacks associated with lengthy and slow legislative processes (e.g., the inability of the regulatory process to keep pace with changing C/ADS technology developments and consumer applications) need to be carefully considered. As such, it is suggested that legislative or regulatory actions be within state purview (consistent with NHTSA's Best Practices for State Legislatures [2017]). To remain informed about the latest updates in legislative and federal policy debates, state policy makers should continue to engage with national associations and their state chapters. Example organizations include the AAMVA, the American Association AASHTO, the Governors Highway Safety Association, the National Conference of State Legislators, and the National Governors Association (NGA). Some states have aggressively enacted new legislation to regulate C/ADSs, some have reformed existing laws or regulations, and many others have taken no or minimal action (Loftus-Otway & Gallun, updated 2018). The key topics that states have considered range from platooning to definitions, from study mandates to privacy of data, and from liability to licensing and registration. Many of these areas are identified in Loftus-Otway and Gallun (updated 2018), Serian et al. (2017) and Wagner et al. (2018), and they are highlighted within this report as recommended priorities. 2 For additional information about the SELF DRIVE Act of 2017 see https://energycommerce.house.gov/selfdrive/. 3 The release of the updated automated driving systems guidelines, A Vision for Safety, on September 11, 2017 by NHTSA may help to reduce perceived uncertainty regarding federal intentions.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 9 2.2 Issue Identification and Stakeholder Feedback To develop a suggested framework for change, jurisdictional and resource stakeholders (described in the following sections) were surveyed via interest-specific online questionnaires and/or guided interviews to determine what recommendations they would suggest to facilitate the testing and deployment of C/ADSs (Serian et al., 2017). Two stakeholder feedback goals were to 1) understand the state motor vehicle code and regulatory reviews underway by states (i.e., jurisdictional stakeholders), and 2) to identify specific laws or areas of law potentially requiring modification as the result of C/ADSs. Another goal was to better understand the prioritization of these areas as well as the anticipated timeline for when modifications should take place. NHTSA’s Model State Policy (included within the Federal Automated Vehicle Policy document; NHTSA, 2016) was used as a guide to focus on those elements delineated for state responsibility.4 As Figure 4 depicts, stakeholders identified modifications to facilitate the deployment of passenger level 3–5 ADS equipped-vehicles as necessary in most areas in less than 5 years. This 5-year timetable is consistent with the deployment timeline guiding this project. Figure 4. Jurisdictional and resource stakeholder timeline priorities for levels 3–5 ADS-equipped-passenger vehicle deployment. The timeframe is important, but the question of what laws and regulations need to change is even more pressing. The priorities for law and regulations changes noted below draw on the findings from the stakeholder outreach effort (Serian et al., 2017). 4 While these efforts were informed by the Federal Automated Vehicle Policy (2016), the underlying assumptions regarding states' responsibilities remain the same with the release of NHTSA's updated automated driving system guidelines, A Vision for Safety (NHTSA, 2017).

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 10 Jurisdictional Stakeholders' Priorities The jurisdictional stakeholders — stakeholders representing state or provincial departments of motor vehicles (DMVs), departments of transportation (DOTs), and law enforcement agencies — recommend defining the role of the operator/human, addressing interoperability issues, establishing and/or implementing federal regulations/standards (for C/ADSs), and outlining data collection and cybersecurity standards. The following are some examples of stakeholder comments. • Enable use of level 4–5 ADS-equipped vehicles by defining the role of the human versus the ADS as an operator when the vehicle is in operation. Legal modifications need to begin by moving away from the definition of operator as exclusively human. • Realize the benefits of connected vehicles by defining the ODD and data requirements. • Outline who can use automated technology and in what circumstances. • Address issues related to the transition period when level 4–5 ADS-equipped vehicles and lower level vehicles are in operation together. Address issues related to the transition period when connected and non-connected vehicles are in operation together. Resource Stakeholders' Priorities Resource stakeholders located within and outside the U.S. (i.e., OEMs, suppliers, technology companies, insurance interests, and other interested parties) mentioned several of the issues noted above, including the need for definitions and common core standards for connected and automated vehicles, as well as model laws for data development, retention, and access. Priorities spanned those falling under both federal and state oversight. Following are some examples of these comments: • Acknowledge and define vehicle connectivity and automation in state motor vehicle codes, and begin making targeted changes to account for automation. • Increase the cap on FMVSS exemptions per vehicle manufacturer for level 4–5 ADS-equipped vehicles. • Fully develop and govern the security credential management system for connected vehicles prior to deployment. • Constrain the use of level 2 driving automation systems to the manufacturer’s intended ODD. • Work collaboratively to ensure stakeholder buy-in on modifications related to the levels of automation, such as vehicle registration classes and licensing. • Establish policies to collect data from level 2–5 driving automation system equipped vehicles in a consistent and accessible manner. • Begin to collect data about driving automation system-equipped vehicles on the road today, and establish mechanisms for pilot projects that will contribute to future policy development. Additionally, resource stakeholders noted issues with liability and insurance, ownership and licensing, and consumer education and training.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 11 While there were divergent views between public agencies and industry representatives on what the right list of modifications to law should be, there was one common thread throughout all input and current actions: the need for clear and consistent definitions (Figure 5). Figure 5. Consistent indication that clear definitions have highest priority. Resource stakeholders and jurisdictional stakeholders agreed on the timing, with most predicting modifications would be needed within 5 years. They also agreed on the priority of modifications: define the role of the “operator,” ensure common definitions for other key terms, establish and codify federal regulations or common core standards for level 4–5 ADS-equipped vehicles, and address data collection concerns or model laws surrounding data development, retention, and access (Figure 6). Figure 6. Commonly identified modifications noted by stakeholders through stakeholder input efforts. Jurisdictional stakeholders indicated a clear understanding of the need to consider law and regulatory changes, but they also pointed out the tempered and measured pace at which most states are changing laws and regulations, and the depth at which state motor vehicle code and transportation code reviews

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 12 occur. The finding that jurisdictions need to begin considering legal and regulatory changes was incorporated as an overarching priority in Wagner et al.'s (2018) in-depth legal and regulatory inventory audit. Accordingly, jurisdictions should complete a legal and regulatory inventory audit of their individual state motor vehicle codes and transportation codes. The final report for this NCHRP project will provide a checklist for this activity. Through discussions and interviews with stakeholders like AAMVA, it was found that policy makers understand the need for outreach and involvement, especially with regard to transforming initiatives (Serian et al., 2017). Also, as pointed out in recommendations for prioritization in Chapter 5, a considered approach, which recognizes the importance of initial and continued involvement of stakeholders, is an important overarching priority. 2.3 In-Depth Legal and Regulatory Review The in-depth review of 15 state motor vehicle codes and regulations is the third element used in this approach to prioritizing laws and regulations for modification. While the Loftus-Otway and Gallun's legislative overview and Serian et al.'s stakeholder input activities (updated 2018; 2017) were instructive in showing the landscape and alignment of priorities, Wagner et al. (2018) presents state policymakers with the realities of existing challenges within current laws and regulations and provides a different frame of reference. By examining the text of the statutes themselves, Wagner et al.'s (2018) legal and regulatory review assessed how well existing statutes are likely to hold up under the challenges created by C/ADSs. The Uniform Vehicle Code (UVC) was used in some instances as the base for considered changes, and those citations were supplemented with an appropriate code from of the 15 state motor vehicle codes reviewed. States selected for analysis were chosen to represent a range of geographic locations, population densities, and legislative activities. Each of the 15 selected states were categorized into one of three categories based on the extent of activity present: high, low, or minimal to no legislative activity. • Category 1 States: States with high levels of legislative activity. Includes California, Florida, Michigan, Nevada, and Ohio. • Category 2 States: States with low levels of legislative activity. Includes New York, Pennsylvania, Texas, Utah, and Virginia. • Category 3 States: States with minimal to no legislative activity. Includes Mississippi, Nebraska, New Mexico, South Dakota, and Wyoming. There are many uncertainties regarding C/ADS market penetration, but one thing is apparent: states, and especially state DMVs will be tasked with addressing the uncertainties in law and regulation. Several proactive associations have recognized this reality and have played varying roles in assisting state policy makers. For example, AAMVA has been actively involved in leading efforts related to needed law modifications in an effort to assist their member jurisdictions, emphasize interoperability and reciprocity, and share knowledge and information. Many stakeholders pointed to AAMVA as the lead association in assisting states in advancing model laws or best practices and noted that the organization plays a key role now and will continue to do so in the future (Serian et al., 2017). AAMVA has recognized the importance of having a continued role in the development of state model definitions or best practices and also acting as a facilitator to advance state-to-state interoperability and reciprocity (AAMVA Autonomous Vehicle Best Practices Working Group, personal communication, August 9, 2017).