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

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 23 Framing the Issues for Harmonization 4.1 Overarching Considerations Regarding Harmonization Individual state laws and regulations for C/ADS are vital, but equally important is ensuring that vehicles can operate seamlessly across state lines. Ensuring state laws do not substantially conflict can occur through harmonization, which is the process of minimizing redundant or conflicting standards that may have evolved independently (Pelkmans, 1987). Harmonization can create consistency of laws, regulations, standards, and practices, so that the same rules will apply across jurisdictional boarders. Harmonization is agnostic to the specific policy approach, and can mean moving all jurisdictions’ standards to the strictest standard, most permissive standard, a midpoint between the two poles, or to a more uniform standard. Harmonized state regulations for C/ADSs offer a number of critical advantages over a diverse and discordant set of state regulations. However, while harmonization has some advantages, there are some drawbacks, possible alternative strategies, and several areas that do not need harmonization for the safe deployment and operation of C/ADSs. The following subsections explore harmonization of motor vehicle codes and other rules governing C/ADSs, considering benefits, drawbacks, examples, and alternatives to harmonization. Potential Benefits Associated with Harmonization As with most regulatory discussions revolving around C/ADSs, the primary rationale for harmonizing state motor vehicle codes is to make vehicles and roadways safer for all users, improve enforcement, and increase driver awareness. Furthermore, the potential for substantial reductions in motor vehicle crashes, fatalities, and injuries serves as the driving force behind the generally supportive posture the public sector has taken towards C/ADSs (Strickland, 2013). At the same time, states are motivated to remove any barriers to the operation of safe C/ADSs to encourage private sector investment and research into this technology. Consistent, clear, and predictable rules across disparate political entities can reduce complexity for manufacturing and product development, potentially reducing costs to industry and consumers alike. Harmonization therefore touches issues that affect state policy makers and agencies, industry, and the traveling public alike. The business case for C/ADSs depends, in part, on state harmonization of motor vehicle codes. To the degree that similar regulations are in place across many or all states (for example, liability), some introductions of C/ADS technologies may be accelerated, increasing the market size. A-MaaS use cases, for example, rely on a “network effect” to function effectively (Rogers, 2016). Services like A-MaaS must build out a robust network of users to function, and states with consistent rules make it easier for companies to build a user base across state lines. The business case for C/ADSs in CMV operations can also depend on harmonized state motor vehicle codes and regulations. For example, many goods reach markets via CMVs, and ensuring their safe and efficient operation is important for other road users, the companies receiving and shipping the goods, and the users of the goods. Harmonized state motor vehicle codes can reduce the regulatory burden on CMV operators transporting goods across state lines, and may also be relevant as platooning CMVs enter the transportation network. From a broader economic perspective, harmonization offers a seamless regime that facilitates the free flow of goods and commerce across borders without regulatory barriers.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 24 When there are disparate approaches to regulating specific aspects of vehicle equipment, manufacturing costs may rise (Canis and Lattanzio, 2014). Harmonization at the state and local levels can reduce these costs, which in turn is likely to benefit consumers through lower product prices and a more efficient technology rollout. This efficiency stems from the regulatory consistency that is provided for manufacturers of vehicles, as well as system developers regarding uniform vehicle functionality, external markings, and several other areas that could help reduce development and implementation complexity and accelerate market introductions. Another motivation for harmonization is facilitating data sharing between states, such as improving interstate consistency for vehicle records designations (e.g., titling). Note that harmonization of areas such as liability and insurance requirements may need to be approached based on the type of consumer ADS application. Within this analysis, harmonization considerations are presented in in terms of consumer ADS applications (C/ADS-equipped passenger vehicles and A-MaaS; see Chapter 1 for definitions) explored throughout the stakeholder feedback activities (Serian et al., 2017). Potential Drawbacks of Harmonization While harmonization offers many advantages for states, industry, and the traveling public, there are also downsides that bear consideration. Perhaps the most obvious concern a state might have regarding harmonization is a loss of control over policy decisions. Under the Tenth Amendment to the Constitution, states maintain powers not designated to the federal government (U.S. Const. amend. X). Harmonization can reduce complexity by aligning a disparate set of rules or regulations. However, doing so can also cause problems if the harmonized rules are inappropriate, premature, or have other flaws. If an industry or product is not technically mature, for example, establishing rules prematurely could hamper innovation by restricting the product or industry in ways that may not improve safety or efficiency. If states harmonized to a premature or inappropriate set of rules, the problematic rule would shift from being a local or regional problem to being a national problem. For this reason, those involved in the harmonization process should carefully consider the costs and benefits to all stakeholders and interests, including manufacturers and the traveling public, both with regards to safety and cost. Beyond overt disadvantages, there are also basic questions of necessity when considering harmonization across all states. Harmonization is not a simple or speedy process, and typically takes several years to complete. Due to the slowness and difficulty of harmonizing regulations, states may wish to avoid harmonization for areas that are neither necessary nor beneficial. For issues that do not expressly need state harmonization, each state could ensure their laws and/or regulations are clear, in particular as they relate to core terms and definitions (e.g., drive, driver, operate). Additionally, states could require that all vehicles follow the rules of the road, regardless of whether a human driver or the ADS performs the DDT. However, flexibility in interpretation and execution of the rules of the road is also important, in that rules enable vehicles—both ADS and human-operated—to make reasonable decisions in a complex and dynamic operating environment. Harmonization may also be unnecessary when regulating certain aspects of C/ADS, as some manufacturers may develop the ability to automatically adjust to new parameters and requirements whenever crossing state lines or any jurisdictional boundaries. As an example, A-MaaS operations areas may gradually expand as regulatory regimes evolve. In much the same way that C/ADSs will need to adjust automatically to each roadway’s speed limit, developers could potentially include automatic adjustments for other non-hardware related regulatory provisions.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 25 Some stakeholders were very pessimistic about the likelihood of harmonization occurring (Serian et al., 2017). They noted that states fundamentally work at different paces, so there will be regulatory differences despite states’ best efforts. Further, even though there are examples of successful harmonization (e.g., the Manual on Uniform Traffic Control Devices [MUTCD]), in many stakeholders’ minds, there is “no mechanism for national harmonization.” Without such a mechanism, harmonization will likely prove challenging. Furthermore, each state has its own unique formation of regulatory agencies, particularly with regard to the jurisdiction of for-hire vehicles and A-MaaS services. In California, Pennsylvania, and a number of other states, Public Utilities Commissions regulate for-hire vehicles at the state level. Meanwhile, in states like New York, local-level governmental entities regulate taxis and for-hire livery vehicles, like the New York City Taxi and Limousine Commission. These commissions do not use motor vehicle codes to create regulations, and instead, implement any regulations or policies they choose unless states preempt local rules (National League of Cities, 2017, p. 12; Moran, 2017). In some cases, industry standards could be the best source for a regulation’s required technical details; however, this is highly situationally specific. Further, it should be noted that industry standards typically take several years to complete, although the creation of industry standards is generally faster than developing new federal regulations. Historically, industry standards development organizations have served the role of addressing design specifics without direct government involvement. As an example, SAE developed a taxonomy for ADSs (see Figure 2) that helps industry, government, and other stakeholders understand and converse about different levels of vehicle automation (SAE, 2018). Industry and stakeholders worked together to develop these definitions, and formal state or federal regulations were unnecessary. There are several topic areas addressed in this study, such as registration, which are relevant to but do not have technical impacts upon ADSs and have not historically required state harmonization. In these cases, we recommend against harmonization simply due to new factors added by ADS capabilities. Additionally, broad harmonization may not make sense in situations where the applicability of particular use cases is low for certain states or regions. For instance, states without significant urban areas would be unlikely to prioritize A-MaaS for modifications to their driving codes. These jurisdictions are more likely to adopt changes similar to larger states if markets for these use cases eventually become relevant. Lastly, in the event of federal pre-emption of ADS equipment and operation aspects, harmonization is achieved through invoking federal authority. This is discussed further below. Upward Versus Downward Harmonization As noted earlier, the simple act of harmonization should not be the end goal for states. There is a critical difference between upward and downward harmonization. In upward harmonization, states with less stringent regulatory regimes harmonize with states with more stringent requirements. In downward harmonization, the equilibrium for agreed upon standards is driven to the lowest common denominator by the states with the most lenient regulations and requirements. Recent experience in the U.S. demonstrates the potential for downward harmonization. States briefly suspended regulatory efforts in 2015 after several years of various states passing C/ADS testing regulations. The pause in laws occurred when the industry responded to new C/ADS testing regulations by moving their testing and development work out of states with testing laws, such as California and Florida, to states without testing regulations that did not require testing companies to register or seek permission prior to conducting public testing. As such, upward harmonization toward stricter standards solely for the sake of stricter standards should not necessarily be viewed as the states’ objective. The potential risk of downward harmonization, however, toward simply achieving the lowest common

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 26 denominator, is likely to produce a regulatory regime that serves industry’s, rather than the traveling public’s, interests. As harmonization activities proceed, these factors must be carefully weighed. Implications of Not Harmonizing Much of the above discussion has centered on the benefits that come from states harmonizing their vehicle codes and standards for C/ADS, but it is equally important to note the risks for industry and the broader public if such harmonization, where needed, does not occur. Without harmonization, industry faces what has been termed a “patchwork quilt” of state regulations. The risk associated with the failure to harmonize standards when needed is that industry testing and eventual deployment of C/ADS will be unnecessarily delayed and/or potentially not broadly available, the safety benefits of C/ADSs will be lost, and the lives saved from roadway fatalities will be lessened. Regulatory inconsistencies will create roadblocks for C/ADS testing and operation if the differences include conflicting standards or excessive overlapping of state, county, regional, and local requirements. This risk is associated only with a failure to harmonize those areas we have recommended for harmonization. For areas identified as not requiring harmonization, the impact on industry is deemed much less detrimental with regard to testing, development, and deployment of C/ADSs. This is a result of the current lack of harmonization in these areas across states. We believe industry can comply with any existing related provisions without impacting their timelines for C/ADS deployment or the manufacturing process. For hardware, design, and other fixed vehicle attributes, harmonization through federal preemption is likely necessary. Standards that address or prohibit allowable hardware, hardware mounting, or other hardware aspects essential to level 4–5 ADS-equipped vehicles could prove prohibitive to their interstate operation, thus conceivably blocking market introduction. 4.2 Alternatives to Harmonization Reciprocity Agreements Harmonization is not the sole mechanism for achieving seamless authority to operate a motor vehicle across state borders with different laws, regulations, standards, and practices. Reciprocity agreements represent a highly effective, and frequently utilized, alternative in which states sign agreements to mutually recognize each other’s licenses, share driver infraction records, or any other provision of vehicle codes that are necessary for operating vehicles in other states. Three examples of existing interstate compacts include 1) The Driver License Agreement, 2) the Driver License Compact, and 3) the Non-Resident Violator Compact (AAMVA, n.d.; National Center for Interstate Compacts, n.d.a; National Center for Interstate Compacts, n.d.b). Under these arrangements, states agree to mutually honor licenses issued by other states, share information regarding out-of-state infractions and driver safety, and allow for the processing of traffic citations across state borders. Most states take part in these arrangements: 44 out of 50 (88%) participate in the Non-Resident Violator Compact, and 45 of 50 (90%) participate in the Driver License Agreement, for example. These agreements ease interstate travel without the harmonization of state vehicle codes or licensing requirements. The process for a state to join a reciprocity agreement or interstate compact such as these can involve state legislatures ratifying the agreement and the passage of legislation to codify the content of the reciprocity agreement. This process can be lengthy, and historically, some states have taken years to sign these compacts. An example candidate for reciprocity could include permit requirements for platooning level 1 driving automation system-equipped vehicles. However, with the recognition of the obstacles to interstate compact agreements, this is not a preferred recommended direction.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 27 Model Law / Best Practice Language Another approach that can make the harmonization process much easier is drafting model legislation or best practice language. A model law is a complete piece of legislation, pre-made and ready for introduction into the legislative process. Best practice language is less formal, and features pre-crafted tenets or aspects of legislation that lawmakers can adopt into law. This approach is effective because it enables unfamiliar legislators to start from a prepared text rather than requiring each individual state, and each legislative committee within each state, to craft original language. In discussions with state administrators, we found that stakeholders view model legislation as a solid foundation for state laws and cross-jurisdictional reciprocity (Serian et al., 2017). Similarly, state DOTs echoed the importance of uniform regulatory efforts related to infrastructure improvements, such as interconnected traffic signals and other V2I systems for connected vehicles. Model laws or best practice language can be useful to technologically-naïve lawmakers, who do not have the time to become experts in the intricacies of the technology or its full array of policy implications. However, while model laws can be helpful, they are far from perfect, as there are rarely issues as complex as those surrounding C/ADSs that can be addressed within the text of a singular, universal bill. Additionally, variation among existing state codes can make it difficult to apply model laws, as doing so would require closely scrutinizing existing code and replacing it with model language. States, working with the legislatures, can then utilize the model language within the content of a bill, drafted according to their state’s statutes, codes, and regulatory agency structures. Associations such as AAMVA and AASHTO and the Uniform Law Commission are important resources and ideally should (with their members’ guidance and involvement) drive model law considerations. History teaches a lesson here as well. Model laws are difficult to get legislatively enacted in some states. The legislative process is complicated. Bills often change substantially from introduction to acceptance, which can reduce the effectiveness of model legislation. For these reasons, based on our interviews, many industry representatives favor the less prescriptive best practice language approach over that of model law when seeking harmonization; this is a lesson they learned through experience during past attempts to enact model bills across the states (Serian et al., 2017). Guidelines Lastly, states should consider the use of less prescriptive and more flexible guidelines at the state level. NHTSA used this mechanism with the issuance of non-binding Federal Automated Vehicle Guidelines in 2013, again in 2016, and further updated under the current DOT leadership (NHTSA 2013, 2016, 2017). Based on our stakeholder feedback, recent experiences in the C/ADS regulatory area have led many to believe that it is likely too hard to “go straight to regulations” and that an approach centered on the issuance of clear guidelines may prove to be better. When responding to questionnaires, several stakeholders, including manufacturers and technology companies, cited the State of California’s in-depth regulations for the testing and deployment of C/ADSs as a reason for moving their testing operations to other, less demanding state regulatory regimes, such as Texas and Arizona (Serian et al., 2017), which are following a more hands-off approach that places fewer restrictions on C/ADS testing on public roadways. Guidelines addressing key areas of needed legal changes, such as definitions, developed at the federal level with input from state- and local-level government entities and other stakeholders (e.g., national and state associations, citizen groups) can provide state policy makers with a starting point for their individual efforts. Further, guidelines may serve as a catalyst for harmonization across states.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 28 4.3 Consumer C/ADS Application Harmonization Considerations Just as there are varying levels of urgency for the recommended modifications and reviews that states should take to remove barriers to the operation of C/ADS-equipped vehicles on the roads, the same tiered urgency applies to the question of whether or when states should harmonize their vehicle codes to provide consistent standards across state borders. The importance of and need for harmonization is also often determined by the path to deployment of the various consumer C/ADS applications. C/ADS-Equipped Passenger Vehicle Harmonization Needs Harmonized regulations applying to personal C/ADSs will be essential to the long-term development of automated mobility. Some of these will be addressed via efforts to enable A-MaaS in the 2020 timeframe, with broad availability of personal C/ADSs coming shortly thereafter. In fact, initial personal level 3 ADS- equipped vehicles are now entering the European market. The European model year 2018 Audi A8, for example, offers a level 3 ADS traffic jam assist function (Davies, 2018). Platooning C/ADS-Equipped CMV Harmonization Needs Unlike personal C/ADSs and A-MaaS, truck platooning may require changes to state motor vehicle codes, and truck platooning will eventually evolve from first generation SAE level 1 driving automation systems (with full driver involvement in steering and monitoring the road environment) to level 4 follower ADS- equipped vehicles. This harmonization analysis focuses on level 1 platooning6 where there are relatively few areas affecting initial deployment, but the areas that do exist are essential to opening the way for this important safety and energy conservation application. The primary area is creating appropriate following distance rules for automated longitudinal control rather than human control of brakes and throttle. A-MaaS Harmonization Needs A-MaaS involves the use of level 4 or 5 ADS-equipped vehicles offered for commercial transportation on- demand. This will function similarly to today’s transportation network companies, such as Uber and Lyft, but without drivers. Several unique aspects of this service model will require additional modifications to state motor vehicle codes. For A-MaaS, aspects of inspection and vehicle maintenance will fall to the fleet operator, which may choose to adopt very high maintenance standards for purposes of quality control and ensuring high customer service levels. States will need to take care to avoid a situation where low quality A-MaaS services are able to shop around to find the state with the fewest inspection requirements and then operate their entire fleets under that state’s flag. At the same time, many major cities that are likely to be the primary focus for A-MaaS operations are part of larger, multi-state metropolitan areas, such as the New York City and New Jersey/Connecticut area or Washington, DC and its Maryland and Virginia suburbs. A-MaaS vehicles will need to operate seamlessly across such borders, even when not carrying passengers or safety drivers. 6 Consistent with North American Council for Freight Efficiency's Confidence Report: Two-Truck Platooning (NACFE; 2017), this harmonization analysis focuses on "near-term two-truck platooning opportunities where human drivers have their hands on the wheel and the technology is assisting the driver in getting better fuel economy by reducing aerodynamic drag through safely following another vehicle at shorter distances than an unassisted driver could maintain" (p. 3).

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 29 4.4 Examples of Past Harmonization Efforts Commercial Driver Licensing Harmonization has already occurred among the states for facilitating interstate transportation in commercial driver licensing policies for the motor carrier industry. FMCSA has worked closely with the states through AAMVA to improve licensing, testing, and training requirements for commercial drivers to ensure the highest level of safety on the roadways through harmonized standards. Harmonization efforts in this area have also focused on the free sharing of information through the Commercial Driver's License Information System (CDLIS),7 and the National Driver Registry to account for interstate activities and safety infractions (FMCSA, 2014). FMCSA establishes the minimum standards that states must meet when creating the processes for receiving a commercial driver’s license (CDL) or a commercial learner's permit (FMCSA, 2017). However, the actual administration of their CDL program, along with the issuance of the CDL itself, is primarily the responsibility of states. Furthermore, states may choose the specific design for their own application process, set the rate for license fees, determine their own license renewal procedures, perform inspection checks, and determine reinstatement requirements for drivers after a disqualification. The only caveat being that the federal standards and criteria must be met, although the FMCSA does issue exemptions, which the states must follow. Meanwhile, states may augment the driver’s licensing process with their own knowledge and skills tests; however, these tests must meet minimum federal standards8. To assist in the development of these tests, model driver and examiner manuals and tests have been prepared and distributed to the states to use, if they wish. As outlined in Serian et al. (2017), state stakeholders clearly indicated that, to accommodate changes due to C/ADS, current standards as codified in the Commercial Driver Safety Act and accompanying regulations for states should be updated by FMCSA in consultation with the states. States, however, should review their current laws and regulations that codify these federal requirements and consider modifications that would allow for easier incorporation of new provisions. 4.5 Federal Preemption The impetus behind federal preemption has historically been to avoid a patchwork of state standards and regulations. The federal government has strongly indicated it will address standards for C/ADS hardware and software such that state level regulations (or harmonization) will not be necessary, and that federal laws and standards could preempt state policy (NHTSA, 2016, 2017). Under this scenario, the harmonization of certain aspects of C/ADS regulations and standards would become moot as NHTSA (or FMCSA for motor carriers) would set standards, preventing states from enacting standards that differ from federal rules. Enforcement of federal standards would largely depend on the specifics of the policy in question; currently, many automotive safety and environmental regulations are enforced via self-certification, and this seems a likely avenue for future enforcement mechanisms (Canis and Lattanzio, 2014). As noted in the previous chapter, with the unanimous passage of the SELF DRIVE Act of 2017 by the House of Representatives, Congress has already begun to consider preemption of state and local regulations and laws pertaining to hardware and design features for C/ADSs. 7The CDLIS was established under the Commercial Motor Vehicle Safety Act (CMVSA) of 1986 and is based on the Federal Motor Carrier Safety Regulations (FMCSRs) in 49 CFR 383 and 384. 8 As outlined in Subpart G and H of 49 CFR Part 383.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 30 Prioritization and Harmonization Recommendations States should examine the fundamental legal concepts and terms that undergird their motor vehicle and transportation programs and consider how these concepts and terms will be affected by the use of C/ADSs. This is a time to assess and then act, rather than reacting or acting just for the sake of action. These latter approaches result in the crafting of piecemeal revisions and solutions to legal impediments and gaps as they arise, but fail to recognize the more strategic implications of specific law changes that go deeper than one piece of a state motor vehicle code. During the assessment process, states are advised to refer to NHTSA's guidance (2017) which encourages states "to allow DOT alone to regulate the safety design and performance aspects of ADS technology. If a State does pursue ADS performance-related regulations, the State should consult with NHTSA" (2017, p. 20). NHTSA notes 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” (2017, p.18). The legal review revealed 23 specific legal and regulatory modifications (Table 5; Wagner et al., 2018). Throughout this chapter, those modifications have been prioritized based on past experience, input from stakeholders (Serian et al., 2017), and the anticipated timeline of level 4–5 ADS-equipped vehicle deployment (Figure 4). All changes to laws and regulation should be girded by the state’s goals and objectives surrounding level 4–5 ADS-equipped vehicle deployment and an individual state motor vehicle code assessment. Within each prioritization timeframe, harmonization recommendations, if any, are discussed in terms of potentially-affected C/ADS applications (C/ADS-equipped passenger vehicles, platooning driving automation system-equipped CMVs, and A-MaaS; see Chapter 1 for definitions), which were explored throughout the issue identification and stakeholder feedback activities (Serian et al., 2017). In some cases, harmonization may be useful in reducing potential barriers or accelerating deployment, but is not essential for deployment. In those cases, we note that harmonization is useful (versus recommended). We also call attention to areas of law where there could be significant value in addressing the issues within individual states; these areas are not currently harmonized at the state level, and there is no specific reason to do so for C/ADSs. Table 5. 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 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.