Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit (2018)

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NCHRP 20-102(07) Interim Report 17 Findings and Analysis This section presents our findings and analysis of state motor vehicles codes and accompanying regulations. From our comprehensive reading, we developed categories and subcategories of provisions that may need to be modified to address C/ADSs. Perhaps not surprisingly, these categories of provisions track the same responsibilities that NHTSA suggests lie primarily within the state, as well as the categories utilized in the survey administered in Task 2. Before proceeding, readers should be aware of a few conventions that will assist them in making full use of this analysis section. First, as legal analysts, we view our primary responsibility as providing the reader with an understanding of the patterns that we see in our analysis of state laws and regulations. To achieve this objective, we use three parallel techniques that are borrowed from legal writing. First, we present our 15-state law analysis in the body of the text and use footnotes to present the data from our research. Readers who wish to know what different states in our sample ultimately did (or did not do) on a given provision will find the answer in the citations in our footnotes.22 The absence of a citation to a particular state law or rule means that we did not find examples from that state code or regulation to cite. In fact, some discussions explicitly indicate that a particular law is unusual and adopted in a minority of states from our sample; the citations in the footnotes will reinforce that message. Second, in situations where we believe it to be explicative—for example, where patterns and differences among states are particularly striking—we have provided links to tables in Appendix 1 to present text from different state statutes in our sample. Third, we include in the footnotes all relevant citations from the state statutes but not all potentially relevant state regulations. Instead, we include state regulations only when they offer a counterpoint or more detailed illustration of existing provisions in need of modification. Because state regulations are tethered to state codes, including their citations would be redundant and might even divert attention from the statutory changes. In addition, the statute will generally need to be changed before existing regulations can be modified. Finally, readers are forewarned that since our focus is only on existing laws that need to be modified, our analysis may skip over areas of the law where wholly new programs are needed. As one example, new state requirements governing financial responsibility and insurance may become important in the future for C/ADSs. Yet our search of the laws and regulations did not 22 In the footnotes, we provide pinpoint citations to the applicable statutes and regulations so that the reader can google the citation on the internet or locate the provision in our online library (available at https://utexas.box.com/s/6t86tid1dd8rakyqutlpljzsrcgljak7).

NCHRP 20-102(07) Interim Report 18 identify any existing laws that would need to be modified, and thus this topic is not discussed in this report.23 4.1 Driver and Operator Requirements Fundamental Terms and Concepts An analysis of the intersection between laws affecting C/ADSs and state motor vehicles codes necessarily begins with an exploration of the conditions under which C/ADSs can operate on state roadways. For much of the discussion in this section, as well as in following sections, the enforceability of various state requirements will depend not just on the legal terms, but also on the evidence available. Will enforcement officials actually know whether a vehicle is automated, the level of the automation, and whether it is operating in automated mode at a particular time in question? We will consider this problem in our discussion of registration requirements, but we note it upfront since it will be a practical impediment to enforcement of provisions, even after state codes and rules are modified to address the challenges presented by C/ADSs. Requirements Governing the Operation of C/ADSs At the heart of every state MVC is a decision about who is authorized to operate a motor vehicle. Nearly every other feature of the MVC—the rules of the road, the types of violations, the liability structure, requirements for vehicles, protections for privacy—step off from this first legal decision. Most of the MVCs in this audit were drafted well before there was even an awareness of C/ADSs. Thus, it is not surprising that there appear to be some significant gaps or inconsistencies in how the responsible operator is defined once the possibility of a level 4–5 ADS-equipped vehicle is introduced. Two competing sets of state categories emerge from the codes with regard to the definition of “operator.” The historically conventional approach of Category 2 and 3 states (low and minimal to no levels of legislative activity) in the application of this term is most prevalent, but also subject to the greatest ambiguity (and subsequent confusion). Category 1 states (high levels of legislative activity) approach the term “operator” in response to this ambiguity. (For purposes of this report, the Category 1 state codes do not require modification but rather provide a point of reference with respect to the Category 2 and 3 states.) 23 For a more complete explanation of our methods, see the discussion of “General Methodological Choices” in the Methods Section, supra.

NCHRP 20-102(07) Interim Report 19 Category 2 and 3 States That Have Not Amended Codes to Address Drive and Operate Ambiguities Basic Requirements for Operator Although the UVC is not always the dominant approach used when defining operator responsibilities, the UVC approach does prevail in the vast majority of states. (See Table A1 in Appendix 1: State Statute Examples .) The key terms and responsibilities governing the operation of vehicles in most states are formulated with the following structure: No person . . . shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license [emphasis added].24 The law governing the operation of vehicles involve three separate requirements. 1. Person. First, there must be a person. In all states a “person” is either not defined at all25 or, more commonly, is defined as a “natural person, firm, partnership, association, or corporation” or a variation on that theme.26 In general, the core definition of “person” thus makes it clear that the person need not be a human.27 Yet the definition also implies that a vehicle is not a person. This is particularly true in the states that define “vehicle” as separate and distinct from “person.”28 Thus, a manufacturer or OEM could be a person, but an individual vehicle could not. 2. Valid driver’s license. Second and likely more limiting, licensing requirements in all 15 states appear to limit license availability only to qualifying humans by virtue of the nature of the requirements. Human data (e.g., birth dates, photos, signatures, fingerprints, home addresses, social security numbers) are required in order to obtain a license. Additionally, to be approved for a license, the person must pass a variety of tests (e.g., vision, written, driving) and be free of enumerated human conditions (e.g., chronic alcoholism, mental disability, etc.) that are clearly geared towards humans.29 A person with a valid license, in light of these definitions, seems to narrow down viable operators to those who are human and who have obtained a valid license in the state. But how active and physically present does this human with a license have to be to legally “drive” or “operate” a vehicle? Does the human have to be seated behind the wheel or can the licensed 24 See, e.g., UVC § 6-101; UVC § 6-508 (same for commercial license). 25 See, e.g., WY MVC definitions. 26 Some states and the UVC tack on to this definition several added categories that include “limited liability, company or other legal business entity.” 27 In the states that do not have a definition, “person” might be interpreted in a common-sense way to include only humans. 28 See, e.g., UVC § 1-215; NV Rev. Stat. § 706.096 (Note that these examples are not exhaustive based on our 15- state sample.) 29 On the qualifying requirements, however, an argument could be made that a level 4–5 ADS-equipped car might ultimately pass all of these tests, although the test would need to be reconfigured significantly to make this possible.

NCHRP 20-102(07) Interim Report 20 human sit in a distant office and control multiple vehicles at once, while still “driving” or “operating” each vehicle? 3. Drive. From the standpoint of interpreting these provisions’ application to C/ADSs, the central term thus becomes the word “drive” (or “operate” in some states). In most state codes in our sample, these terms are treated interchangeably. (See fourth column in Table A2 in Appendix 1). States in our sample also include in this definition the additional option that a person is also “driving” if they have “actual physical control” over the vehicle.30 One could imagine, for example, that a driver who has lost control of a vehicle may not be “driving” it in the common sense understanding of the term, yet the person still retains “actual physical control” and hence is legally considered a “driver.” Thus, the three terms together— “drive,” “operate, or “be in physical control of a vehicle”—seem broadly to capture persons who have the capacity to control the vehicle. 31 Our analysis up to this point raises a series of questions, which we consider next. While some of these questions seem purely rhetorical, they spotlight the fact that these terms ultimately require further definition. Most Significant Source of Ambiguity – “Drive” and “Operate” For those states falling into the Category 2 and 3 approaches, the codes offer very little legal direction beyond the bare definitions. The terms are generally open-ended and subject to varying interpretations.32 Applying the operator requirements to C/ADSs thus produces significant ambiguity. The control a human may exert over a C/ADS, depending on the level of driving automation system, varies from nearly complete human control with only minimal types of assistance, all the way to virtually no control, where the “operator” is the ADS.33 In light of the incremental possibilities, future legal attention should be directed to more precisely defining what “drive” or “operate” means as a legal matter, as existing law leaves open many possibilities. As an example, California still seems reluctant to call a computer the “driver,” currently encoding in its Express Terms a definition of “driver” as the “human operator 30 See FL Stat. § 322.01(16); MI Veh. Code § 257.13; MS Code Ann. § 63-3-121; NE Rev. Stat. § 60-468; NM Stat. § 66-5-1.1; NY Veh. & Traf. § 113; PA Consolidated Stat. Ann. § 102; SDCL § 32-12A-1; TX Trans. Code § 541.001; UT § 52-2-102; UVC § 1-123; WY Stat. § 31-5-102. 31 UVC § 1-123 32 We are aware of judicial opinions in at least two states that reach broadly in defining “operate” or “drive” to include a sleeping person sitting behind the wheel of an idling car, for example. Further research on the judicial interpretations of these terms in the states would be extremely helpful to gain more purchase on how they have been defined over the years. Yet for a variety of reasons, it would make sense that the states would define “drive” very liberally to encompass highly irresponsible operations, including by persons who have fallen asleep, precisely for reasons of public safety. 33 As Anita Kim, et al., discuss in their preliminary report entitled “Review of Motor Vehicle Safety Standards (FMVSS) for C/ADSs,” there is a wide range of permutations in the relationship between a person and a C/ADS. Prepared for ITS JPO and NHTSA (Preliminary Report March 2016), available at https://ntl.bts.gov/lib/57000/57000/57076/Review_FMVSS_AV_Scan.pdf

NCHRP 20-102(07) Interim Report 21 of an autonomous vehicle when it is not operating in the autonomous mode.”34 But in anticipation of level 4–5 ADS-equipped vehicles that do not require a human driver, the Express Terms include the following definition: “(n) ‘Remote operator’ is the person that engages a vehicle’s autonomous technology but is not sitting in the vehicle”35 For this reason, we recommend that newer state laws and/or regulations refer to the SAE levels 0–5 in delineating operator requirements.36 This will allow agencies to make quick-turn adjustments in regulations if the SAE amends its definitions as the fleet evolves, without having to wait for legislation. Currently SAE level 0–3 vehicles will always need a human monitoring automated technology in case of failure.37 Level 4 ADS-equipped vehicles may need a human present (i.e., a dynamic driving task fallback-ready user), but not one as attentive as at lower SAE levels. Although futuristic, level 5 ADS-operated vehicles may require almost no human action at all, whether present or remote.  Recommendation: It is imperative that states, if they have not yet done so, review the fundamental terms “drive,” “driver,” “operate,” and “operator,” as well as any wording that arguably omits any restrictions on ADS-equipped vehicles. Any ambiguous terms should be clarified to provide consistency and reduce ambiguity. To gain some purchase on a plausible range of interpretations for these ambiguous terms, we identify, in Figure 2, two potential competing interpretations of the word “drive” or “operate” for states falling into Category 2 or 3. The first interpretation (on the top right) is in keeping with the spirit of the conventional understanding of the term. The second interpretation (bottom right) provides a broader possible interpretation of the term that might be better suited to C/ADSs. 34 California DMV. 2017. Autonomous Vehicles Express Terms, available at: https://www.dmv.ca.gov/portal/wcm/connect/211897ae-c58a-4f28-a2b7- 03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES 35 §227.90. Statements About Autonomous Technology, Authority cited: Sections 1651 and 38750, Vehicle Code. Reference: Sections 11701, 11713, and 38750, Vehicle Code. 36 For a recent example of Colorado’s effort to specify SAE levels within legislation, see Colorado, SB 213, enacted 6/1/17. 37 For example, in March 2017, California proposed regulations clearly stating level 3 in a newly added Section. 228.28, indicating when a driver should respond. See, e.g., https://www.dmv.ca.gov/portal/wcm/connect/211897ae- c58a-4f28-a2b7-03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES

NCHRP 20-102(07) Interim Report 22 Figure 2. Two Potential Competing Interpretations of the Word "Drive" or "Operate" The first interpretation (top right of Figure 2) institutes a narrow definition of “drive” based in part on how the word has been used in the past. The terms “operate,” “drive,” and “actual physical control,” with their common-sense meanings, would be interpreted to address only those situations where the user would be physically present, seated behind the controls in a driving automation system-equipped vehicle, and periodically engaged in the dynamic driving task. Under this interpretation, the possibility of some remote driver or dispatcher or a person who loads a vehicle, pushes a start button on the dashboard to program it, and walks away would not be included in the term “drive.” An even narrower legal definition of “drive” would require an active and attentive user who is wholly focused on the dynamic driving task. But this narrower definition, based on our code analysis, as well as judicial interpretations in some states,38 is a much less plausible interpretation. For example, the prohibition against users driving without a license should be read alongside other provisions (e.g., prohibitions against driving under the influence of narcotics or drugs or driving while fatigued or sick.)39 This very narrow definition of drive would provide a person who suffers from narcolepsy or drug addiction a compelling argument that they in fact were not “operating,” “driving,” or in “actual physical control” when they fell asleep at the wheel. Utilizing such a narrow definition would be counterproductive for assisting the deployment of level 4–5 ADS-equipped vehicles and would not fit with the typical, broader understanding of the conventional definition for “drive.” The second interpretation (bottom right of Figure 2) would read “drive” and “operate” still more broadly to include any user who engages a vehicle, including remotely, in order to bring it into operation. To maintain this, “actual control,” the user must presumably also have the ability to disengage the vehicle. While sweeping remote operations within the definition of “drive” requires adjusting one’s concept of operations, it does not appear explicitly prohibited by the 38 See infra notes 74-75 39 See, e.g., NM Stat. § 66-8-116.2. Human at the controls inside vehicle “Drive,” “operate,” or “be in physical control or Human engages and can disengage vehicle (including remotely) but does not need to be physically present or seated behind the controls of vehicle

NCHRP 20-102(07) Interim Report 23 definitions of the terms as provided in the state codes. Whether this broader definition conflicts with judicial interpretations in individual states requires more research. Texas (a Category 2 state) passed SB 2205 (signed by the governor on June 15, 2017 and effective in law as of September 1, 2017), which begins to outline and define some of these terms. We use Texas as an example here to point out that while states that fall into Categories 1 and 2 may have addressed some law changes, it is likely that they will need to address other changes as well. The elements within this second interpretation, however, still qualify a human operator as a natural person. In this law, “[a]utomated driving system” is defined to mean hardware and software that, when installed on a motor vehicle and engaged, are collectively capable of performing the driving task without any intervention or supervision by a human operator. This includes all aspects of the entire dynamic driving task, including operational aspects, tactical aspects (i.e., the human handlers), and strategic aspects (i.e., destination) for the vehicle on a sustained basis and fallback maneuvers necessary to respond to a failure of the system. • “Automated motor vehicle” is defined as a motor vehicle in which an ADS is installed. • “Entire dynamic driving task” is defined as the operational (steering, braking, accelerating, and monitoring both the vehicle and the roadway) and tactical (responding to events, determining when to change lanes, turning, using signals, and other related actions) aspects of operating a vehicle. However, it does not include strategic aspects, such as determining destinations or waypoints. • “Human operator” is defined as a natural person in an automated motor vehicle who controls the entire dynamic driving task and “owner” has the meaning assigned by current statute. 40 Additionally, the vehicle is not actually defined as the system. If the C/ADS is engaged, the owner may not be the entity licensed to drive, and no mention is made of “licensing” anywhere within the law. The precise definition of the “dynamic driving task” is critical to all aspects of both human and driving automation system roles, and the definition of this term will require further clarification, as it may be assumed that a C/ADS operating at level 5 would be able to control some strategic aspects, such as route choice. Practical Implications of Ambiguity At first glance, this ambiguity (i.e., these two plausible interpretations of the legal interpretation of “drive” as applied to C/ADSs) does not seem dramatic. Level 3 automation and below appears legal; level 4–5 automation, with no operator onboard, may not be legal depending on the interpretation of “drive.” One might conclude that under the narrow definition of “drive,” then, SAE level 4–5 ADS-equipped vehicles are not allowed in a state that follows this interpretation, whereas in the broader definition, they are allowed, assuming that some licensed “person” is able 40 SB 2205, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB2205. Texas also separates "operate" into two prongs. It gives the driver's license to the Automated Driving System (ADS), but makes the owner responsible for traffic violations. See, e.g., Texas Transportation Code § 545.453(a).

NCHRP 20-102(07) Interim Report 24 to exert control over engaging and disengaging the vehicle. (We assume that all automation forms require a “person” as broadly defined to engage them under even the most futuristic scenarios of self-driving vehicles.) Yet a closer look at the original formulation of the legal requirement governing operation of a vehicle reveals dramatic differences in these interpretations with regard to their ultimate legal implications for C/ADSs. The typical rule in most state codes that haven’t been revised is that “no person . . . shall drive . . . without a valid license.”41 The Category 2 and 3 state codes in our sample, however, do not impose the opposite requirement by specifically stating that “[a]ll vehicles operating in the state must be driven by persons (with a valid license).” It follows, then, that if the narrower definition of “drive” is adopted, level 4–5 ADS-equipped vehicles may not be regulated much, or at all. If a human is not onboard to quickly override the vehicle and “operate” it in the conventional sense, there is no “driver” or person with “actual control.” The vehicle does not then violate the requirement that a person driving have a license because there is no person “driving,” as defined in its narrow sense. Moreover, if there is no “driver,” then other provisions, particularly rules of the road, will also be inapplicable for level 4–5 ADS-equipped vehicles that fit this definition (i.e., no person onboard to take control at a moment’s notice).42 For example, if a level 4–5 ADS-equipped vehicle drove on the right side of the road or across traffic, there would be no “driver” in violation under this definition of “drive.” Despite their different legal implications, both interpretations—broad and narrow—may be legally viable if they have not been foreclosed by the agencies or courts. In his comprehensive analysis, Bryant Smith Walker reaches a similar conclusion. He concludes that the ambiguity inherent in the word “driver” means that driverless vehicles are “probably” legal provided that “there is likely to be some person connected to the vehicle who must be licensed, who may need to be physically present, and who must act prudently.”43 Summary In the barest form, then, Category 2 and 3 states offer a two-path approach to setting requirements for who can operate a C/ADS. The first narrow interpretation of “drive” as requiring a physically present operator would apply to ADS-equipped vehicles up through level 4 where a human “operator” is involved at some level that can be characterized as “driving.” After that, provided there is no person at the controls within the vehicle, a level 4–5 ADS- equipped vehicle falls outside of the legal requirements directed at “drivers.” The sharp line 41 UVC § 6-101. 42 According to Tennessee, recently passed bill HB 151: the engaged ADS is both the “driver” and the “operator”: Section 2. Tennessee Code Annotated, Section 55-8-101. (17) "Driver “means: (B) For purposes of an ADS- operated vehicle and when the context requires, the ADS when the ADS is engaged; (42) Operator “means: (B) For purposes of an ADS-equipped vehicle and when the context requires, the ADS when the ADS is engaged. However, the ADS is also a "person" in Tennessee: (46) Person “means a natural person, firm, co-partnership, association, corporation, or an engaged ADS.” 43 Bryant Walker-Smith, Automated Vehicles are Probably Legal in the United States, 1 Texas A&M L. Rev. 411, 480 (2014), available at http://cyberlaw.stanford.edu/publications/automated-vehicles-are-probably-legal-united- states

NCHRP 20-102(07) Interim Report 25 between legal controls over “drivers” would thus be defined by the point at which the person in the car is viewed as exercising “actual control.” (As mentioned, this point is hardly clear and itself would need considerable clarification and analysis.)44 The second, alternative interpretation of “drive” or “operate” in Category 2 and 3 states applies the requirements for “drivers” to level 4–5 ADS-equipped vehicles that move without human operators, provided a licensed “person” (likely human) has control over engaging and disengaging the vehicle.45 This includes remote operations. Except as specifically noted, in the remainder of the report we adopt this second, broader definition of the terms “drive” and “operate.” Specifically, a “driver” or “operator” is a human who is responsible for moving cars, but who can also move the car remotely from outside of the vehicle. We adopt this definition primarily for the sake of convenience to allow for a consistent definition to be used throughout the analysis. Yet regardless of how “drive” is ultimately interpreted, there are still substantial ambiguities that would benefit from clarification or legislative modification. It should be noted, however, that this ambiguity does not present a barrier to the introduction of C/ADSs on public highways. Indeed, the opposite is true: C/ADSs driven remotely may be able to operate outside of many requirements in a state’s motor vehicle code. This has been borne out by pilot tests in U.S. states and municipalities that have not had statutes put into place regarding level 3–5 ADS-equipped vehicles. Yet the resulting asymmetry in legal treatment—regulating human drivers while exempting computer driven cars—may be considered problematic, at least in the short term, when the technology is so new. Thus, this foundational element of the motor vehicle code regarding who can drive or operate a C/ADS and the need for any form of physical presence is a prime candidate for further research and possible code modification. When appropriate, in this report, we refer to “drivers” and “operators” largely as “users,” to encompass the differing roles of a human person in “driving” and “operating” C/ADS-equipped vehicles at various levels.  Recommendation: Policy makers should directly address the possibility that their vehicle codes can be interpreted to regulate only “drivers” (who are licensed and hence human) and that level 4–5 ADS-equipped vehicles are effectively exempt from legal oversight. Category 1 States That Have Amended Codes to Address Drive and Operate Ambiguities Category 1 is illustrated by a handful of states that have amended their state MVCs in order to address the legal ambiguities of who can drive in response to the introduction of C/ADSs. Although the details vary in the approaches ultimately taken, in all states following the Category 44 Does “actual control” end when the person is no longer sitting behind the controls, for example? Or does it link to the levels of automation. Level 4 regulations might be read to always involve a person who is “driving” regardless of their position in the car; level 5 regulations might be read to not include a person who is “driving.” 45 The dueling models should also not obscure other nuances that will arise, even if the broader option is ultimately adopted. For example, in this understanding of “drive,” does “drive” begin when a human first engages the vehicle in motion or when they program it before starting the vehicle?

NCHRP 20-102(07) Interim Report 26 1 approach, the legal status of C/ADSs with respect to terms like operator or driver are much clearer. An overview of Category 1 state statues is provided in Table A2 in Appendix 1. At one end of the Category 1 approach spectrum is California, whose regulations currently prohibit the use of C/ADSs (defined specifically) unless the user and the vehicle are both certified, registered, and insured under a defined pilot program. Essentially, then, the California approach separates out C/ADSs for special regulatory oversight. This resolves the possibility that C/ADSs could operate on the highways without restrictions or without special attention. At the other end of the spectrum is Florida, which expands the definition of “operator” to any person who “engages” a C/ADS, even if they engage the vehicle remotely.46 Florida is essentially legislatively codifying the broader definition of “drive” suggested above for Category 2 and 3 states. Specifically, a user who engages a C/ADS is an operator “regardless of whether the person is physically present in the vehicle while the vehicle is operating in autonomous mode.”47 In Florida, a valid license is still required to operate a vehicle. There are a number of various approaches between these two poles on the Category 1 approach spectrum as well. A number of states addresses C/ADSs with different levels of regulatory controls. Florida, Michigan, and Nevada, for example, distinguish operators of C/ADSs from level 0 and level 1–2 driving automation system-equipped vehicles and regulate them differently. But in all of these Category 1 states, the distinguishing feature is that the state has addressed the legal ambiguities of who can “drive,” making the classification of C/ADSs within the state’s code much clearer.  Recommendation: Policy makers should reduce definitional ambiguities. Category 1 states provide some examples of revised language, but a variety of options are possible. Driver Licensing Regardless of how “drivers” or “operators” are ultimately defined, in all states, users driving or operating a vehicle must have a valid driver’s license. Not all users are eligible for a license, however. Each state in our sample legislatively precludes the availability of a license to users with certain predefined characteristics, even if those users could pass the written and driving tests required in the state.48 See Table A3 in Appendix 1 for specific conditions. 46 FL HB 1207, Sec. 3, Sec 316.85. (2) “causes ….to engage”; TX SB 2205: Sec. 545.454 (a) “regardless of whether a human operator is physically present…”; GA SB 219, which will be effective in law July 1, 2017 defines at. Sec. 1, sec. 40-1-1., (38) “‘Operator’ means any person who drives or is in actual physical control of a motor vehicle or who causes a fully autonomous vehicle to move or travel with the ADS engaged.” 47 FL Stat. § 316.85. 48 Note that all states require testing of license applicants, but with respect to the details of the written or driving tests, DMVs typically decide what the requirements should be. Barriers or issues in need of modification thus fall largely within the regulatory sphere, an area outside the scope of our investigation. We thus do not delve into the specific types of tests or requirements to obtain a license.

NCHRP 20-102(07) Interim Report 27 While these restrictions on license eligibility do not impede the introduction of C/ADSs, they do present limits on who can benefit from the technology. Regrettably, in fact, many of the same users who hope to benefit from automated transportation may be disqualified by these state laws from operating C/ADSs. In fact, because of the barriers created by these legal restrictions, several states at the cutting-edge of C/ADS legislation have indicated that they plan to allow a different, presumably less rigorous license, for those operating ADS-equipped vehicles (with “operation” often more broadly defined to include simply engaging the vehicle).49 As Table A3 suggests, the states vary among and even within their codes with respect to defining users’ eligibility. In most states, however, there is typically a clearly-defined set of legislative criteria that identify some users who are ineligible, as well as a more open-ended set of criteria that are applied on a case-specific basis.50 The prescriptive categories generally include age-based restrictions. Several states also legislate very specific standards for eyesight. For example, in Virginia, the DMV “shall not issue a driver’s license . . . (a) to any person unless he demonstrates a visual acuity of at least 20/40 in one or both eyes with or without corrective lenses or (b) to any such person unless he demonstrates a at least a field of 100 degrees of horizontal vision in one or both eyes or a comparable measurement that demonstrates a visual field within this range.”51 (The legislature also directs how the test of horizontal visual fields should be conducted).52 Other license prohibitions are set by general standards rather than more inflexible rules. For example, the UVC and most states prohibit users from obtaining licenses if they have alcohol and narcotic addictions or mental and physical impairments that will interfere with the safe operation of the vehicle.53 Some states extend the ineligibility criteria to other conditions. For example, in South Dakota, restrictions are placed on users with diabetes who seek to obtain a commercial license to drive a bus.54 The actual assessment of whether a user falls into these more open-ended categories varies from state to state as well. All states presumably rely on “good faith”—that an applicant will self- report that they are ineligible based on the exclusions. But this good faith is sometimes supplemented by other third-party assessments. In some states, physicians and other medical professionals are required to report to the DMV those patients who are not fit to drive.55 In some states, the DMV staff may also declare an applicant ineligible based on observations made 49 See, e.g., FL Stat. § 316.85; MI Veh. Code § 257.35a; see also Provisional driver’s license granted to quadriplegic for semi-autonomous car (Oct. 3, 2016), available at http://www.businesswire.com/news/home/20160928005027/en/Nevada-Issues-Nation’s-Autonomous-Vehicle- Restricted-Driver’s. 50 In addition to considering licensing restrictions for individual drivers, states must also be prepared to amend existing law on commercial driver licensing rules to ensure these are compatible with any rules that the Federal Motor Carrier Administration (FMCSA) may promulgate for commercial driver licensing, motor carrier requirements, and truck platooning. 51 VA Code Ann. § 46.2-311(a). 52 Id. § 46.2-311(a)D. 53 UVC § 6-103. 54 SD Stat. §§ 32-12A-24.1—24.3 55 PA Stat. § 1518.

NCHRP 20-102(07) Interim Report 28 during the license application process itself.56 In today’s electronic environment, and with continually improving verification tools, the review of ineligibility for licenses may need modification, especially for users planning to utilize a level 5 vehicle. One other area that will warrant review for modification is the restricted driver’s license. This could be for a minor’s driver’s license application (between the ages of 15–18), or for those over the age of 18 where driving privilege has been revoked, but an exemption is necessary due to a hardship. Some states allow a minor to apply for a restricted driver’s license upon proving hardship for either economic, educational, or social reasons. Texas allows a minor between the ages of 15 and 18 to apply for a driver’s license if they provide evidence of an unusual economic hardship affecting their family to the extent of being denied the basic necessities for existence. Eight qualifying criteria can be invoked for a hardship license, including, for example, circumstances where the head of household must be absent from work to transport the applicant, or there is no transportation to and from school, or public transportation is unavailable, or the minor is the only other person in the household eligible for a driver’s license.57 Restricted licenses can also be issued to drivers whose driving privileges have been revoked if they can show certain hardships in accessing a workplace or school that necessitate the use of a motor vehicle. In South Dakota, a restricted license requires the applicant to furnish affidavits from either an employer denoting the need to operate a motor vehicle from residence to workplace, or a copy of a class schedule showing the need for use of a motor vehicle to attend school58, as well as an affidavit from the applicant noting there is no other reasonable alternative means of transportation to and from work or school.59 New Mexico places a restriction that the applicant’s driving is restricted from one hour before the applicant’s arrival at work or school to one hour after ending work or attending school.60  Recommendation: Policy makers will need to determine who is best suited to operate C/ADSs at varying levels of automation and adjust the law accordingly for driver’s licensing requirements. Over the longer term, once the majority of the fleet is at level 4 or above, current restrictions on licenses, such as sight, physical ability, mental capacity, and possibly even age, will require modification given that the driver will be the C/ADS rather than the human. Given the C/ADS as the driver, other restrictions on, or regulations regarding, removal of a driver’s license may also require modification. 56 VA Stat. § 46.2-322 57 Texas Transportation Code § 521.223 and 37 TAC § 15.28 58 SDCL 32-12-49.4, 32.23-11 and ARSD 61.19:02.02 Affidavits to be included 59 SDCL 32-12-16.4, 32-23.11 and ARSD 61:19.0203, Lack of Alternative Means of Transportation 60 NMAC 18.19.5.70 A.- Rn & A, Limited Driver’s License 18 NMAC 19.5.13.1, 9/14/00

NCHRP 20-102(07) Interim Report 29 Reciprocity Agreements and Interstate Harmonization All states recognize driver’s licenses from other states as presumptively valid and some states have passed more elaborate reciprocity provisions into their state MVCs. 61 If C/ADS create ambiguities for previously well-accepted terms and conventions, such as who is a “driver,” or a host of other issues raised below, then there is likely to be considerable variation among the states, at least in the short term, in addressing these legal questions. What these resulting ambiguities mean for reciprocity agreements is unclear and should be an issue of considerable interest over the next few years.62 Driver Testing All states require tests before issuing a license to drive. Currently, testing regimens focus on a basic skills test, which determines if the applicant can control and operate the vehicle and judge its position relative to other boundaries on the road, coupled with a test to ensure that the applicant knows rules of the road, and any sanctions for violations thereof. In addition, states also test the applicant’s knowledge of limits for driving under the influence, including age limits, and sanctions for violations. Some states will set a minimum test score for the applicant to be granted a license. States also set re-test timeframes, including specialized time frames for graduated license applicants, which is usually a minimum wait time for retesting. 63 Applicants taking a driver’s test are also required to take the on-road examination in the type of vehicle for which they are applying for the license. Looking at the types of maneuvers an applicant is required to demonstrate in a driving test shows areas where modification may be necessary. As an example, Table A4 in Appendix 1 shows the maneuvers tested in the current examination for a Class A or B driver’s license (non- commercial) in Pennsylvania,64 along with annotations of elements that could need modification for human test takers for level 4 to 5 ADS-equipped vehicle licensure. (In the cases of level 4 or 5 ADS-equipped vehicles, when the human will not be “driving” in the traditional sense of the word, these type of driving tests may not be required at all.) Pennsylvania, like many states, created the test standards without contemplation for level 4–5 ADS-equipped vehicles; the code was last amended in 1995.65 Category 1 states that have begun to create regulations for license testing with C/ADSs in mind provide some limited insight, although none have created a separate specific level 4–5 ADS- equipped vehicle driver licensing test. California and Florida still require the human to interact with the vehicle to be licensed (even in a level 5 ADS-equipped vehicle), whereas Nevada 61 See, e.g., NM Stat. c 66-8-137.4; WY Stat. § 31-7-201. Some state regulations also provide added detail, although there did not appear to be existing regulatory provisions that might be rendered obsolete in the regulations we reviewed. See, e.g., 43 TX Admin. Code §§ 217.40, 217.56 62 See also NCHRP Report, Challenges to Connected Vehicle and Automated Vehicle Applications in Truck Freight Operations at 40 (2016), available at http://www.trb.org/Publications/Blurbs/175965.aspx (raising similar questions about the harmonization of state laws to accommodate truck platoons). 63 67 PA Code §75.7 Driver’s License Examination Qualification. 64 Current through Pennsylvania Bulletin, Vol 47, Num 22, dated June 3, 207. 67 PA Code §75.15, 67 PA ADC §75.15 65 67 PA §75.15 Driving Examination for Class A or Class B Driver’s License

NCHRP 20-102(07) Interim Report 30 utilizes a license endorsement (although the endorsement is applied to a traditional license). An argument might be made that if the vehicle is equated to the driver as discussed earlier, the ADS- equipped vehicle itself should be required to pass test maneuvers currently presented to human drivers in traditional driving tests. Additionally, the ADS should know the various rules of the road, and the social constructs that govern humans driving vehicles, whereas the user (whether or not they own the vehicle) may not be required to have a license. Whether the ADS-equipped vehicle passes a “test” in the way currently framed (i.e., on the road with a test instructor), will need to be determined by the states and via modifications to existing statutes and regulations over time as fleets evolve. In addition, as more level 4 or 5 ADS-equipped vehicles become prevalent (especially those without a wheel or pedals), the test for the user will need modification, as the user will not be physically operating the vehicle. All states also conduct a separate test for a commercial vehicle license. Pennsylvania, for example, requires a “specialized knowledge examination,” which is, “An examination to determine the ability of the applicant to operate certain specialized commercial motor vehicles, including vehicles transporting hazardous materials in placardable amounts, tank vehicles, double and triple trailers, passenger carrying vehicles, school buses or vehicles equipped with air brakes, to add an endorsement or to remove a commercial driver’s license restriction from the commercial driver’s license.” 66 Modification here may well be necessary if the traditional “driver” role turns into an overseeing type role. For example, the dynamic driving task in a level 4–5 ADS-equipped school bus would be performed by enabled ADS instead of the licensed user. The user would monitor the situation and the children being transported. Those employing users licensed with a commercial driver license may also be required to keep records regarding employer testing programs. California, for example, requires that employers’ records include: • Details of employee, such as name, address, and license number. • Type of instruction, date(s) provided, including total hours of instruction and subject covered. • Details on instructor, such as name, address etc. • Any results of tests conducted with training. • Details on test examiner, such as name, address, etc., and their written contract with employer. • The employer’s testing program driver testing log, documenting tests provided and passed/failed tests for the past 90 days of certificate activity. 66 67 PA Code §75.2 Definitions

NCHRP 20-102(07) Interim Report 31 o The examiners log is also required to keep details regarding their contact details, license number, any further driving tests that have been conducted, and copies of certificates of driving skills. The employer is required to keep details on all training records for the most recent 3 years of the employer’s participation in a testing program and 3 years after the employer number is invalid.67 Again, if the commercial vehicle is level 4–5 ADS-equipped, and the licensed user is merely present in the vehicle for on-loading and off-loading, the types of testing required for the licensed commercial vehicle user and data collected for any types of training records may need to be modified. Education and Training Given that education and testing are intertwined, modifications to education materials may also be necessary. Category 1 states are marginally instructive in this area, but none have yet made any major amendments to their education and training statutes or regulations. For example, California, within its 2015 regulations for level 4–5 ADS-equipped vehicles, required registering those vehicles with the DMV and completing testing under controlled conditions, using qualified users who sit in the driver’s seat with the ability to take control of the vehicle, and a $5 million insurance or surety bond maintained by the manufacturer. In March 2017, California proposed amendments to its regulations regarding deployment. However, they did not make any major amendments to the testing and education code within this proposed rulemaking. Rather, they require manufacturers to maintain a training program for remote users that certifies they have completed the C/ADS’s “Driver/Operator Training Program, possess the “proper class of license for the type of test vehicle being operated,”68 that the training program includes instruction on the ADS technology, including how to respond to emergency situations and hazardous driving scenarios, and that the instruction match the level and technical maturity of the ADS.69 Where states have authorized various entities to conduct education programs, or pilot programs, new programs and requirements in existing regulations may be required to instruct institutions on the types of courses that can be offered, and the types of certificates that will be required. Education requirements may also need to be examined to possibly include new provisions and units to help users understand the appropriate times to engage and disengage an ADS, as well as how to operate during a handoff situation. However, this is strongly dependent on the approaches used by technology developers, which may vary significantly. 67 13 CCR §25.15 Commercial Drivers Licenses Record Keeping Program 68 §227.38 (f). CA DMV. Proposed Driverless Testing and Deployment Regulations, March 10, 2017. Accessed at: https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto 69 §227.38 (f)(1) and (2). CA DMV. Proposed Driverless Testing and Deployment Regulations, March 10, 2017. Accessed at: https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto

NCHRP 20-102(07) Interim Report 32  Recommendation: Policy makers should consider adding components to existing, or possibly adding new, tests to ensure that the user understands the functional limits of the ADS within their vehicles. This could include the ADS itself, dynamic driving task, minimal risk condition, operator and driver and operational design domain limits (weather conditions in which the car can safely operate without a human, and other such limiting factors, including the appropriate times to engage and disengage an ADS, as well as how to operate during a handoff situation), and an understanding of liability roles and duties. Sanctions The next section reviews how current statutes and regulations may prohibit or limit some of the benefits of C/ADSs through sanctions for civil and criminal offenses that may no longer be relevant. In addition, the Research Team also noted that some of these requirements serve as an impediment to the use of these vehicles due to restrictions that were developed for the human- driven vehicle that may not be applicable to C/ADSs. Violations Targeted at Inattentive Users Several different requirements regulate user behavior and demand a heightened level of attentiveness. Although the requirements are dispersed throughout the code, we categorize them together here to lend some artificial organization to the various requirements sprinkled throughout most state MVCs. The main sets of requirements fall into two categories. The first are provisions that will likely require some modification in order for ADSs to function safely. The second involve modifications that are not as essential, but would be convenient for users and increase adoption of this new technology. General Requirements Operator Attentiveness All state codes appear to allow C/ADSs, particularly at level 3 and below when there is a human user seated behind the controls A few states actually require that a human user be attentive and control the vehicle at all times. In New York, up until May 2017, “[n]o person [was allowed to] operate a motor vehicle without having at least one hand or, in the case of a physically handicapped person, at least one prosthetic device or aid on the steering mechanism at all times when the motor vehicle is in motion.”70 In New Mexico, “[a]ny person operating a vehicle on the highway shall give his full time and entire attention to the operation of the vehicle.”71 In Ohio and Virginia, the 70 NY Veh. & Traffic § 1225. The NY law was just amended. See NY SB 7879, available at https://www.nysenate.gov/legislation/bills/2015/S7879 71 NM Stat. § 66-8-114.

NCHRP 20-102(07) Interim Report 33 requirements of an attentive driver are more ambiguous, but the codes nevertheless can be read to require an attentive human user. In Ohio, “[n]o person shall operate a motor vehicle . . . without being in reasonable control of the vehicle.”72 In Virginia, “[a] person shall be guilty of reckless driving who drives a vehicle which is not under proper control . . . .”73 In these states, and possibly other states outside our sample that adopt “alertness” requirements, the ability of a user to benefit from the use of an ADS will be substantially reduced. Users will not be able to take their hands off the wheel or their eyes off the road while the ADS is engaged. Moreover, states with these provisions appear to adopt, by default, the narrower interpretation of “drive” in Category 2 and 3 states as previously discussed, since they seem to exclude the possibility of remote users (either “drivers” or dispatchers). However, these state requirements for full user attentiveness appear to be the exception rather than the rule. For the majority of states in our sample, the issue of attentiveness is not addressed. Instead, most of our 15 states leave the legal requirements governing attentiveness open-ended, mandating only that the “operator” or “driver” of a vehicle is that person “who drives or has physical control of a vehicle.” Indeed, it is not clear from the text of the state codes that the user must even be awake or seated in the driver’s seat. Case law supports this interpretation, at least in some states. In criminal interpretations of the Texas Code, the courts have held persons liable for “operating” cars if the engine is on, even if they are merely idling.74 In Lopez v. Schwendiman, the Utah State Supreme Court upheld the suspension of a criminal defendant’s driver’s license for operating a motor vehicle while under the influence of alcohol, even though at the time of apprehension the defendant was asleep and the car was parked.75  Recommendation: States with prohibitions against inattentive users will need to modify their statutes regarding inattentive driving, including providing definitions or clarifications for operating and attentiveness on the part of a human within a driving automation system-equipped vehicle when lower levels (level 2 and below) of automation are deployed, and where they may be required to take over operation of a vehicle, be seated in the driver’s seat, and awake. 72 OH Rev. Code § 4511.2020. 73 VA Code Ann. § 462.853. 74 See Denton v. State, 911 S.W.2d 388,389 (TX Crim.App. 1995), which found that starting the ignition and revving the accelerator was sufficient to find that the defendant “operated” the vehicle as an element in the “Unauthorized Use” charge required. But see also Texas Dept. of Public Safety v. Allocca, 301 S.W.3d 364 (TX App.-Austin), which found that a sleeping defendant in a driver’s seat parked legally on private property does not provide “probable cause” to believe that the vehicle had been previously operated. 75 Lopez v. Schwendiman, 720 P.2d 778 (Utah 1986); see also Garcia v. Schwendiman, 645 P.2d 651 (Utah 1982) (holding the same). Although the defendant argued that he was not in “actual physical control” of his car at the time he was apprehended, the Court found that he was. At times the state has favored a “totality of the circumstances” test to determine whether an operator was in “actual physical control.” State v. Prawitt, 262 P.3d 1203, 1208 (Utah Ct. App. 2011).

NCHRP 20-102(07) Interim Report 34 Unattended Vehicle The UVC and a number of states prohibit the user from leaving a vehicle unattended without adequate protections against movement.76 This requirement raises questions for level 4–5 ADS- equipped vehicles that may move without a physically present user or occupants. The UVC is illustrative. It directs that “[n]o person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key from the ignition, effectively setting the brake thereon . . . .”77 Pennsylvania imposes even more restrictions, holding that “[a] person driving or in charge of a motor vehicle may not permit a child under six years of age to remain unattended in the vehicle when the motor vehicle is out of the person’s sight and under circumstances which endanger the health, safety, or welfare of the child.”78 A conventional interpretation of this “unattended” prohibition in the UVC and other states would lead to a conclusion that vehicles are not allowed to move unless a human is present in the vehicle. (Note, though, that as long as occupants are present in the vehicle, the vehicles may not be considered unattended). Such an interpretation would present challenges for robo-taxis or other level 4–5 ADS-equipped vehicles that lack occupants, even if they are remotely controlled by a “licensed user.” Indeed, apparently to address this concern, Virginia amended its unattended vehicle restrictions to allow for unattended vehicles for shorter durations provided the vehicle does not pose a hazard or is not left for more than 24 hours.79 An alternative interpretation of these “unattended” legislative prohibitions might allow robo- taxis and other remotely controlled, unoccupied level 4–5 ADS-equipped vehicles if the state adopted a broad interpretation of “driver” (see Category 2 and 3 state discussion, in which the human operating a level 4–5 ADS-equipped vehicle is considered to be the “driver”) and interpreted “unattended” to mean that there is no “driver” actively in control. Combining these interpretations, a remotely controlled vehicle is not “unattended” because there is a “driver” with active control. This type of unconventional interpretation seems plausible (assuming the judicial interpretations are not conflicting with such an interpretation), although the interpretation may potentially stretch the term “unattended” too far. This is yet another example of the challenges that this new technology presents with regard to terms that were previously considered self-explanatory.  Recommendation: Policy makers should consider clarifying the meaning of laws that prohibit unattended vehicles, especially for level 4–5 ADS-equipped vehicles, and for A-MaaS fleets of shared C/ADSs that will be unoccupied when they go to self-park, are between rides, or are repositioning. 76 See, e.g., 75 PA Statutes and Consolidated Statutes § 3701; SD Consolidated Laws § 32-30-5; TX Transportation Code § 545.404; WY Statutes § 31-5-509. See also CA Vehicle § 22515; NE Rev. Stat. § 60-6,168; NM Stat. § 66- 7-353; OH Rev. Code § 4511.661. 77 UVC § 11-1101. 78 PA Consolidated Stat. Ann. § 3701.1(a). 79 VA Code § 46.2-1209

NCHRP 20-102(07) Interim Report 35 Criminal and Civil Sanctions Users can be charged with criminal acts for violating certain traffic laws, but when the car is operating with the ADS properly engaged, some of these criminal charges are less straightforward.80 Law enforcement officers, consistent with these laws, will apply protocols for reporting that will not allow the officer to note, much less account for the possibility that the vehicle rather than the human operator was responsible for the crash or legal violation. We consider provisions that, by their terms, may create criminal liability against a user in situations where the vehicle could be completely to blame or at least largely responsible for the resulting harms or violations. Along with changes to these laws, alterations to the law enforcement reporting methods will be necessary. Fleeing The UVC and a number of states prohibit a user from fleeing from a pursing police vehicle that provides visual or audible signals to stop.81 (See Table A5 in Appendix 1 for illustrative examples of state statutes.) The UVC, for example, provides that “[a]ny driver of a motor vehicle who . . . flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor.”82 To ensure that a vehicle with an ADS properly engaged does not “flee,” the ADS programming will need to ensure that the vehicle a) recognizes all types of visual or audible signals from law enforcement in a way similar to humans, and b) always pulls over, even when there are ambiguities about whether the signals or lights are intended for that vehicle. This programming may be simple, but if some C/ADSs have the potential to miss some of these visual and audible demands, the user might nonetheless be criminally liable for “fleeing.” Particularly for level 3 or below, the state can argue that a human operator could override the moving vehicle to come into compliance (although there will be credible counterarguments in some situations). Yet for ADS- equipped vehicles at level 4 and above, that malfunction could create criminal liability for users when the software or sensors does not register a visual or audible signal from law enforcement. Reckless Homicide One of our 15 states (Pennsylvania) and the UVC also hold persons liable for unintentional homicide in cases of certain violations committed while driving.83 Again, these criminal provisions could conceivably be applied against a user in a level 3–5 ADS-equipped vehicle with 80 See also Glancy et al., supra note 244, at 42 (raising this same concern). 81 See, e.g., CA Veh. Code § 2800.1 (referencing person rather than driver); MI § 257.602(1); Nevada Rev. Stat. § 484B.550; VA Cod Ann. § 46.2-817 (referencing person); WY Stat. § 31-5-225. See also CA Veh. Code §§ 20002—20003; NE Rev. Stat. § 60-696; NE Rev. Stat. § 60-697; NM Stat. § 66-5-29; NM Stat. § 66-8-138; NM Stat. § 66-7-201; NM Stat. §§ 66-7-203—66-7-208; NV Stat. §§ 484E.010—.050; OH Rev. Code § 4513.022; OH Rev. Code § 4549.02—021; OH Rev. Code § 4549.03; PA. C.S.A. §§ 3733, 3742, 3745, 3747; VA Code Ann. §§ 46.2-371—372; WY Stat. §§ 31-5-237, 31-5-1101—31-5-1105. 82 UVC § 11-911. 83 PA. C.S.A. § 3732.

NCHRP 20-102(07) Interim Report 36 the ADS properly engaged, even though the crash was the result of the technology rather than the user engaging it. The UVC, for example, provides that “[w]hoever shall unlawfully and unintentionally cause the death of another person, while engaged in a violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic, shall be guilty of homicide by vehicle when such violation is the proximate cause of that death.”84 Such an interpretation could apply if the user engaging the vehicle’s ADS is characterized as “operating” a vehicle and if that operation is interpreted as subjecting them to “engag[ing]” in whatever legal violations the vehicle itself commits. It is thus possible that a user could be charged with reckless homicide under this type of provision even if the vehicle was the cause of the death. At least one OEM has publically stated it will “accept full liability whenever one of its cars is in autonomous mode.”85 Other Criminal Acts Extensions of criminal liability could also apply to several state provisions that hold persons “guilty of reckless driving” because they “operate[]” a motor vehicle “at a speed or in a manner so as to endanger the life, limb or property of any person.”86 A plausible argument could be made in the context of C/ADSs that, if a user engages a level 3 vehicle and it malfunctions in a way that endangers life, then that that user is potentially subject to criminal sanctions for reckless driving. Somewhat similarly, New York holds the driver of a motor vehicle criminally responsible if they “cause[] physical injury . . . to a pedestrian or bicyclist while failing to exercise due care [to avoid colliding or give warning by sounding the horn].”87 An argument can again be made that if the vehicle’s ADS was properly engaged, the user would be criminally liable for the consequences of a crash if the ADS did not meet these legislative requirements. 84 UVC § 11-910. 85 See Volvo Car Group: Global Newsroom. U.S. Urged to Establish Nationwide Federal Guidelines for Autonomous Driving. October 7, 2015. Accessed at: https://www.media.volvocars.com/global/en- gb/media/pressreleases/167975/us-urged-to-establish-nationwide-federal-guidelines-for-autonomous-driving on October 23, 2015. 86 VA Stat. § 46.2-864. See also CA Veh. § 2800.2; OH Rev. Code § 4511.20; PA. C.S.A. § 3732. 87 NY Consolidated Laws § 1146.

NCHRP 20-102(07) Interim Report 37  Recommendation: Policy makers may need to amend their statutes governing criminal and civil liability to leave open the possibility that a level 3–5 ADS-equipped vehicle with the ADS properly engaged could also be responsible in whole or in part for a resulting violation. States may even consider creating a rebuttable presumption88 that in settings in which the vehicle’s ADS was properly engaged and yet a violation occurred, civil or even criminal liability falls on the OEM/suppliers/ and other technology manufacturers. The reporting system used by law enforcement will need to be modified as well consistent with these legal changes. Prohibitions That Limit Some of the Benefits of C/ADSs The provisions considered here do not create barriers to the deployment of C/ADSs, but they do create annoying impediments to consumers’ full enjoyment of these technologies. Specifically, these provisions tend to limit the ability of the user to lapse in their attentiveness or enjoy distractions while the vehicle’s ADS is properly engaged. Indeed, these types of provisions may well be the first to come under public pressure. Hence, these provisions might benefit from some anticipatory adjustments to reach solutions that do not compromise the overarching goal of public safety. Alcohol and Drug Prohibitions All states prohibit driving under the influence of alcohol and drugs. We consider here three different types of related requirements: users’ implied consent to be tested for alcohol and drugs, a prohibition on driving while impaired, and a prohibition against open containers. There are policy decisions to be made about whether some of these restrictions might be lifted in settings in which the vehicle’s ADS is properly engaged. Implied Consent The UVC and most, if not all, states also impose requirements for testing of drivers’ blood, breath, or other fluids in cases where an officer suspects that alcohol and drug restrictions have been violated.89 In most states, this implied permission for testing as a condition to a license is relatively broad. The UVC provides that “any person who operates a vehicle upon the highways of this State shall be deemed to have given consent to a test or tests of such operator’s blood or breath . . . and to a test or tests of such operator’s blood, urine, or other bodily substances for purpose of detecting the presence of drugs.”90 88 A rebuttable presumption can be overturned only if the evidence contradicting it is true and if a reasonable person of average intelligence could logically conclude from the evidence that the presumption is no longer valid. See: http://legal-dictionary.thefreedictionary.com/rebuttable+presumption 89 NE Rev. Stat. § 60-6,197; NE Rev. Stat. § 60-6,4,164 NM Stat. § 66-8-107; NV Stat. 484C.150—160; OH Rev. Code § 4511.191; VA Code Ann. § 46.2-341.26:2. 90 UVC § 6-517 (commercial vehicles); see also UVC § 11-907 (in fatal crashes); see Miss Code Ann. § 63-1-224, 63-11-5; SDCL § 32-23-10, § 32-12A-46 (commercial vehicles)

NCHRP 20-102(07) Interim Report 38 Generally, some type of “reasonable articulable suspicion” or “reasonable grounds” to believe alcohol has been used by a “driver” is needed to administer the tests.91 Thus, if there is evidence that the car was operating with the ADS properly engaged, a reasonable suspicion may not exist. Contrarily, given the limited time available to accurately test fluids for alcohol and drug content and the potential difficulties of establishing whether or not the ADS was properly engaged, for purposes of meeting the implied consent laws, reasonable suspicion may be satisfied more easily by a presumption that the user exerted some partial control. Other formulations of informed consent laws create even fewer impediments to testing drivers. In South Dakota, “[e]very person operating a vehicle which has been involved in an accident or which is operated in violation of any of the provisions . . . shall, at the request of a law enforcement officer, submit to a breath test . . . .”92 In Nebraska, if the driver dies within 4 hours after a motor vehicle crash, the coroner “shall . . . cause such tests to be as are necessary to determine the amount of alcohol or drugs in the body.”93 These provisions seem particularly harsh if drinking is allowed by law for users operating ADS-equipped vehicles at levels 3 and above. Until the legal ambiguities over who is a driver/operator are resolved and modified in statutes and regulations where appropriate, there could be confusion and a deadlock for law enforcement in administering these tests. For example, if a police officer pulls over a swerving car and the user maintains that the level 3–5 ADS-equipped vehicle was operating with the ADS properly engaged and hence by law they are not the “driver” or “operator,” is there a general presumption that implied consent applies or must the police officer rebut this defense with added evidence of some kind? Conversely, could the implied consent provision be interpreted too aggressively in ways that stigmatize user who are operating the vehicle safely, particularly if alcohol restrictions have been partly lifted for some SAE J3106 vehicle levels?  Recommendation: Policy makers and regulators should consider the conditions under which a “reasonable articulable suspicion” of alcohol or drug use is appropriate in settings where a vehicle is operating with the ADS properly engaged. For example, if it is possible for law enforcement to confirm at the scene that vehicle was properly engaged in automated mode at the time of the violation or crash, there can be no presumption of a “reasonable suspicion” that alcohol or drug use was the cause of the cash. Modification and clarification on how law enforcement can determine a reasonable presumption will need to be developed. 91 See, e.g., PA Consolidated Statutes § 1613(b). 92 SD Cons. L § 32-23-1.2. 93 NE Rev. St 60-6,102.

NCHRP 20-102(07) Interim Report 39 Restrictions Against Driving While Impaired The UVC and all states prohibit a person from driving while intoxicated or under the influence of drugs or narcotics.94 The UVC directs that a person shall not drive any vehicle while “under the influence of alcohol” or “any drug to a degree which renders such person incapable of safely driving” or that exceeds prescribed blood concentrations set in the statute.95 In most states, these general prohibitions are reinforced by legislative limits on alcohol and drugs in the driver. Nevada’s statutes are illustrative: it is unlawful for a person to drive if he or she “[h]as a concentration of alcohol of 0.08 or more in his or her blood or breath; or . . . is found by measurement within 2 hours after driving . . . to have a concentration of alcohol of 0.08 or more in his or her blood or breath.”96 In most states, alcohol for commercial vehicles and for minors are generally stricter, sometimes approaching a zero tolerance level.97 (See Table A6 in Appendix 1 for several illustrative state statutes.) If different SAE J3106 levels of automation are ultimately determined to justify relaxation of some of these restrictions (e.g., some drinking in the vehicle is acceptable for level 4–5 ADS- equipped vehicles), legislative modifications will be necessary. For example, a user might be legally classified as an “operator” or “driver” in some states as long as they engage the vehicle, even if they do not exert control over its movement. Modifications to the legislative requirements would thus be necessary to allow these users to be exempt from certain alcohol restrictions.  Recommendation: Policy makers will need to clarify alcohol consumption and drug use (including in states where marijuana has been legalized) and regulation within the various SAE J3106 levels of automation. Offenses for drug use and alcohol intoxication for potentially lower level violations will need to be developed, and fines and sentencing terms drafted for the courts. Drinking and Open Containers in the Moving Vehicle The UVC and some, though not all, states in our sample also prohibit drinking while driving and open containers in the vehicle.98 See Table A7 in Appendix 1 for illustrative state statutes. The UVC holds that (a) It is unlawful for a person to consume an alcoholic beverage while driving a vehicle on a public highway; (b) Except as otherwise provided in this subsection, it is unlawful for a person to 94 See, e.g., PA Consolidated Statutes Ann. § 3802; SD Cons. L. §§ 32-23-1 & 1.3. See also CA Veh. §§ 23136, 23140; NE Rev. Stat. §§ 60-498.01, 60-4,613, 60-6,196; NM Stat. §§ 66-5-1.1, 66-5-68, 66-8-102; NY Veh. & Traffic §§ 509-1, 1192; OH Rev. Code §§ 4511.19, 4511.194; PA. C.S.A. § 3718; VA Code Ann. §§ 46.2-483, 46.2- 341.18:1, 46.2-341.24—27; WY Stat. §§ 31-5-233, 31-5-234, 31-6-102. 95 UVC § 11-901. 96 NV Rev. Stat. § 484C.110. 97 See, e.g., CA Veh. § 6-51 (commercial vehicles); § 11-905 (zero tolerance for minors). 98 NE Rev. Stat. § 60-6,211.08; NM Stat. § 66-8-138; NV Stat. § 484B.150; NY Veh. & Traffic § 1227; WY Stat. § 31-5-235.

NCHRP 20-102(07) Interim Report 40 possess an open container of an alcoholic beverage within the passenger area of a motor vehicle while the motor vehicle is on a public highway. . ..99 Like the prohibitions on intoxication, some of these restrictions may be relaxed for ADS- equipped vehicles at level 4 or above if they are operating with the ADS properly engaged. Driver Distractions The UVC, along with most of the states in our sample, prohibit driver distractions. These distractions take the form of TV screens, texting, earphones, and even grooming. None of these provisions impede the use of C/ADSs and none of these provisions would create safety hazards if left in place. Nonetheless, it is likely, given the benefits of C/ADSs, that some of these provisions may need to be considered for modification as the fleet evolves into level 4–5 ADS- equipped vehicles. Indeed, at least in Nevada, most of these prohibitions are not applicable if the car is operating with the ADS properly engaged. Specifically, Nevada’s statute holds that “[f]or the purposes of this section, a person shall be deemed not to be operating a motor vehicle if the motor vehicle is driven autonomously through the use of artificial intelligence software and the autonomous operation of the motor vehicle is authorized by law.”100 We provide a multi-state sampling of these anti-distraction requirements, along with a consolidated recommendation at the end of this section. Use of Television Screens The UVC provides, in part, that, “(a) No motor vehicle operated on the highways . . . shall be equipped with television-type receiving equipment so located that the viewer or screen is visible from the driver’s seat [with listed exceptions for good reasons].”101 Virtually all of the states adopt similar provisions.102 Illustrative state statues are provided in Table A8 in Appendix 1. California has passed one of the most comprehensive sets of prohibitions on television-related distractions. The state bans a person from driving a vehicle if a “television receiver, a video monitor, or a television or video screen, or other similar means for visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating and is located in the motor vehicle at a point forward of the back of the driver’s seat or is operating and the monitor, screen, or display is visible to the driver while driving . . . .”103 It is possible that in some vehicles there will not be a “driver’s seat,” rendering the provision inapplicable; however, for C/ADSs that retain a drivers’ seat, the provision applies regardless of 99 UVC § 11-901. 100 Nevada Rev. Stat. § 484B.165(a). 101 UVC § 12-410 102 See, e.g., NY Veh & Traf § 375(24); SDCL § 32-15-9; UT § 41-6a-1641. See also NE Rev. Stat. § 60-6,287; NM Stat. § 66-7-358; PA. C.S.A. § 4527; WY Stat. § 31-5-961. 103 CA Veh. Code § 27602.

NCHRP 20-102(07) Interim Report 41 the role of the user seated there. California’s proposed deployment regulations released in March 2017 make no reference to television or video screen. Use of Handheld Devices The UVC does not prohibit texting while driving, which is perhaps not surprising since the last edition of the UVC was published in 2000 when texting was not a commonplace activity. However, other states have amended their codes to prohibit texting while driving, often with considerable specificity.104 An illustrative provision comes from Mississippi, where “[a]n operator of a moving motor vehicle is prohibited from writing, sending, or reading a text message and from accessing, reading or posting to a social networking site using a hand-held mobile telephone while driving said motor vehicle.”105 In New Mexico, “[a] person shall not read or view a text message or manually type on a handheld mobile communication device for any purpose while driving a motor vehicle. . . .”106 For other examples see illustrative state statutes in Table A9 in Appendix 1. Use of Cell Phones New York, along with several other states, prohibits a person from “operat[ing] a motor vehicle while using “any portable electronic device [which includes a] hand-held mobile telephone while such vehicle is in motion.” Other states ban the use of a wireless telephone unless it is in hands- free mode. Use of Earplugs Some states prohibit or regulate the use of earplugs while driving.107 The UVC, for example, provides that “[a] person shall not drive a vehicle with earplugs in both ears or while wearing a headset covering both ears.”108 New York similarly bans earplugs in both ears; more than “one earphone” is unlawful.109 Other Behavior that Distracts from the Road In Utah, a person operating a motor vehicle is guilty of careless driving if he or she “commits a moving traffic violation . . . while being distracted by one or more activities taking place within the vehicle that are not related to the operation of a motor vehicle, including: (i) searching for an item in the vehicle; or (ii) attending to personal hygiene or grooming.”110 104 See, e.g., SDCL § 32-26-47 (“no person may operate a motor vehicle . . . “); UT § 41-6a-1716 (“a person . . . while operating a motor vehicle . . .”). See also NM Stat. § 66-7-354; OH Rev. Code § 4511.204; PA. C.S.A. §§ 1621, 3316. 105 MS Ann. Code § 63-33-1(2). 106 NM Stat. Ann. §§ 66-7-374 & 375. 107 PA. C.S.A. §§ 1621, 3314; VA Code Ann. § 46.2-1078. 108 UVC § 12-415. 109 NY Veh & Traf § 375 (24-a). 110 UT § 41-6a-1715(1)(b).

NCHRP 20-102(07) Interim Report 42 Distractions or Obstructions from Third Parties The UVC and most, if not all, states generally prohibit a range of visual obstructions and passenger interference with the driver. The UVC provides that, “[n]o person shall drive a vehicle when it is so loaded, or when there are in the front seat such a number of persons, as to obstruct the view of the driver.”111 Other states have identical or very similar provisions.112 For example, in a number of states, the law reads, “[n]o person may drive a vehicle when it is so loaded, or when there are in the front seat such a number of persons, exceeding three, as to obstruct the view of the driver to the front or sides . . . or as to interfere with the driver’s control over the driving mechanism . . . .”113 South Dakota also places sanctions on a person who rides in ways that interfere with the drivers’ view.114 The UVC and at least a few other states also ban distractions from outside the car. In California, a person who “willfully interfere[s] with the driver of a vehicle or with the mechanism therefore in such a matter as to affect the driver’s control” is in violation of the state code.115 The UVC provides that “[n]o person shall place, maintain or display any stationary sign or light which blinds, dazzles or impairs the vision of drivers upon the highway.”116 Nebraska prohibits advertising devices that “[h]ave a light, the beam of which is concentrated on the highway or adversely affects the vision of operators of the vehicles.”117 Nebraska’s law seems primarily focused on driver confusion or even impaired vision, rather than just distraction, but it falls in the same type of third party prohibitions aimed at safe transportation.  Recommendation: States should consider modifications to these anti-distraction provisions. 4.2 Vehicles Vehicle Titling and Registration Vehicle titling and registration is another area that NHTSA has noted falls within the purview of state activities. While its model reserves the possibility of federal preemption when the vehicle is “the driver,” the areas of registration and titling remain states’ responsibility. 111 UVC § 11-1104 112 Florida § 316.1974; MS Ann. Code § 63-3-1203; VA Cod Ann. 46.2-855. See also CA Vehicle § 21700; NE Rev. Stat. § 60-6,179; OH Rev. Code § 4511.70; WY Stat. § 31-5-116. 113 NE Rev. Stat. § 60-6,179; NV Rev. Stat. § 484B.163; NM Statutes Ann. § 66-7-357; NY Veh. & Traf. Law § 1213; PA Consolidated Statutes Ann. § 3704; SD Consolidated L. § 32-26-43. 114 SD Consolidated L. § 32-26-44. 115 CA Veh. Code § 21701. 116 UVC § 15-115 117 NE Rev. St. § 60-6,128.

NCHRP 20-102(07) Interim Report 43 All states require that noncommercial motor vehicles are registered in the state and that a motor vehicle registered within the state cannot operate on a public highway until its owner applies for a vehicle title and registration.118 States require persons residing in the state to register their vehicles in that state within a short period of time, typically around 30 days, after establishing residence or purchasing the vehicle. Conversely, nonresidents are not required to register vehicles from other states. Currently, most states require an application to the designated department that includes mandatory multiple details related to the request. Some of these requirements include owner information, address, various information regarding the vehicle, any previous state the vehicle was titled in, vehicle purpose, lienholder information if applicable, and vehicle purposes.119 For the purposes of titling, other types of information is required by states to ensure that security interests are maintained, odometer disclosure laws are followed, and that the total life cycle of a the vehicle can be tracked from birth (the initial issuance of the manufacturer certificate of origin) to death (by either junk, salvage, or total loss).120 A cursory review of such requirements would not seem to call for any differentiation for level 4– 5 ADS-equipped vehicles. However, states may determine that details regarding the operational design environment and system may be requirements for registration. And, while this data may not be necessary, additional registration information will provide the state with data on the types of level 4–5 ADS-equipped vehicles on the road and their penetration rates, which can be used to determine when changes to drivers’ education and licenses may be necessary. This additional information will also be useful as law enforcement interacts with these vehicles, allowing them to direct enforcement at the appropriate party, be it the human user or the ADS. The first few states that have begun to regulate level 4–5 ADS-equipped vehicles have done so under two main operational environments: 1. Pilot testing (and now deployment) requiring registration of vehicles, user licensing, and insurance coverage. 2. Authorization to operate—both pilot testing and deployment—with minimal restrictions developed and nothing more than typical requirements for title and registration. California has the most prescriptively developed regulations for registration and titling of pilot testing (effective September 2014). The state has drafted deployment regulations (released December 2016, amended February 2017), and is continuing to assess and amend these provisions. 118 Texas Transportation Code at Title 7 Vehicles and Titles Chapter 501, Certificate of Title Act, Subchapter B Certificate of Title Requirements, require owner in state to apply for title and then cannot operate the vehicle without applying for title and registration. 119 For an example, Florida’s Form 82040 for application for certificate of title with/without registration details all the aforementioned categories. See https://www.flhsmv.gov/pdf/forms/82040.pdf 120 For example, South Dakota requires these under South Dakota Modified laws, Title 32 Motor Vehicles, Chapter 32-5 Annual Registration and License Plates.

NCHRP 20-102(07) Interim Report 44 Within California’s pilot testing regulations121, manufacturers cannot conduct tests without having applied to the DMV for a permit (§227.24). The manufacturer’s testing permit application or Form OL 311 (§227.26) for up to 10 “autonomous vehicles” and 20 “autonomous vehicle drivers” must be submitted on a newly created form. Additional cars and drivers can be added with additional pages and an additional fee. The manufacturer at §227.16 cannot operate any of these vehicles on public roads unless it has provided the DMV, in writing, the identification of the vehicle, including make, model and model year, VIN number, license plate, and state of issuance. Permits are issued for one year from the last day of the month of issuance (§227.30). California also requires that the application for original registration of these vehicles include a certificate of ownership (§227.48 [b] [1])122, a written description of the ADS technologies or features and functional capabilities, a brake and light adjustment certificate and emissions certification issued by the California Bureau of Automotive Repair (§227.48 [b] [2 and 3]).123 This subsection also provides instructions for an application to transfer ownership of these vehicles, although at §227.50 transfer of interest or title is forbidden except to another manufacturer holding a testing permit, to an auto dismantler as it is unrepairable, or to an education/research institution for public display. The vehicle must be identified on the face of the registration card and any certificate of ownership as well as on the program test vehicle permit (§227.48 9d). California’s 2017 proposed regulations for “deployment of autonomous vehicles” would add a new section within its express terms at Article 3.8 Deployment of Autonomous Vehicles and a new section 228. There are registration requirements that have been defined in these new proposed regulations that require that the registration card and certificate of ownership shall identify the vehicle as “autonomous” (Section 228.26 [a and b]).124 Nevada’s Regulation R084-11, adopted in 2012, authorizes the sale of “autonomous vehicles” and their registration. The regulation requires that before a vehicle can be offered for sale by a licensed vehicle dealer125, a certificate of compliance is required to be installed by the manufacturer or the ADS certification facility that is licensed under Section 19 of the regulation. There is no other provision drafted here that shows that licensing has any other major differential factors than traditionally registering and licensing a motor vehicle. Upon registering one of these vehicles, the DMV will issue license plates to the owner indicating that the vehicle is an “autonomous vehicle.” The department does not charge any additional fees to register these vehicles. Licensees can also apply for temporary license plates for each of these vehicles. Under Section 8, a person can apply for a license to test a vehicle’s ADS technology. Nevada Revised Statues at 121 Division 16.6 commencing with chapter 38750 CA Vehicle code 122 Note that it does not state that this is any different to current registration provisions. 123 Sections 1651 and 38750 Vehicle Code, Reference Section 43014 Health and Safety Code, Sections 672, 4150, 5902, 9255.1 and 38750 Vehicle Code. 124 CA Autonomous Vehicles Express Terms. March 10, 2017. Accessed at: https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461- f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 125 Nevada Regulation R084-11. February 6, 2012. Accessed at: http://www.leg.state.nv.us/register/2011Register/R084-11A.pdf

NCHRP 20-102(07) Interim Report 45 Section 485.185 requires a testing licensee to provide proof of insurance. The licensee is not required to register an ADS-equipped vehicle if it is purely used for testing.126 In contrast to California and Nevada, very few other states have such detailed provisions within statutes and regulations. For example, Florida, in titling an ADS-equipped vehicle, does not differentiate between testing and deployment. The vehicle is required to have a means inside the vehicle to visually indicate that the vehicle is operating with the ADS engaged127. In 2016, Florida authorized the purchase of temporary registration permits for driver-assisted truck platooning technology on trucks at designated ports of entry so they could operate within the state on DOT-determined routes and locations as part of a pilot process. The DOT and Department of Highway Safety and Motor Vehicles was also directed to conduct a study to develop a pilot project for truck platooning technology.128 Texas, in its recently passed June 2017 law SB 2205 (which has been signed by the governor and will be effective September 1, 2017 and so has not yet been encoded), authorizes the operation of “automated motor vehicles” without a user present in the vehicle, requires no specific registration of titling of such vehicle, and has not stipulated that the DMV promulgate any regulations or conduct any specific activities for testing or deployment. In essence, Texas has moved beyond testing and has created language intended for deployment. In addition to these various state developments that inform the types of added requirements and programs that might be useful for registration in the future, there will likely be a need for some form of external indicator that a vehicle is equipped with a driving automation system at level 2 or an ADS at level 3 or above. Ideally, the vehicle would also provide an external indication of whether the ADS is engaged at any given time. Enforcement officials will benefit from this added information, particularly when it is visible on the outside of the vehicle (e.g., on a license plate). Thus, both when registering and plating the vehicle, states should consider including external markers to assist enforcement officials in their oversight of vehicles.  Recommendation: In order to track C/ADSs and provide needed information to law enforcement, states may find it useful to include in title and registration documents, from the time of manufacture to the time of junk or salvage, that the vehicle is equipped with a level 3+ ADS. In addition, aftermarket technologies that may be applied should also be classified and the DMV notified consistent with current vehicle modification laws or regulations or through newly developed processes girded in law or regulations. 126 Nevada Regulation R084-11 Section 11 93) (a and b) 127 2016 Florida Statutes Title XXIII Motor Vehicles, Chapter 319 Title Certificates, Section 316.145 Autonomous Vehicles. Accessed at: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300- 0399/0319/Sections/0319.145.html 128 2016 Florida Statutes Title XXIII Motor Vehicles, Chapter 316.0896 Accessed at: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/0316.html

NCHRP 20-102(07) Interim Report 46 Vehicle Inspections and Vehicle Requirements A number of legislative requirements are imposed on the actual design of the vehicle, again with the intent of improving the safety of human-directed transportation. In some states these vehicular requirements can be quite specific and prescriptive. Moreover, in at least a few states, adhering to specific requirements (regarding the steering wheel, windshield, and other features) applies not only to the vehicle owner but to those who “manufacturer, sell, offer for sale, equip or operate a vehicle in [the] state.”129 Vehicle Requirements As a legislative matter, most states in our sample impose specific types of requirements on the physical features of vehicles. While most of these vehicle requirements are open-ended and do not appear to impede C/ADSs, some do appear to pose potential impediments in the future. Below, we spotlight vehicular requirements in state codes that may become outmoded or unduly prescriptive in limiting the types of C/ADSs allowed in the state. In contrast to the other sections of this report, it appears that virtually all of the vehicle requirements come due, if at all, only when all vehicles are at level 4 or above, or nearly so, and thus any required modifications are generally quite futuristic. Horns and Other Audible Warning Devices The UVC and states require horns on motor vehicles, again with some relatively detailed requirements.130 The UVC states that horns must be “capable of emitting sound audible under normal conditions from a distance of not less than 200 feet.”131 Concerns about driver distractions arise again, and the UVC and some states, while requiring horns, also prohibit particularly noisy horns. For example, “no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. . . [or] any siren . . . or bell.”132 Even in a transportation system operating at level 4 or above, pedestrians and cyclists will still benefit from horns, including those that are not so loud or high-pitched as to lead to panic. Thus, the need to modify these provisions may not be necessary, even in the long run. Steering Wheels At least a few states require “steering mechanisms” on vehicles as a matter of law. These steering mechanisms, moreover, must meet a series of requirements.133 In Ohio, for example, 129 NY Veh. & Traf. L § 375(e) (violations of vehicle requirements “by any manufacturer” “shall be punishable by a civil fine of not more than seven hundred fifty dollars for each offense). The UVC imposes similar prohibitions. For example, the UVC prohibits the “sale” of lights or equipment that “change the original design” “unless of a type which has been submitted to and approved by the commissioner.” UVC § 12-224. 130 CA Veh. § 27000. 131 UVC § 12-401. 132 Id. § 401(a) and (b). 133 See, e.g., N.Y. Veh. & Traf. § 375(a) (“steering mechanism” [must be] sufficient to control such vehicle at all times when the same is in use”); SD Consolidated L. § 32-15-28—29 (setting out the specific requirements

NCHRP 20-102(07) Interim Report 47 “[m]otor vehicles shall be inspected to determine if (a) Steering assembly operates normally. . . .”134 Vehicles operating at level 4 or above may not involve steering wheels, however, and thus state requirements—to the extent they apply to steering wheels in addition to steering assemblies—may need modification in the future. Mirrors In the UVC and some states, multiple mandatory mirrors are required on the vehicle.135 The UVC provides that “[e]very motor vehicle shall be equipped with a mirror mounted on the left side of the vehicle and so located as to reflect to the driver a view of the highway to the rear of the vehicle.” An additional mirror is also required at the center or right side.136 For vehicles operating at level 4 and above, these mirrors presumably will no longer be necessary, as they are required only for the protection of the driver and occupants and not for others on the road. C/ADS Brake Requirements Pedal brakes are also required by law in some states.137 Ohio imposes relatively prescriptive requirements: brakes must be inspected to ensure there is “sufficient brake pedal” and a sufficient “pedal reserve” (the amount of pedal left in reserve when the pedal is depressed).138 This type of prescriptive vehicular requirement is also a candidate for modification if some types of C/ADSs operate more safely without pedals.  Recommendation: As part of a detailed motor vehicle code audit, policy makers may want to consider identifying and modifying, soon-to-be obsolete requirements so that they use more applicable terms, such as referring to steering assemblies rather than wheels or braking systems rather than pedals. Lighting States also impose a variety of lighting requirements on vehicles, ranging from headlights, to signals, to warning lights.139 In a traffic environment where most, or all, vehicles area operating at level 4 or above (again quite futurist), some requirements, particularly the most rigid, may not governing steering wheels). The Texas Department of Public Safety’s criteria require the inspector to have the capability to turn any motor vehicle’s wheel to pass inspection (TX Department of Public Safety, Vehicle Inspection Chapter 4). 134 OH Admin. Code § 4501:2-1-05. 135 TX Transportation Code § 547.602; UT § 41-6a-1627. See also OH Rev. Code § 4513.23; VA Stat. § 46.2-1082; WY Stat § 31-5-954. 136 UVC § 12-403. 137 See, e.g., NE Rev. Statutes § 60-6,244. See also CA Veh. § 24603; WY Stat. § 31-5-950. 138 OH Admin. Code § 4501:2-1-08. 139 We removed a detailed analysis of these lighting requirements out of a concern that they are too inconsequential. A full analysis of the ways that existing lighting requirements may require modification is available on request from the primary authors.

NCHRP 20-102(07) Interim Report 48 be necessary or could be reconfigured more towards alerting pedestrians and cyclists rather than other motorists. Inspection Requirements Some states require safety inspections of vehicles and at least some states require these inspections to occur annually.140 The laws requiring safety inspections, however, provide only a general directive to the relevant state agency. The relevant agency must then establish more detailed rules governing the inspections. As such, then, existing legislation mandating inspections does not appear to impede or require changes to the existing legal text to accommodate C/ADSs (although wholly new requirements might be added). The regulations promulgated by state agencies to provide more detailed inspection requirements do add detail that in some cases may impede C/ADSs.141 Several states, for example, have specific requirements for steering wheels as part of their inspection rules142 Table A10 in Appendix 1 shows for example, Ohio’s requirement for political subdivisions that conduct motor vehicle inspections to inspect for standards for steering.143 Some states also impose brake pedal requirements that have the potential to impede certain types of C/ADSs.144 Other states require a visible accelerator pedal as part of their inspection requirements.145 Most of the implications of these regulatory requirements appear to arise only at level 4 or higher, which means that the modifications do not appear urgent. Nevertheless, updating state inspection requirements remains an important line item in the longer list of modifications that may lie ahead for states, including any requirements for training and testing of mechanics conducting these inspections. Beyond the impediments and outmoded provisions identified above is the potential for wholly new requirements that could be added to the existing inspection requirements. For example, the Uniform Law Commission (ULC) has suggested that C/ADSs should be inspected to ensure the vehicle includes a: 1. Device to disengage the ADS.146 2. Device to indicate whether the vehicle’s ADS is engaged.147 140 See, e.g., Cal Veh. Code § 2814; 75 PA Stat. Ann. § 4702; TX Transportation Code §§ 548.051 and 548.053. Note that vehicle inspections are also required for emissions, see, e.g., OH Admin. Code § 3745-26-12, and for modifications to vehicles to accommodate disabled parties. These inspections are not analyzed as part of this report since their requirements originated from outside the motor vehicle codes. 141 For an illustration of some more detailed inspection requirements promulgated by the states, see CA Admin Code § 3340.41 142 67 PA Admin Code § 175.80; Utah Admin Code § R714-162 143 OH Admin. Code § 3745-26-12 144 See, e.g., CA Administrative Code § 1215; 67 Pa Admin Code § 175.80 145 Nevada Admin Code § 445B.769. 146 ULC Subcommittee on Issues, Study Committee on State Regulation of Driverless Cars, “Revised Report of the Subcommittee on Issues: Exhibit A,” at 9, revised post Dec. 17, 2014, Accessed at: https://www.law.washington.edu/clinics/technology/reports/autonomousvehicle.pdf 147 Id. at 10

NCHRP 20-102(07) Interim Report 49 3. System to warn operator of failure.148 While these types of new and added requirements go beyond the scope of our audit, we include them in the recommendations to ensure they remain on the larger list of modifications and new additions considered in future tasks. Moreover, if ADSs are not notated on the titling and registration, it would seem prudent for state inspection providers to notify DMVs that these have been installed.  Recommendation: It is likely that some inspection legislation and accompanying regulations will need to be modified to accommodate C/ADSs’ new technological features, such as the absence of steering wheels and brake pedals. Inspection requirements may also need to be amended to include wholly new requirements, such as mechanisms for disengaging an ADS, to ensure the safety of C/ADSs on state roadways, and requirements for any aftermarket ADS technologies that may be applied to a vehicle. Vehicle Maintenance Although outside of this analysis’ scope of how existing provisions may require modifications, it is worth noting that new vehicle maintenance requirements, especially software update requirements, will likely be necessary, and could be mandated through statutes or regulations. It is also possible that NHTSA, under rules of preemption, may control the rules regarding regular maintenance software updates necessary to operate the vehicle and protect it from hacks. Thus, while no existing state laws or regulations were found that call for modification, policy makers may want to review what minimum levels of maintenance will be necessary to ensure the safe operation of level 4–5 ADS-equipped vehicles on public roads. This may also take into account any federal regulations developed by NHTSA under FMVSS, which could be incorporated into statutes and regulations by reference. Maintenance could be broken into three major areas: software, hardware (for example radar/lidar) and typical maintenance (as currently required). This direction should be closely aligned to inspection efforts in states that have standard in-place programs. Nevada, in its 2012 Regulations, requires that the certificate of compliance for a C/ADS certify that the owner’s manual prepared for the C/ADS describes any of its limitations and capabilities.149 However, nothing within the regulation dictates or provides any guidance on what regular maintenance an owner should conduct; there is no mention of any software update requirements that fall upon the owner of the vehicle. Section 18, which allows a person to apply for a license to operate an “automated technology certification facility,” also does not detail any instructions regarding maintenance using this terminology. Section 18 (2) merely requires that the applicant meet the requirements for issuance of a certificate of compliance detailed in Section 16. Section 16 states that before a C/ADS can be offered for sale, a certificate of compliance 148 Id. at 10. 149 Nevada Regs R084-11. Section 16 (3) accessible at: http://www.leg.state.nv.us/register/2011Register/R084- 11A.pdf

NCHRP 20-102(07) Interim Report 50 must be issued, but again provides no further guidance or instruction regarding vehicle maintenance. Clarification on where and when maintenance should be undertaken is a modification that states will need to consider as they develop new statues. California, in its March 2017 proposed testing and deployment regulations, also does not discuss maintenance of the vehicle or of software in a substantive way. Maintenance is also not discussed within the definitions section of the Express Terms document released by the California DMV.150 It cannot be concluded, however, that lack of wording regarding maintenance is an oversight on California’s part. This is because both sets of regulations require insurance, and in the case of California, a surety bond, certificate of self-insurance, and proof of financial responsibility. It is reasonable to assume a standard contract from an insurance provider would include provisions regarding maintenance. Aftermarket Modifications Vehicle Modifications Post-Market While there is a large federal presence in regulating the safety of C/ADSs’ design, a particularly important role that states will continue to play involves vehicle modifications. There is growing concern that consumers may be able to retrofit existing cars by adding on automated features or adjusting existing automated features, such as the hand-off settings. To the extent that either type of consumer modification becomes a reality, the need for greater state oversight or regulation may become important.151 Indeed, the ULC Subcommittee suggests that states may need legislation to address issues associated with consumer-imposed modifications to vehicles after- market. Vehicle manufacturers themselves may also be modifying vehicles— almost continuously, in fact—through software updates deployed electronically. States, through both liability laws and prescriptive requirements, may play an important role in overseeing these activities. Both types of modifications are considered in turn from the vantage point of existing state codes. Consumer Aftermarket Modifications of Automated Features Under both the UVC and some state laws, consumer modifications of vehicles are regulated. Most of these laws, however, seem to engage only at the inspection stage, if at all.152 This means 150 California DMV. Autonomous Vehicles Express Terms. March 10, 2017 accessible at: https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto 151 Note that several states have already legislated immunity for manufacturers in cases where a third party modifies an C/ADSs and those changes, rather than a defect initially present in the vehicle, cause harm. See, e.g., NV Rev. Stat. § 482.090; FL Stat. § 316.86(2); D.C. Code § 50-2353; MI Comp. Laws § 257.817. 152 Ohio’s regulations, for example, state that “[e]ach inspection of a motor vehicle assembled from component parts by a person other than the manufacturer as provided in section 4505.111 of the Revised Code shall include inspection for identification for all component parts used to build the particular vehicle.” Oh. Admin. Code § 4501-

NCHRP 20-102(07) Interim Report 51 that most aftermarket modifications remain largely unregulated.153 Several legal provisions that seem intended to regulate this type of modification activity are framed in ways that may fall short. For example, the UVC imposes requirements on owners of reconstructed vehicles, which are defined as vehicles that have been “materially altered from [their] original construction,” which could be read to refer only to physical changes to the vehicle’s structure.154 For reconstructed vehicles, moreover, the owners must present the vehicle to the state police for inspection.155 Yet there does not appear to be any investigation into the nature of the reconstruction other than ensuring the rebuilt vehicle “is in compliance with statutory equipment requirements.”156 There are also provisions in the UVC that require anyone rebuilding wrecked or dismantled vehicles to be officially licensed.157 Since the vehicles that are being adjusted with automated features are not necessarily “wrecked” or “dismantled,” however, these provisions do not seem on point. There are also some state regulations governing aftermarket modifications of vehicles, but these sets of rules seem to be concerned with more specific issues rather than general vehicle safety. For example, under the Clean Air Act and accompanying state regulations, aftermarket modifications of emissions control equipment on vehicles is restricted.158 These rules do not appear to provide parallel oversight of the modification or conversion of vehicles with respect to automated features or to safety. Similarly, some states like Ohio have promulgated elaborate regulations governing the secondary modification of vehicles to accommodate disabled users.159 Again, however, these rules do not apply to more general modifications that involve adding automated features to vehicles for consumers who are not disabled. Some states do utilize safety inspection programs for registered vehicles,160 and some states even allow for spot inspections. For example, California requires a driver to submit the vehicle to an inspection of the mechanical condition and equipment of the vehicle if requested to do so by California Highway Patrol.161 Moreover, at least the UVC provides retrospective authority for the DMV to rescind the registration of a vehicle “[w]hen the department determines that a registered vehicle is mechanically unfit or unsafe to be operated or moved upon the highways.”162 Under these authorities, state DMVs could perhaps promulgate anticipatory rules that presumptively revoke or deny registrations for vehicles whose automated features have been modified. 33-05(A). Whether conversions of conventional vehicles to C/ADSs meet this definition appears to be an additional legal question in the application of this provision to automated aftermarket modifications. 153 For one example of how extension this aftermarket modification activity might become, see https://medium.com/@comma_ai/our-road-to-self-driving-victory-603a9ed20204 154 UVC § 3.122(c). 155 UVC § 3-121. 156 UVC § 3-121(c). 157 UVC § 5-201. 158 See, e.g., 13 CA Code of Reg. § 2222; New Mexico Admin Code § 20.11.100; 6 N.Y. Code of Rules and Regulations § 218-7.2; 9 VA Admin. Code § 5-91-190. 159 OH Admin. Code § 3304-6-06. 160 See, e.g., OH Admin. Code § 4501:2-1-02. 161 See, e.g., CA Veh. Code § 2814. 162 UVC §§ 3-704 & 3-408 (similar grounds for refusing registration or certificate of title).

NCHRP 20-102(07) Interim Report 52 Moreover, several states do require registration of “autonomous vehicles.”163 This registration requirement could be interpreted to apply to aftermarket modifications as well if automated driving capabilities are modified or added to vehicles. Thus, in some states, owner-specific aftermarket modifications may be caught by more general C/ADS legislation. Other states, like Ohio, have passed relatively elaborate requirements governing aftermarket vehicle modification, but none of these legislative requirements are directed at originally manufactured C/ADS technology or software features, nor aftermarket modification of automated features.164 Aftermarket OEM Software Modifications The UVC and at least a few of our 15 reviewed states also make provisions for manufacturers of vehicle equipment to submit “proof of compliance with any standards adopted within regulations” after the first sale in the state.165 The UVC, for example, notes that the state department in charge of registering vehicles may request test data to ensure compliance. The same department may also issue a finding of noncompliance for equipment if it believes that the vehicle is not conforming to existing requirements,166 which include national standards and, if they do not exist, “to the greatest extent feasible with any other relevant standards issued or endorsed by recognized domestic standard-setting organizations.”167 There is a possible (although hardly decisive) argument that this “equipment” could include software modifications or updates deployed by the OEMs, although none of the states that we reviewed had yet to address this issue. The UVC defines this term "vehicle equipment" to include: 1. Any system, part or component as originally manufactured or sold; Any system, part or component manufactured or sold for replacement or improvement of a similar item, or as an accessory or addition to the vehicle; and 2. Any device, article or apparel manufactured or sold to safeguard vehicle or highway users from risks of vehicular accidents.168 Ultimately, if there is some regulatory oversight of OEM software updates (beyond common law liability pressures),169 then this raises additional legal issues potentially in need of review and possibly statute modifications. Obviously, there is neither the need nor the resources for every software modification to trigger oversight. As a result, states that do engage in oversight would need to identify the point at which review of the new equipment would be triggered, as well as what that oversight would consist of. Ultimately, this area may be regulated by NHTSA as well, making state oversight unnecessary. Depending on current state and possible federal oversight, policy makers may consider developing new programs or requirements and developing a flexible approach to allow for changes to keep up with the movement of technology. 163 NV Rev. Stat. § 482A.080. 164 See OH Admin. Code Ch. § 3304-6. 165 UVC § 12-106; see also PA Stat. § 4107; TX Transp. Code §§ 547.203 and 207; CA Veh. § 26104. 166 UVC § 12-107. 167 UVC § 12-103. 168 Ibid. 169 See, e.g., Walker Smith, supra note 43.

NCHRP 20-102(07) Interim Report 53  Recommendation: To the extent that aftermarket modification requirements currently exist in some states, their application to aftermarket conversions of conventional vehicles into C/ADSs remains unclear. Existing laws should be revised or clarified with respect to whether and how they are applied. In addition, aftermarket technologies should be classified and the DMV should be notified if they are installed on a vehicle via a process deemed appropriate by each state. 4.3 Motor Vehicle Liability A review of the state codes spotlights two separate areas where existing laws governing liability may require modification. The first arises from crashes and damage to vehicles. The second, considerably rarer issue, arises with respect to manufacturer responsibility for flaws in the design or manufacturer of vehicles. User and Owner Liability for Damages Civil liability for damages resulting from auto crashes is typically determined by state common (tort) law. However, some states have passed legislative liability schemes to allocate civil responsibility in specific types of crashes, typically those that involve the violation of a state law.170 These state legislative allocations of civil liability generally exonerate motor vehicle manufacturers from civil liability and instead place full blame on owners and operators of the vehicles.171 While these laws are policy choices, generally creating an irrefutable presumption that damage for an illegal operation was due to the operator and owner and not a vehicle malfunction, this presumption comes under more pressure in cases where the violation occurs while the vehicle is operating with the ADS engaged. Liability laws exempting manufacturers in these cases thus seem susceptible to public pressure for modifications in the future. We discuss several categories of state legal provisions that limit OEM civil liability in ways that may require modification. Civil Liability for Damage to Highway or Structures The UVC and several states hold the owner and operator of a motor vehicle jointly liable for “all damage” to highways or structures “as a result of any illegal [vehicle] operation.”172 If the damage was caused by a malfunction of the vehicle while driving with the ADS properly engaged, this legislation would seem to exonerate the OEM and other responsible parties from direct liability to the government. States may want to consider reviewing these statutes to determine expanded liability allocation based on policy. 170 See, e.g., NV Rev. Statutes § 482A.090. 171 Presumably, however, the owner or operator will likely file third party claims seeking indemnification when there is evidence that they contributed to the accident. 172 UVC § 14-114; MS Code Ann. § 63-5-53; WY Stat. § 31-12-103.

NCHRP 20-102(07) Interim Report 54 Liability for Crashes Some states impose liability exclusively on owners of vehicles involved in crashes, presumably even if it is the case that the C/ADS manufacturer or software designer is 100% at fault. In New York, for example, “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to persons or property resulting from negligence in the use or operation of such vehicle . . . .”173 While the provision could be read to apply only in cases where a human operator was negligent, the ambiguity of the legal term “operation” in the wake of automated transportation leaves open the possibility that the user is liable, even if the crash was caused by negligent vehicle design of a level 4–5 ADS-equipped vehicle operating with the ADS properly engaged. In this area, modifications should be considered based on state policy direction. Liability for Violations Owners of vehicles may be liable for violations committed by users in some situations, even presumably in cases when the violation was the result of an ADS malfunction. New York provides that some counties may impose “monetary liability on the owner of a vehicle for failure of an operator thereof to comply with traffic-control indications [e.g., photo violation-monitoring systems].”174 Again, if a violation occurred as a result of careless vehicle design and the vehicle’s ADS was properly engaged, the user still appears to bear primary liability under this statute.  Recommendation: In the arena of C/ADSs, some crashes, incidents and harms will be the result not of errors by the human user but flaws in the ADS, which was engaged when the crash occurred. Existing laws in some states place full legal responsibility for these damages and harms on the human user and effectively preclude the placement of liability on OEMs, suppliers, and technology manufacturers. Policy makers should consider whether it is more equitable to place primary responsibility on vehicle manufacturers and technology companies when a crash occurs while the car is operating with the ADS properly engaged, or at least include partial responsibility for manufacturers in these settings. Consumer Protection Laws In 1975, the Congress enacted the Magnuson-Moss Warranty Act to serve three major regulatory goals: establish a minimum standard for manufacturer warranties, provide consumers with greater information about warranties, and create remedies to ensure customers have a meaningful cause of action when warranties are breached.175 The Magnuson-Moss Act applies to all 173 NY Vehicle and Traffic Law § 388. 174 NY Vehicle and Traffic Law § 1111-b; see also id. at § 1111-c (imposing liability on the owners to comply with bus lane restrictions). 175 15 U.S.C. §§ 2301-2312.

NCHRP 20-102(07) Interim Report 55 consumer goods.176 As time passed, states recognized the need for greater consumer protection to mitigate the consequences of costly investments, such as defective motor vehicles.177 States enacted “lemon laws” to provide consumers with easier paths to recovery, such as refunds after multiple failed repair attempts and the creation of arbitration boards to hear grievances.178 Some states have also designed lemon laws to provide consumers with access to remedies and arbitration without formal legal representation.179 Connecticut was the first state to pass a lemon law in 1982.180 By 1994, all states had adopted some form of statutory consumer protection for vehicle purchases. South Dakota has a relatively elaborate set of laws governing manufacturer liability for “nonconforming uses;” this legal program appears to limit OEMs’ responsibility to repairing defects after a relatively short period of time. (A “nonconforming use” is defined as “any condition of a motor vehicle that is not in conformity with the terms of any express warranty and that significantly impairs the use, value, or safety of the motor vehicle and occurs or arises solely in the course of the ordinary use of the motor vehicle.”181). Specifically, under South Dakota Law, the consumer must give notification to the manufacturer of the nonconforming condition earlier than “twenty-four months following delivery to the vehicle or twenty-four thousand miles, whichever occurs first.” After that point, the manufacturer has no legal obligation to repair the condition.182 The state’s law appears to be intended, in part, to provide consumers with an automatic right to the repair of a new vehicle within a year after purchase (called the “lemon law rights period”). However, the potentially longer time that may be needed to discover latent defects in the programming and design of C/ADSs may not fit this short legal timeframe. This particular law may also come under public scrutiny if it turns out that it does not provide adequate time for consumers to discover inherent defects in ADSs. Furthermore, many state lemon laws may not provide adequate protection for the numerous electronic systems incorporated into level 3–5 ADS-equipped vehicles. Lemon laws were passed when vehicles were mostly mechanical and before the inclusion of electronic systems and components. As a result, despite broad statutory language which recognizes defects as “condition[s] which substantially impair the use, value, or safety of a motor vehicle,” some courts interpreting these lemon laws have adopted narrow constructions of their coverage.183 176 15 U.S.C. § 2301(1) (defining consumer product as “any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes.”) 177 Duane A. Daiker, Florida’s Motor Vehicle Warranty Enforcement Act: Lemon Aid for the Consumer, 45 Florida Law Review, 253, 254 (1993). 178 Id. at 256. 179 See e.g. “All About the Lemon Law Program,” available at http://ct.gov/dcp/cwp/view.asp?a=1646&Q=276154&PM=1 (stating, “The ‘Lemon Law’ Program is designed to be accessible to the lay person. Most consumers coming through the program do not use an attorney. . . .”) 180 CN Gen. Stat. § 42-179 (history of statute states regulation went into effect October 1, 1982). 181 SD CL § 32-6D-1(7). 182 Id. at §§ 6D-2 through 6D-6. 183 See La Bonte v. Ford Motor Co., LEXIS 4795 (OH App. October 7, 1999).

NCHRP 20-102(07) Interim Report 56 Certain purely electronic malfunctions, such as a check engine light, have not been held to impair use, value, or safety despite a dealer’s unsuccessful attempts to remedy them.184 Such narrow constructions of these consumer protection laws may present significant hurdles for level 3–5 ADS-equipped vehicles. As vehicles transition to ADS-controlled operation and driver input remains mandatory, strict interpretation of lemon laws may categorize ADSs as redundant and unnecessary to proper operation, safety, and value, effectively removing them from lemon law coverage. As a result, current lemon laws will likely need to be modified to address newer technological elements in order to adequately protect consumers.  Recommendation: Policy makers should consider the possible needed modifications to lemon laws. Lemon laws that were originally designed to protect consumers may not be sufficient to ensure adequate consumer protection from product defects with driving automation system/ADS technology underpinnings. For states that have adopted these laws, some modifications may be necessary to account for the fact that problems with the driving automation systems/ADSs may not be evident over the relatively short period during which manufacturers are legally held responsible for making repairs. 4.4 Rules of the Road All states have specific rules in place that are designed to ensure safety and protect drivers and pedestrians. The research team has identified key categories of rules of the road provisions that may be in need of modification once C/ADSs become a more established part of the transportation system. Before delving into the categories, however, it is important to spotlight one common feature of most of these rules of the road: they often target the “driver,” which could plausibly be read to exempt level 4–5 ADS-equipped vehicles. In the UVC and most states, as already discussed, a “driver,” is a “person” and a “person” is either a human or a corporation. Motor vehicle is defined separately.185 If the rules of the road apply only to “drivers” or “operators,” then cars not operated by humans may be technically exempt from these various rules of the road. Texas has addressed this challenge by holding that, with respect to the rules of the road, the vehicle is also a driver. Texas Transportation. Code § 545.002 states that “a reference to an operator includes a reference to the vehicle operated by the operator if the reference imposes a duty or provides a limitation on the movement or other operation of that vehicle.”186 (It is noteworthy that this amendment in Texas, was made in 1995, well before the advent of C/ADSs). Additionally, in Virginia, at least some rules of the road, like speed limits, apply not to “persons” or “drivers” but to the “operation of a motor vehicle.”187 184 Id. at 13-14. 185 UVC § 1-126. “Driver” is “Every person who drives or is in actual physical control of a vehicle.” 186 TX Transp. Code § 545.002. 187 VA Code Ann. § 46.2-878.2.

NCHRP 20-102(07) Interim Report 57 Other Category 1 states, for example California, still appear to employ the term “driver” in at least some of their rules of the road provisions.188 Nevada has issued an administrative rule stating that “the operation of an autonomous vehicle that is operated in autonomous mode shall be deemed the driver of the autonomous vehicle regardless of whether the person is physically present . . . .”189  Recommendation: Policy makers should identify, as a legal matter, how and whether the rules of the road apply to different levels of driving automation systems and make appropriate modifications to motor vehicle laws. When rules of the road apply to “drivers,” policy makers may need to clarify who that “driver” is to ensure that level 4–5 ADS-equipped vehicles are not exempted from rules of the road requirements or, as some states already have done, specifically state that level 4–5 ADS-equipped vehicles are not exempt from the rules of the road. Recognizing that, again, the definition of “driver” forms the basis of impacting violations and is the most foundational modification needed, the Research Team also examined various types of rules of the road as they might intersect with C/ADSs and may ultimately benefit from modification. Due Care Requirements Throughout the UVC and the state codes, users are regularly instructed that they must exercise “due care,” act “reasonably” and with “prudence” and avoid “carelessness” to comply with the rules of the road.190 Illustrative examples of state statues are provided in Table A11 in Appendix 1. For example, Nebraska simply requires that “[a]ny person who drives any motor vehicle in this state carelessly or without due caution so as to endanger a person or property shall be guilty of careless driving.”191 In California, the “driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.” This “reasonable and prudent” directive is unavoidably benchmarked against human judgment. It seems likely that C/ADS programmers can match and exceed good human judgment in most cases, but in other, more complex settings (e.g., “traveling upon any narrow or winding roadway, and when special hazards exist”) the ADS may not fully grasp the situation as a prudent human would.192 In some cases, human decision-making abilities, coupled with multi-sensory cues, assist in making this “reasonable” judgment required by law.193 Similarly, passing streetcars or 188 See, e.g., CA Veh. Code § 21750 (requiring the “driver of a vehicle” [person driving or in actual control] who is overtaking another vehicle to pass on the left). 189 See NV Admin Code § 482A-020(2). 190 UVC § 11-504. See, e.g., CA Veh. Code § 22107; FL § 316.1925; MS Statutes § 63-3-1213; NE Rev. Stat. § 60- 6109; OH Rev. Code § 4511.21; PA Consolidated States Ann. § 3714; SD Consol. L. 32-24-8; UT § 41-6a-601; VA Code Ann. § 46.2-861. See also CA Veh. §§ 21755, 21809, 21954, 22350; NV Stat. §§ 484B.600, 484B.603; OH Rev. Code § 4511.39; WY Stat. § 31-5-607. 191 NE Rev. Statutes § 60-6,212. 192 Id. 193 UVC § 11-304.

NCHRP 20-102(07) Interim Report 58 driving on street car tracks invoke some state requirements that the driver “proceed only upon exercising due caution for pedestrians” exiting and around the streetcar.194 C/ADSs raise still more challenges with regard to this human judgment requirement by presenting a possible bifurcated “reasonable person”—one who is human driving a non-C/ADS and the other driving, for example, a level 3 vehicle with the ADS engaged. What a reasonable human might do rounding a sharp curve may be different than what a reasonable human operating in a level 3 ADS-equipped vehicle would do given the dramatic differences in vehicle capacities. This fact only further underscores how these judgment-based provisions may complicate how compliance is assessed at different SAE J3016 levels of automation.  Recommendation: Policy makers should clarify how the “due care” standard applies when an ADS- equipped vehicle is operating at level 3 or above. Presumably there are “due care” considerations applied to the human driver with respect both to whether to engage the ADS and whether to override or disable the ADS in specific settings. Thus, while the “due care” term is not necessarily rendered obsolete, it becomes ambiguous enough to benefit from interim standards or guidelines providing direction on what “due care” is under various technological and operational scenarios. Rules of the Road That Involve Some Human Processing of Visual Cues A number of rules of the road impose requirements on drivers that reference visual or audible cues, but also involve human decision-making.195 As noted, C/ADSs may not always be able to replicate the capabilities of the human driver in more complex settings. Rather than predict the full capabilities of future technologies, we simply list out the various types of visual or audible signals that trigger this human decision-making process. We leave it to others to determine whether these requirements will ultimately present difficulties for various types of driving automation systems. Blind Persons In a number of states, the “driver of a vehicle shall yield the right of way to any blind pedestrian carrying a visible white cane or accompanied by a guide dog.”196 It is possible to imagine that sensors in canes or other apparatuses for blind persons would be detectable by C/ADSs, but one can also imagine a transition period during which some blind persons would not have sensors and driving automation systems could not distinguish blind persons from others. 194 UVC § 11-1401—1404. 195 These demands are placed not only on passenger and commercial vehicles but, at least in some states, also on emergency vehicle drivers. OH Rev. Code § 4511.041. 196 UVC § 11-511. See also MS Code Ann. § 63-3-1111; NV Stat. 484B.290; SD Stat. § 32-27-7; WY Stat. § 31-5- 611.

NCHRP 20-102(07) Interim Report 59 Children and Confused or Incapacitated Persons Some states direct drivers to “exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.”197 Aberrational human behavior may be best judged by another human; this type of detection of aberrations and irrationality may be difficult to program into an ADS. Horses and Livestock Some states require particular driver care in cases where animals are present on the roadway. 198 These provisions also refer to and would seem to require some human judgment.199 For example, California requires that the driver of any vehicle approaching any horse drawn vehicle, any ridden animal, or any livestock, shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary or as may be signaled or otherwise requested by any person driving, riding or in charge of the animal or livestock in order to avoid frightening and to safeguard the animal or livestock and to insure the safety of any person driving or riding the animal or in charge of the livestock.200 Bicycles California places similar due care requirements on drivers “overtaking and passing a bicycle.” Drivers must pass “at a safe distance that does not interfere with the safe operation of the overtaken bicycle, having due regard for the size and speed of the motor vehicle and the bicycle, traffic conditions, weather, visibility, and the surface and width of the highway.”201 Flaggers and Other Officials Involving Police, Emergency, or Road Construction In most, if not all, states, police officers and other personnel can override traffic signals and signs when necessary by controlling traffic with hand signals.202 The UVC provides a representative example: “No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer, firefighter, flagger at highway construction or maintenance site, or uniformed adult school crossing guard . . . .”203 In Michigan, a driver “who fails to stop when a school 197 NM Statute § 66-7-337. 198 In California, drivers are also required to yield the right of way to “any horseback rider who is crossing the highway at any designated equestrian crossing.” CA Veh. Code § 21805. And in New York, drivers are prohibited from “sound[ing] the horn when approaching or passing a horse on a public highway.” NY Veh. & Traffic § 1146- a(3). 199 See, e.g., NY Veh & Traff § 1146-a. 200 CA Veh. Code § 21759. 201 CA Veh. Code § 21760. 202 See, e.g., CA Vehicle § 21655.1 See also CA Veh. §§ 21100.3, 21718, 21756-21757, 2800, 2801, 2817; MS Code Ann. §§ 63-3-313, 63-3-901; NE Stat. § 60-6110; NM Stat. §§ 66-7-4, 66-7-9, 66-7-11; NV Stat. §§ 484B.100, 484B.300, 484B.580; NY Veh. & Traffic §§ 1102, 1110, 1602; OH Rev. Code § 921.331; PA C.S.A § 3111; VA Code Ann. §§ 46.2-103, 46.2-834; WY Stat. §§ 31-5-104, 31-5-402, 31-5-504. 203 UVC § 11-103(a).

NCHRP 20-102(07) Interim Report 60 crossing guard is in a school crossing and is holding a stop sign in an upright position visible to approaching vehicular traffic is guilty of a misdemeanor.”204 Moreover, at least in Ohio, a “traffic control device” is defined to include a “flagger” as well as fixed signs and devices.205 Funeral Processions At least one state in our sample has legislatively required that vehicles yield right-of-way to funeral processions that are marked with a specific flag on the vehicle.206 School Buses In the UVC (with analogous requirements in most if not all of the states), the “driver” of a vehicle encountering a stopped school bus shall “stop before reaching such school bus when there is in operation on that school bus the flashing red light.”207 Presumably driving automation systems can detect school buses, or can be equipped with sensors, but it seems possible that at least in the initial years of driving automation systems, there could be recognition challenges. Ice Cream Truck At least in California, ice cream trucks must be carefully marked with signs.208 But even in California, the signs are not standardized and thus seem capable of varying from truck to truck. It seems possible, then, that driving automation systems will not distinguish ice cream trucks from other types of similarly shaped vehicles and may not exercise the same level of human judgment in terms of remaining alert for children. Emergency or Other Authorized Vehicles Presumably, the lights and sounds of emergency vehicles, maintenance vehicles, and fire trucks are less difficult for driving automation systems to detect and react to compared to some of the aforementioned examples. State requirements for emergency vehicles tend to be expressed in terms of drivers’ sense of sight and sound rather than uniform lights and warnings. A representative example is drawn from New Mexico, which requires the “driver” to “yield the right of way” and pull over “[u]pon the immediate approach of an authorized emergency vehicle displaying flashing emergency lights or when the driver is giving audible signal by siren, exhaust whistle, or bell.” In California, persons are prohibited from traversing “an electronic beacon pattern, a flare pattern, cone pattern, or combination of electronic beacon, flare, or cone patterns provided for the regulation of traffic.” In South Dakota, highway equipment and personnel enjoy the right-of-way and must “display a flashing or revolving light to warn the travelling public.” 204 MI § 257.613d(1). 205 OH Rev. Code § 4511.01(QQ). 206 MI § 257.654. 207 UVC § 11-705; TX Transportation Code § 545.066. See also CA Veh. § 22454; CA Veh. § 22504; NM Stat. § 66-7-347; NV Stat. § 484B.353; OH Rev. Code § 4511.75; VA Stat. § 46.2-859; WY Stat. §31-5-507. 208 CA Veh. Code § 22456.

NCHRP 20-102(07) Interim Report 61 Other states impose somewhat similar nonspecific lights and/or sounds emanating from public vehicles as a requirement for other drivers on the road to yield the right-of-way or pull over. Hand Signals In a few states and under the UVC, a “turn signal” may be given “either by means of the hand and arm” or by signal lamps.209 (Some states, by contrast, have phased out hand signals or banned them entirely).210 Hand signals may present challenges for driving automation systems. Stop and Yield Without Markings Under the UVC, if there is no stop line or crosswalk at a stop sign, “every driver” “shall stop” “at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway.”211 The stopping point is based in part on the visibility of the driver and not some fixed, programmable feature. Crosswalks Without Traffic Signals or Where Signals Are Not Operable If there is no signal in place, the driver shall yield to “a pedestrian crossing the roadway . . . or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.”212 Other states somewhat similarly require drivers to yield the right-of-way to pedestrians “within or entering a crosswalk” when traffic-control signals are not in operation,213 or to treat the inoperable signal as if it were a stop sign.214 Some judgment of the pedestrian’s behavior seems useful to carry out these provisions. Moreover, it may be the case that driving automation systems cannot distinguish between an intersection where there is simply no signal versus one where the signal is inoperable. Perhaps the absence of a signal translates to a driving automation system as no signal, rather than as a malfunctioning signal. If so, there will be added detection problems in terms of complying with some of these requirements. 209 UVC § 11-605. TX Transportation Code §§ 545.066 & 106. See also NE Rev. Stat. §§ 60-6,162—60-6163; NV Stat. § 484B.420; OH Rev. Code § 4511.40; SD Stat. § 32-26-24. 210 See, e.g., NY Veh. And Traf. § 375(18). 211 UVC § 11-403; see also CA § 21950; NV Stat. § 484B.283. Somewhat similarly, in Utah, if there is no sign indicating the speed limit, the speed limit is determined by the type of area where the road is located. Driver’s Handbook at 12. If the road is located in a business or residential area the speed limit is 25 mph. Id. If the road is a rural interstate highway, the speed limit may be 65 mph, 75 mph, or 80 mph depending on what zone the road is located in. Id. It may be difficult for a non-human driver to determine what speed limit is appropriate in each of these circumstances. 212 UVC § 11-502. 213 WY Stat. § 31-5-602. 214 75 PA Con. State § 3112(c). See also CA Vehicle § 21800; VA Code Ann. § 46.2-833.

NCHRP 20-102(07) Interim Report 62 Passing a Streetcar The UVC requirements for passing streetcars direct the driver to operate based on the activities of the pedestrians. For example, one of the three sets of requirements in the UVC direct the driver “overtaking upon the right of any streetcar . . . about to stop . . . to stop . . . at least five feet to the rear of the nearest running board or door of such streetcar and thereupon remain standing until all passengers have boarded such car or upon slighting have reached a place of safety.”215 These types of requirements would seem to involve considerable human judgment and perception. Construction Zone Barricades Some state codes allow the use of barricades or “buttons”216 to direct traffic in construction zones. Indeed, in some states, persons who “drive around or through” these barricades can be guilty of a misdemeanor (an argument can be made this violation would apply even if the vehicle’s driving automation system was engaged at the time).217 The requirements for the design of these barricades remain unclear, however. Some (not all) states seem susceptible to considerable variation in their use of barricades and buttons that may make it difficult for driving automation system-equipped vehicles to make the proper decisions based on the barricades and buttons they detect. Safety Zones Several states prohibit drivers from driving “through or within a safety zone.”218 A safety zone is set aside for pedestrians in a roadway and is “protected or is so marked or indicated by adequate signs as to be plainly visible at all times.”219 Like barricades, it is not clear whether these safety zones will be consistently marked in ways that can be recognized by sensors in C/ADSs. Yielding Yielding is a very common requirement in the state codes that also seems to draw on human judgment as opposed to formulaic specifications.220 A Mississippi requirement is illustrative of the human judgment needed for proper yielding behavior. It requires the driver of a vehicle within an intersection to yield “to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”221 An Ohio requirement somewhat similarly requires that in the case of an obstruction that requires a person to move to the left of the center of the highway, the “person so doing shall yield the right of way 215 UVC § 11-1403. 216 NM Stat. § 66-7-322. 217 MS Code Ann § 63-3-321. 218 VA Code Ann. § 46.2-814; WY Stat. § 31-5-608. See also CA Veh. § 21367; Miss Code Ann. § 63-3-516; PA. C.S.A. § 3326; SD Stat § 32-27-10. 219 WY Stat. § 31-5-102(a)(xli) 220 See, e.g., CA Veh. §§ 21451, 21453, 21801, 21802, 21804; MS Code Ann. § 63-3-801; NE Rev. Stat. § 60-6146. 221 MS Code Ann. § 63-3-803.

NCHRP 20-102(07) Interim Report 63 to all vehicles traveling in the proper direction . . . within such distances as to constitute an immediate hazard.”222 In cases where the driver must yield to human cyclists or pedestrians, still more judgment may be useful or even necessary. In other words, if there are multi-variate cues needed to assess “immediate hazard,” programming these yielding judgments into a C/ADS is challenging. However, it is fundamental to successfully integrating C/ADS-equipped vehicles.  Recommendation: Existing rules of the road that are tethered to human judgment. Benchmarks may need to be modified or adjusted by policy makers to accommodate the sensory abilities of ADS-equipped vehicles operating at level 3 or above. Parking and Standing Prohibitions ADS-equipped vehicles at level 4 and above are often programmed to react to some hazards by pulling over and stopping; however, there are a variety of prohibitions against parking on highways.223 (Under the UVC, parking includes “the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading property or passengers.”)224 There is generally an exception for parking if a vehicle is “disabled in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the vehicle in such position.”225 When C/ADSs are not able to operate safely, they are presumably considered “disabled.” But, in this situation, a C/ADS may not fit the description of disabled if there is a licensed user onboard. (For example, the exceptions in Virginia are allowed only for the “case of an emergency, an accident, or a mechanical breakdown.”)226 Modifications or clarifications may ultimately be needed to broaden these exceptions, as well as the larger set of parking prohibitions. Visibility as a Trigger for Requirements Visibility Limits of the Driver Several provisions require drivers to change their driving patterns when visibility is reduced.227 For example, in Mississippi, trucks and buses “shall be required to reduce speed to forty-five miles per hour during inclement weather when visibility is bad.”228 Somewhat similarly, the UVC and a number of states require that when a driver in canyons or mountain highways 222 OH Rev. Code § 4511.25. 223 UVC §§ 11-1003 and 1004. See also CA Veh. § 22500; CA Veh. § 22505; CA Veh. § 22510; MS Code Ann. § 63-3-909; NE Rev. Stat. § 60-6164; NM Stat. § 66-7-349; NV Stat. 484B.440; OH Rev. Code § 4511.66; VA Code Ann. § 46.2-1071. 224 UVC § 1-165. 225 UVC § 11-1001. 226 VA Code Ann. § 46.2-888. 227 CA Veh. § 21751; Miss Code Ann. §§ 63-3-611, 63-3-703, 63-3-705, 63-3-1205; NE Rev. Stat. §§ 60-6136, 60- 6181; NM Stat. §§ 66-7-313, 66-7-323; NY Veh. & Traffic § 1215; OH Rev. Code § 4511.43; SD Stat. § 32-26-35; WY Stat. §§ 31-5-205, 31-5-215, 31-5-227. 228 MS Code Ann. § 63-3-505.

NCHRP 20-102(07) Interim Report 64 approaches curves “where the view is obstructed within a distance of 200 feet along the highway,” the driver “shall give audible warning with the horn.”229 In the UVC “[v]ehicles [note the driver is not the target here] should not be driven in the left (passing lane),” for example, when “approaching or upon the crest of a grade or a curve in the highway where the driver’s view is obstructed” or “when the view is obstructed upon approaching within 100 feet of any bridge viaduct or tunnel.”230 Nebraska and Nevada both prohibit the turning of a vehicle in the opposite direction upon any curve “where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred feet.”231 The UVC and some states also instruct the driver to stop and “while so stopped listen and look in both directions” at a railroad crossing that is marked only with a stop sign.232 In South Dakota “a clearly visible or audible signal” must be heeded by the driver to give “warning of the immediate approach of a train.”233 It is possible in some of these instances (e.g., sharp curves, trains) that C/ADSs will not face visibility challenges; thus, the trigger, “when visibility is bad” is difficult to apply or may even be inapplicable. In most mixed vehicle settings, however, human visibility issues will presumably continue to be a factor as will visibility triggers incorporated into legal requirements. Whether or how these visual requirements can be modified or adapted to provide useful legal guidance to C/ADSs for rules of the road would benefit from further research. Visible Features That C/ADSs May Not Sense Like the human judgment scenarios discussed previously, there are some prohibited actions that human drivers can readily see and avoid, but which C/ADS sensors might miss. For example, virtually every state prohibits a vehicle from being “driven over any unprotected hose of a fire department when laid down on any street . . . .”234 It is conceivable that most humans would notice the fire related activities and hence notice the hose. It may be difficult to program C/ADSs, however, to “see” a hose as distinct from sticks, snakes, or even slight bumps in the road. Yet given the public safety implications, vehicle sensors would need to be able to make these fine-grained detections to stay in compliance with the law. Similarly, in Ohio, a “person” is prohibited from “knowingly driv[ing] upon or over any freshly applied pavement marking material on the surface of a roadway while the marking material is in 229 UVC § 11-1107(b). For similar provisions, see CA Veh. Code § 21662; FL § 316.087; VA Code Ann. § 46.2- 854. 230 UVC § 11-307; see also FL § 316.087; MI § 257.639. 231 NE Rev. St. § 60-6,160; NV Rev. Statutes § 484B.407. 232 UVC § 11-1107(d); CA Veh. § 22451—22452; MS Code Ann. § 63-3-1007; NE Rev. Stat. § 60-6,170; NM Stat. § 66-7-343; NV Stat. § 484B.553; OH Rev. Code §§ 4511.62, 4511.64; WY Stat. § 31-5-510. 233 SD Consolidated L. § 32-29-4. 234 UVC § 11-1110; see also MS Code Ann. § 63-3-1209; NE Rev. Stat. § 60-6184; NM Stat. § 66-7-362; NY Veh. & Traffic § 1218; PA C.S.A § 3708; SD Stat. § 32-31-8; WY Stat. § 31-5-232.

NCHRP 20-102(07) Interim Report 65 an undried condition and is marked by flags . . . to protect it.”235 Again, an automated sensor may or may not be as able as a human to detect this feature. Legality of Signs That Hinge on Their Visibility to Drivers In general, signs and road markings are only mandated when they are in a place that is “clearly visible to an ordinarily observant person.” Although it may never occur, in a future transportation system that consists exclusively of level 4 and above ADS-equipped vehicles, these visible signs will no longer be necessary. Glancy et al. reach a similar conclusion: “Ultimately, vehicle regulations will adapt to the special qualities of driverless vehicles. For example, stop signs and stop lights at intersections may become not as useful as automated signals (beacons) [are] added to the infrastructure to better communicate with driverless vehicles.”  Recommendation: Visibility is a trigger for a number of rules of the road requirements. Although visibility is an issue that is likely to arise in the future, primarily when all vehicles operate at level 4 and above, policy makers ultimately may need to modify or clarify these visual cue requirements to accommodate the capabilities of C/ADSs consistent with maintaining current highway safety standards. This will not only provide more predictability for automated design and programming but will also facilitate enforcement efforts. Local Restrictions The UVC and some states provide explicit powers to local authorities to override the state laws in their MVCs.236 The UVC provides that “with respect to streets and highways under their jurisdiction” “local authorities” may, among dozens of items, “prohibit[] or regulat[e] the use of controlled-access roadways by any class or kind of traffic” and “prohibit[] or regulat[e] the use of heavily traveled streets by any class or kind of traffic found to be incompatible with the normal and safe movement of traffic.”237 Additionally, “with respect to highways under their jurisdiction, local authorities may . . . prohibit the operation of vehicles upon any highway or impose restrictions as to the weight of vehicles . . .”238 Illustrative state statutes that allow forms of local restrictions are provided in Table A12. As noted below for platoons, the sharing of powers and responsibilities between the states and localities with respect to C/ADSs may be a major impediment unto itself. Most of these challenges, however, lie beyond the MVCs. Given the importance and scope of this issue, we simply spotlight this type of provision, both for rules of the road and platoons. State-local 235 OH Rev. Code § 4511.17. If a level 4–5 ADS-equipped vehicle could not detect this feature, the user might be able to escape responsibility by arguing that they did not know that the pavement was wet; however, this may be a difficult argument. 236 See, e.g., NM Stat. Ann. § 66-7-322; WY Stat. § 31-5-109. See also CA Veh. § 21100; SD Stat § 32-26-20. 237 UVC § 15-102. 238 UVC § 14-113.

NCHRP 20-102(07) Interim Report 66 cooperation, authorized by the law, may need refining or modification in the future in some states.239  Recommendation: Local controls over roadways, both with regard to who can operate on them and the rules of the road are likely to require attention and the consideration of preemption statutes. If existing statutes that allow for local control need to be adjusted to accommodate C/ADSs, then state laws may need to be modified in ways that will involve significant policy choices. Alternatively, if new programs or directives are needed to ensure closer harmonization between states and localities, then this is an area for wholly new legislative or regulatory activity. 4.5 Occupant Safety Occupant safety is also a critical element. In all of the state codes in our analysis, the driver is legally responsible for ensuring that all occupants are safely buckled in. While presumably a C/ADS will be able to sense whether a person is in a seat and ensure that they are buckled in prior to engaging, state laws also require knowledge of the ages and sizes of younger occupants. C/ADSs may not be able to do this. Specifically, children of different ages and weights must be placed in specific types of seats or protective restraints. The UVC and numerous states require, in general, that “[f]or children younger than 4 years, regardless of weight, or weighing less than 40 pounds, regardless of age, a child passenger restraint system must be used. For children 4 years or older weighing 40 pounds or more but younger than 16, a properly adjusted safety belt may be used.”240 Other illustrative state statutes are provided in Table A13. Programming a self-driving vehicle to comply with these more specific requirements may prove difficult. Instead, the provisions may need to be modified to enable ADS-equipped vehicles at level 4 or above to ensure all passengers are safely seated in keeping with the law. Occupant weight alone, or some other feature that can be measured by sensors, may ultimately prove to be a better trigger to determine the type of seat belt or other safety device that must be used by each occupant before the vehicle engages. Indeed, this type of ADS is ultimately likely to be both more consistent and safer than the age-based restrictions. 239 Note that the following state laws have limited local control over C/ADSs to date: TN SB 598 (2015) (prohibits local government from banning the use of automated vehicles; NV AB 69 (2017) at § 5.6 (preempts local regulation of automated vehicles); TN SB 151 (2017) (same); TX SB 2205 (2017) (same). 240 UVC § 12-412. See also CA Vehicle §§ 15620, 40000.15; NM Stat. § 66-7-369; NV Stat § 484B.157; PA Consolidated Stat. Ann. § 4581; VA Stat. § 46.2-1095; WY Stat. § 31-5-1303.

NCHRP 20-102(07) Interim Report 67  Recommendation: Policy makers may need to consider whether occupant safety requirements need to be revised to take full advantage of C/ADSs’ sensory capabilities (e.g., sensing the weight of each passenger, but not the age; disengaging when belts are not in place so that the vehicle will not operate in conflict with safety requirements required by current laws). Currently, at least the child restraint laws may impose requirements that cannot be programmed (e.g., the age of a child). However, the same, or better, protections for occupants may be accomplished by alternative sensory-based requirements (e.g., the weight of each passenger). Legal responsibility of drivers for meeting occupant safety provisions at level 4 and above may also need to be assessed to determine contributory negligence provisions within revised tort laws. 4.6 Crash Reporting When a driver or operator is involved in a crash, the reporting of that crash and rendering aid are required of drivers in all or virtually all of the states.241 These provisions generally require the driver, when in a crash, to stop, render aid, report the situation, and provide information to others. The following UVC provisions offer a relatively representative example of this suite of requirements: • “The driver of any vehicle involved in an accident resulting in [injury to or death of any person/damage to a vehicle or other property]” must “immediately stop . . . remain at the scene.” and “give information” and “render reasonable assistance.” UVC §§ 10-102 through 10-104. • “The driver of any vehicle which collides with or is involved in an accident with any unattended vehicle or other property resulting in any damage shall immediately stop and either locate and notify the operator or owner of such vehicle or shall attach securely in a conspicuous place in or on such vehicle a written notice giving his or her name.” UVC § 10-105. • “The driver of a vehicle which has become disabled as a result of an accident shall give notice of accident to the nearest available office.” UVC § 10-106 • “The driver of a vehicle which is involved in an accident resulting in bodily injury . . . shall within 10 days after such accident forward a written report.” UVC § 10-107. As becomes clear from these provisions, some of these mandated tasks—for example rendering aid—would be difficult to program for level 4–5 ADS-equipped vehicles that are being controlled remotely. There are variations on these provisions in individual states. For example, the duty to render aid has been extended to animals in New York: “[a]ny person operating a motor vehicle which shall 241 See, e.g., NY Consolidated Law § 600, § 605; PA Consolidated Statues § 3743, § 3744; VA Code Ann. § 46.2- 894—896; see also infra note 51.

NCHRP 20-102(07) Interim Report 68 strike and injury any horse, dog, cat or animal classified as cattle shall stop and endeavor to locate the owner . . . .”242 Some states impose responsibilities on others in the car. In Virginia, “[i]f the driver fails to stop and make a reasonable search for the owner or custodian of an unattended vehicle . . . every person sixteen years of age or older in the vehicle with the driver at the time of the accident who has knowledge of the accident shall have a duty to ensure that the report is made within twenty-four hours . . .”243 Yet in all cases, the thrust of the provisions is focused on those in actual control of the vehicle (the “driver” or “operator”) and the requirements, particularly in accidents with persons or with unattended vehicles or property, require human initiative. In rendering aid, the operator must judge the condition of the injured persons in the accident and act accordingly. In situations where unattended property has been hit, the owner must make efforts to track down the owner and/or leave written notes on the property to enable the owner to make contact with them. These “report and render aid” provisions thus create two separate challenges for mode level 4–5 ADS-equipped vehicles.244 The first challenge is that compliance requires a human and at least some of the demands do not seem capable of being met by technology alone. Thus, in vehicles without an active operator or even able occupants, compliance with the requirements may be difficult if not impossible. The second (and a recurring) challenge is that the render aid requirements focus their mandates on the ambiguous terms “drivers” and “operators.” 245 As discussed in the 4.1 Driver and Operator Requirements section of this report, this leaves open the plausible argument that if a level 4–5 ADS-equipped vehicle operating without a human aboard causes a crash, it will be exempt from these provisions since there is no “driver” (person who is driving).  Recommendation: Policy makers need to consider modifications to “rendering aid” statutes and determine if and how these provisions would apply to level 4–5 ADS-equipped vehicles. 4.7 Platoons and Following Distance Truck platoons consist of two or more trucks that operate through connected technologies with short following distances. The concept of an automated truck platoon was not a consideration 242 NY Consolidated Laws § 601. 243 VA Code Ann. § 46.2-897. 244 See also Glancy et al., A Look at the Legal Environment for Driverless Vehicles, NCHRP Legal Digest 69, at 43 (2015) (raising similar concerns about these provisions). 245 Like the illustrative UVC provision excerpted above, the state codes generally reference the “driver” of the vehicle involved in the accident as triggering the duty. MS Code Ann. §§ 63-3-401, 403, 405, 407, 409 (same duty applied to fixtures), 411, 423; SDCL §§ 32-34-2, 3.1, 4, 6, 7; see also TX Transportation Code §§ 550.021—025 (references “operator” rather than “driver” but definition of operator is person in actual physical control for this particular requirement); UT § 41-6a-401 (same).

NCHRP 20-102(07) Interim Report 69 when most state MVCs were passed or substantially revised. As a result, there are issues unique to platoons that arise in the state codes that could be subject to modification or clarification.246 We first discuss the most immediate impediment to platooning: the legislative prescription of following distances between vehicles. We then turn to other issues that are less clearly in need of modification, although some clarifications may ultimately be useful. Note: We assume here that each individual truck is a commercial motor vehicle and the driver is a “commercial driver.” As such, the prior analysis concerning operator requirements, violations, vehicle requirements, and rules of the road apply to platoons as well, albeit in the analogous context of commercial vehicles. Readers are referred to the prior discussions for these more generic constraints that may also be placed on driving automation system-equipped truck platoons. Following Distance The default rule for highway traffic is that the driver of a vehicle traveling on public roadways must leave a safe “following distance” between the vehicle and a vehicle in front of it. These following distance requirements can be problematic for platoons, however, since platoons conserve energy by traveling safely in close proximity to reduce aerodynamic drag and/or improve throughput. Thus, while the following distance restriction was intended to advance safety, when applied to platoons, inflexible requirements could undermine platooning’s public benefits. There are four general approaches taken to following distances in the state codes in our 15-state sample. All states in our sample adopt the first approach (Approach #1; Table 4), and then all but one state in our sample adds a second, possibly a third requirement to that following distance, and in select cases a combination of select parts of or all of the first three requirements are utilized. These are laid out as Approach #2, #3, or #4, below (see Table 5, Table 6, Table 7, and Table 8). The result is a relatively specific, legislatively prescribed following distance for the vast majority of states in our analysis. Approach #1: Reasonable and Prudent All states begin with a type of due care or “reasonable and prudent” requirement for allowing an appropriate following distance.247 The UVC, for example, requires that “[t]he driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”248 All states in our sample adopt similar and often identical requirements.249 246 For a much more comprehensive of the intersection of platoons and the law, including state legal codes, with particular attention to the nature of state reforms passed specifically to enable truck platoons, see NCHRP Report, Challenges to connected vehicle and automated vehicle Applications in Truck Freight Operations at 34-40 (2016), available at http://www.trb.org/NCHRP/Blurbs/175965.aspx. 247 See Appendix 2. 248 UVC § 11-310(a). 249 See, e.g., CA Vehicle § 21703; OH Rev. Code Ann. § 4511.34; VA Code Ann. § 46.2-816.

NCHRP 20-102(07) Interim Report 70 Table 4. Illustrative State Codes Representing Different Following Distance Approaches – Type 1 Approach #1: Reasonable and Prudent Only MICHIGAN (recent amendments in bold and capital) See also VA Stat. § § 46.2- 816 Michigan § 643 of Senate Bill No 995. (1) The driver OPERATOR of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon it, and the condition of the highway. (2) EXCEPT AS PROVIDED IN SUBSECTION (4), A person shall not operate a motor vehicle with a gross weight, loaded or unloaded, in excess of 5,000 pounds outside the corporate limits of a city or village, within 500 feet of a like vehicle described in this subsection, moving in the same direction, except when overtaking and passing the vehicle. (3) EXCEPT AS PROVIDED IN SUBSECTION (4), A distance of not less than 500 feet shall be maintained between 2 or more driven vehicles being delivered from 1 place to another. (4) SUBSECTIONS (2) AND (3) DO NOT APPLY TO A VEHICLE IN A PLATOON. (5) A person who violates this section is responsible for a civil infraction. Approach #2: Occupy Requirement A second prong added to the “reasonable and prudent” approach in a number of states requires drivers to also allow a following distance sufficient to permit another vehicle to safely “enter and occupy” the open area between vehicles. The UVC, for example, requires that vehicles “leave sufficient space that an overtaking vehicle may enter and occupy such space without danger.”250 Nearly half of the states in our sample add this requirement to their following distance specifications.251 250 UVC § 11-310(b); TX Transp. Code § 545.062(c). 251 See Appendix 2; see also, CA Vehicle § 21704; NE Stat. § 60-6140; NM Stat. § 66-7-318; OH Rev. Code Ann. § 4511.34; SD Stat. §§ 32-26-41, 32-26-42; WY Stat. § 31-5-210.

NCHRP 20-102(07) Interim Report 71 Table 5. Illustrative State Codes Representing Different Following Distance Approaches – Type 2 Approach #2: Additional “Occupy” Requirement: WYOMING See also Nebraska Stat. § 60-6,140; N.Y. Stat. § 1129; PA Stat. § 3310; SD Stat. § 31-5- 210; TX Stat. § 545.062 Wyoming Statutes § 31-5-210. Following too closely. (a) The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway. (b) The driver of any vehicle when traveling upon a roadway outside of a business or residence district, and which is following another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy the space without danger. (c) Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade whether or not towing other vehicles shall be so operated as to allow sufficient space between each vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This provision shall not apply to funeral processions. Approach #3: Prescriptive Distances Several of the remaining states set specific following distances in place of the “enter and occupy” prong, while again keeping in place the “reasonable and prudent” requirement. These prescribed following distances generally range from 100 to 500 hundred feet. This distance is mandated as the requisite following distance between vehicles.252 (Note that one state sets a stopping distance of 2 seconds in lieu of this distance requirement).253 Table 6. Illustrative State Codes Representing Different Following Distance Approaches – Type 3 Approach #3: Additional prescriptive distances: MISSISSIPPI See also NM Stat. § 66-7- 318; CA §§ 21703 & 21704; Mississippi Statutes § 63-3-619 - Distances to be maintained between traveling vehicles (1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. (2) The driver of any motor truck or motor truck drawing another vehicle when traveling upon a roadway outside of a business or residence district shall not follow within three hundred feet of another motor truck or motor truck drawing another vehicle. The provisions of this subsection shall not be construed to prevent overtaking and passing nor shall the same apply upon any lane specially designated for use by motor trucks. 252 See, e.g., CA Vehicle § 21704; OH Rev. Code Ann. § 4511.34; cf. MS Code Ann. § 63-3-619 (requiring a 300- foot following distance between motor vehicles that are “drawing another vehicle”). 253 UT § 41-6a-711.

NCHRP 20-102(07) Interim Report 72 Approach #4: All Together Two states in our 15-state sample require all three prongs to be met simultaneously, although the distance requirements are limited only to a subset of specific conditions. In Nevada, for example, the mandated following distance is a combination of Approaches 1, 2, and 3 linked together: 1. The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. 2. The driver of any truck or combination of vehicles 80 inches or more in overall width, which is following a truck, or combination of vehicles 80 inches or more in overall width, shall, whenever conditions permit, leave a space of 500 feet so that an overtaking vehicle may enter and occupy such space without danger, but this shall not prevent a truck or combination of vehicles from overtaking and passing any vehicle or combination of vehicles. This subsection does not apply to any vehicle or combination of vehicles while moving on a highway on which there are two or more lanes available for traffic moving in the same direction. 3. Motor vehicles being driven upon any highway outside of a business district in a caravan or motorcade, whether or not towing other vehicles, shall be operated to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle or combination of vehicles to enter and occupy such space without danger.254 Table 7. Illustrative State Codes Representing Different Following Distance Approaches – Type 4 Approach # 4: All together: FLORIDA See also Nevada Stat. § 484B.127; Ohio Stat. § 4511.34 Florida Statutes § 316.0895 Following too closely. (1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the highway. (2) It is unlawful for the driver of any motor truck, motor truck drawing another vehicle, or vehicle towing another vehicle or trailer, when traveling upon a roadway outside of a business or residence district, to follow within 300 feet of another motor truck, motor truck drawing another vehicle, or vehicle towing another vehicle or trailer. The provisions of this subsection shall not be construed to prevent overtaking and passing nor shall the same apply upon any lane specially designated for use by motor trucks or other slow-moving vehicles. (3) Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade, whether or not towing other vehicles, shall be so operated as to allow sufficient space between each such vehicle or combination of vehicles as to enable any other vehicle to enter and occupy such space without danger. This provision shall not apply to funeral processions. 254 NV Rev. Stat. § 484B.127

NCHRP 20-102(07) Interim Report 73 Table 8. Illustrative State Codes Representing Different Following Distance Approaches – Type 4 Approach # 4: Alternative in place of prescriptive distance: Prescribed Time for Stopping: UTAH Utah Statutes § 41-6a-711. Following another vehicle – Safe distance – Exceptions. (1) The operator of a vehicle: (a) may not follow another vehicle more closely than is reasonable and prudent, having regard for the: (i) speed of the vehicles; (ii) traffic upon the highway; and (iii) condition of the highway; and (b) shall follow at a distance so that at least two seconds elapse before reaching the location of the vehicle directly in front of the operator's vehicle. (2) Subsection (1)(b) does not apply to funeral processions or to congested traffic conditions resulting in prevailing vehicle speeds of less than 35 miles per hour Assuming that these following distances would ordinarily apply to platooning, they could pose a barrier to platooning in some states, and may ultimately necessitate legislative modification.255 For example, any state that uses Approach #3 would probably need to modify its laws to allow for platooning, which it might do by creating an exemption to prescriptive minimum following distance requirements for vehicles in a “platoon,” subject to a definition of the term “platoon.”256 However, in states that currently apply Approach #1, the due care or “reasonable and prudent”- type standard that allows for safe distances between vehicles to vary based “the speed of such vehicles and the traffic upon and the condition of the highway” would arguably allow for safe distances to vary based on the C/ADS features that enable truck platooning. Several states using both approaches have already addressed following distance-related impediments to platooning legislatively, but in our sample, the vast majority of the states have not addressed this issue. On December 9, 2016, Michigan became the first state to enact legislation that explicitly authorizes deployment of “platoons” within the state, and several states followed suit thereafter, include Arkansas, Georgia, Nevada, South Carolina, Tennessee and Texas.257 255 For a 2016 Excel list of the text of all 50 state following distances prepared by Peloton, see https://utexas.box.com/s/u7u18xy27k2tk4755p92bpa6li0tt3oe 256 See MI 40(c) (defining “platoon”) and 643(4) (providing that 500-ft minimum following distance requirements “do not apply to a vehicle in a platoon”). 257 See AR Code §§ 27-51-305 and 27-51-1408, GA Code § 40-6-49, NV AB 69 (2017); SC Code § 56-5-1930, TN Code §§ 55-4-108, 55-8-101, 55-8-124(d) and 55-12-102(10), and TX Code § 545.062. Rather than authorize “platoons” specifically, the Texas legal modification clarifies that the state’s following distance requirements can be met by the driver with the assistance of a “connected braking system,” which is a foundational technology for truck platooning that governs following distance; the driver “may be assisted by the system to maintain an assured clear distance or sufficient space as required by this section. In this subsection, “connected braking system” means a system by which the braking of one vehicle is electronically coordinated with the braking system of a following vehicle.” § 545.062(d).

NCHRP 20-102(07) Interim Report 74  Recommendation: If platoons are to be encouraged on a state’s highways, modification of following distance requirements will likely to be necessary, particularly in states that impose prescriptive following distances. The Legal Classification of a Platoon It is our understanding that in state DMVs and DOTs, platoons are treated as groups of individual trucks, sometimes operating as a caravan.258 However, within the language of existing state codes, there are other terms that theoretically could be interpreted to cover platoons. To take one example, in the UVC and many of the state codes in our sample there is a repeated reference to a “combination of vehicles,” a term that is almost never defined. While there appears to be strong consensus that the term does not cover platoons,259 the law itself is somewhat ambiguous on this point.260 Indeed, because of this residual ambiguity, one state 258 Telephone communication with Geoff Johnson, External Affairs, Peloton Technology (5/25/2017). 259 From conversations with industry experts, the term “combination of vehicles” traditionally refers to a single vehicle that consists of multiple separate vehicle units, like a tractor-trailer combination, that are physically (not electronically) connected. Id. There is also some legal support for this definition as well. The UVC sometimes adds to the term “combination of vehicles” the additional feature that these vehicles are “coupled together,” which could be read to imply that the vehicles are physically attached to one another when considered a “combination of vehicles.” Yet it is possible that the opposite argument could also be made since the term “coupled together” is only used in some UVC sections – e.g., on length requirements – and not in others – e.g., weight requirements. See, e.g., UVC § 14-110. Nevada defines “combination of vehicles as “two or more vehicles coupled together.” NV Rev. Stat. § 484A.050. Thus, the aggregate limits it sets and enforces for a “combination of vehicles,” see, e.g., 484D.600, do not appear to apply to truck platoons where the vehicles are not “coupled together.” NV Rev. Stat. § 484A.050. Somewhat similarly, in South Dakota, only the rearmost “vehicle” in a “combination of vehicles” is required to have rear red tail lamps. SD Consolidated L. § 32-17-8. This again seems to suggest that the term “combination of vehicles” refers to multiple vehicle units that are physically attached, with only the very rear structure of the single moving vehicle requiring tail lights. 260 The UVC definition of “motor vehicle,” for example, is limited to “[e]very vehicle which is self-propelled,” UVC § 1-156, and thus the term “motor vehicle” is narrower than the term “vehicle”. “Vehicle” is then defined as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, . . . .” UVC § 1-215. But without a definition for “combination of vehicles” it is not clear where in the range of legal possibilities “vehicle” used in the term “combination of vehicles” falls (e.g., a device drawn on the highway versus a self-propelled vehicle). Federal law is not much help in distinguishing “vehicle” from “motor vehicle” either. Motor vehicle is defined in FMCSA as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power used on highways, except that such term does not include a vehicle, machine, tractor, trailer, semitrailer operated exclusively on a rail.” 49 CFR § 383.5. Moreover, while the federal definition in the FMCSA regulations does seem to refer to a physical linking together of vehicles to form a “combination of vehicles,” the definition is still somewhat unclear: Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle: 1) Has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; or 2) Has a gross vehicle weight rating of 26,001 or more pounds, or 3) Is designed to transport 16 or more passengers, including the driver; or 4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Materials Regulations. 49 C.F.R. § 382.107 (emphasis added).

NCHRP 20-102(07) Interim Report 75 (Michigan) clarified in 2016 legislation that a platoon is not considered a “combination of vehicles.”261 Given the possibility for confusion and the benefits of greater predictability for this new industry, we recommend that states provide a legal definition of truck platoon. A clearer definition of platoon will then help pave the way for other needed legal adjustments to the regulation of platoons, including changes to following distance requirements, length and weight restrictions, routing policies, and requirements governing operators.  Recommendation: The legal classification of platoon is generally not specified in state codes. Policy makers should consider providing guidance or amend laws to provide a clearer definition of the classification of truck platoons. Weight, Length, and Noise Restrictions Federal Law, the UVC and state codes place specific prohibitions on the length, weight, axle spacing and sometimes noise of individual trucks.262 These restrictions are based on engineering and transportation judgments about the lengths that will allow the safe operation of trucks on highways (e.g., lane changes and exit and egress) and the load burdens that roads and bridges can withstand. Since these limits were generally established without accounting for truck platooning, 263 platoons may call for engineers to consider any unique demands they could place on the roadways. DOTs may want to consider if platooning is appropriate for all roads or if limiting platooning to certain highways and road conditions may be necessary. In doing so, it is possible that states may need to consider the length, weight, and noise restrictions as applied to a collection of trucks operating as a platoon. Additionally, while federal law does impose mandatory length restrictions on an enumerated subset of “combination of vehicles,” each of which are physically connected. See, e.g., 49 U.S.C. § 31111(a) (listing a subset of types of “combination of vehicles” subject to length restrictions without defining the broader term); 23 C.F.R. § 658.13 (same), that same federal law stops short of providing a definition of the broader term “combination of vehicles.” It thus fails to foreclose the possibility that some unconventional “combination of vehicles” may include vehicles that are connected electronically rather than physically. 261 See MI § 643a(10). Seven other states have legislated clarifications to the legal requirements governing platoons, but have not addressed ambiguity regarding the definition of “combination of vehicles” are: Arkansas Law 797 (2017); Georgia H.B. 472 (2017); North Carolina H.B. 716 (2017); Nevada A.B. 69 (2017); South Carolina R. 101 (2017); Tennessee S.B. 676 (2017); Texas H.B. 1791 (2017). 262 The “Compilation of Existing State Truck Size and Weight Limit Laws” is compiled by annually by the US Department of Transportation. Their report is available here: https://ops.fhwa.dot.gov/freight/policy/rpt_congress/truck_sw_laws/index.htm 263 Indeed, if platoons were classified as a “combination of vehicles,” the length and weight restrictions discussed here would effectively bar most of their operations since they would exceed most limits.

NCHRP 20-102(07) Interim Report 76 Length In federal law, the UVC and all states, there are length requirements applied to commercial vehicles (including a “combination of vehicles”), and based on the analysis above, these requirements would appear to operate only with respect to individual units within a platoon as well.264 The existing state length restrictions are aimed at bridge load ratings and traffic safety; unduly long vehicles may impose bridge consumption fatigue processes that consume part of the bridges design life, present hazards in lane shifting, entrance and egress, and keeping the vehicle from swaying. These restrictions in some cases can be waived with special permits, 265 but without this waiver, states place a hard limit on vehicle length. Wyoming, for example, directs that “[n]o combination of vehicles shall consist of more than three (3) single vehicles. No single vehicle shall have an overall length in excess of sixty (60) feet.”266 South Dakota prohibits “any combination of vehicles consisting of more than two units” with limited exceptions.267 Nebraska allows a “combination of vehicles” up to “sixty-five feet, extreme overall dimensions, inclusive of front and rear bumpers and including load.”268 In the UVC, however, these requirements are limited to “a combination of vehicles coupled together.”269 For this set of vehicles, the vehicle may not exceed “an overall length in excess of 60 feet” with enumerated exceptions.270 Weight In virtually identical form, federal law, the UVC, and states place weight limits on commercial vehicles. These weight limits are based on engineering considerations; the structure and stability of highways and bridges necessitate limits on weight capacity. In 1987, federal law grandfathered in a maximum gross weight limit of 80,000 pounds on a group of two or more consecutive axles for commercial vehicles and axle weight at 20,000 pounds carried on any one axle, including enforcement tolerances, or with a tandem axle weight of 34,000 pounds, including enforcement tolerances for commercial trucks that utilize the interstate network.271 The Federal Bridge Formula was enacted by Congress in 1975 to protect bridges from excessive strain by restricting the weight of a vehicle based on its axle configuration (number of axles, and axle spacing). The federal bridge formula, Formula B, “was derived from assumptions about the extent to which legal vehicles should be allowed to cause stresses that exceed the stresses assumed in the bridge design”.272 HS-20 is the minimum design load recommended by the 264 See, e.g., CA Veh. Code § 35400 (length restrictions for a “vehicle used in a combination of vehicles”); CA Veh. Code § 35401-35402 (length restrictions for a “combination of vehicles coupled together”). See also CA Veh. Code § 35411; NM Stat. § 66-7-404; NV Stat. 484D.615; NY Veh. & Traf. § 385. 265 UVC § 14-112; NE § 60-6,292. 266 WY St. § 31-18-802(a)(iv)(A). 267 SD Consol. L. § 32-33-9. 268 Neb Stat. § 60-6.290(1)(b); see also NM Stat. Ann. § 66-7-404 (also placing limits of 65 feet on a combination of vehicles). 269 UVC § 14-105(a). 270 Id. 271 23 U.S.C. §127 (a) (1) and (2) 272 American Association of State Highway & Transportation Office, Report of the Subcommittee of Truck Size and Weight of the AASHTO Joint Committee on Domestic Freight Policy, AASHTO, 1995; and Transportation

NCHRP 20-102(07) Interim Report 77 American Association of State Highway and Transportation Officials (AASHTO) for bridges on interstate highways”.273 H-15 accommodates a lighter design load and is used for many non- Interstate highway bridges. Bridge Formula B essentially prevents exceeding design stresses in HS-20 bridges by no more than 5% and HS-15 bridges by no more than 30%.274 The UVC places gross weight limits of a “combination of vehicles” based on the number of axles.275 Other states impose similar and sometimes much more elaborate weight restrictions on commercial vehicles and combinations of vehicles.276 The weight restrictions, including the calculation of the federal and state bridge formulas in determining routes for permit authorization, may necessitate further analysis to facilitate the use of platoons. States will need to review if or how their system, and especially those routes and bridges that are load posted, could be accessed by a platoon of trucks that may place them in violation of the weight posting if spaced too closely. Another area that may need further review for platoons is the specialized hauling vehicle (SHV) fleet. Currently the Federal Highway Administration (FHWA) is requiring state DOTs277 to conduct analyses regarding the load rating of SHVs. The states must inventory their SHV fleet composition, and ensure that their process for rating their load posted bridges includes a rating for SHVs. This has been broken into two groups: (i) group 1 bridges with the shortest span not greater than 200 feet must be re-rated by December 31 2017; bridges not in this first group must be re-rated by December 31, 2022. State DOTs might consider it prudent to conduct further research into the number and types of industry segments utilizing SHVs that might choose to adopt platooning, and how this might impact the bridge rating analysis. In addition, local law enforcement may need new authorization for conducting commercial vehicle oversight, including levying any potential fines, as they conduct roadside weight checks for platoons. Noise At least one state in our sample, California, imposes noise restrictions on motor vehicles. The per-vehicle limits are based on the weight of the vehicle and the date of manufacture.278 Again, requirements such as these may need to be revisited for multiple trucks in a platoon. Research Board, Regulation of Weights, Lengths and Widths of Commercial Motor Vehicles, TRB Special Report 267, 2002. 273 Id 274 Id 275 UVC § 14-110. Unlike the length restrictions, however, “combination of vehicles” is not qualified by the term “coupled together at this particular section. 276 See, e.g., CA Veh. § 27207; NY Veh. & Traf. § 385; VA Code Ann. § 46.2-113; WY St. § 31-18-802(a)(v). 277 United States Department of Transportation: Federal Highway Administration. November 15, 2013. Memorandum: Action on Load Rating of Specialized Hauling Vehicles. Accessed at https://www.fhwa.dot.gov/bridge/loadrating/131115.cfm 278 See CA Veh. Code § 27204.

NCHRP 20-102(07) Interim Report 78  Recommendation: Since trucks in platoons operate independently but in relative close proximity, state regulators may need to consider the aggregate length, weight, and possible noise restrictions as they apply to a set of trucks operating as a platoon. Lane Restrictions Several states, either legislatively or otherwise,279 impose restrictions on the operation of trucks in the far left lanes, whether they be platoons or individual trucks.280 For example, Virginia requires that “[e]xcept where the posted speed limit is less than 65 miles per hour, no person shall drive any commercial motor vehicle . . . on the left-most lane of any interstate highway having more than two lanes in each direction.”281 Although it is our understanding that truck platooning can operate in accordance with lane restrictions, if lane choice becomes an issue for states or platoons, then some modifications may be needed. Service Requirements Some states impose service requirements on driving related to fatigue, service times, and minimal alcohol limits that supplement and sometimes go above and beyond the federal requirements adopted by the FMSCA.282 For example, Ohio prohibits a person from driving (or an owner from allowing a person to drive) a commercial motor vehicle “while the person's ability or alertness is so impaired by fatigue, illness, or other causes that it is unsafe for the person to drive such vehicle.”283 In Virginia, no person shall drive any motor vehicle on the highways . . . for more than thirteen hours in any period of twenty-four hours . . . .”284 While this 13 hour limit exceeds the federal limits for truck drivers, state limits apply for drivers operating wholly within state. If federal limits are ultimately adjusted for platoons, the Virginia state provision will still impose an independent limitation on driving times for wholly intra-state transport. 279 Under Texas rules of the road, trucks are generally not allowed in the passing lanes. This prohibition may thus need to be amended to allow for a third, restricted lane for platoons. Benning, Tom. More North Texas Highways Slated to Feature Ban on Trucks in Left Lane. June 3, 2013. The Dallas Morning News Transportation Blog Accessed at: http://transportationblog.dallasnews.com/2013/06/more-north-texas-highways-slated-to-feature-ban- on-trucks-in-the-left-lane.html/ on October 23, 2015. Restrictions imposed by certain localities (e.g., prohibiting towing trucks from driving in passing lanes) may also need to be amended. 280 See CA Veh. Code § 21655. 281 Furthermore, within the Eighth Planning District and on Interstate Route 81, no person shall drive any commercial motor vehicle . . . on the left-most lane of any interstate highway having more than two lanes in each direction, regardless of the posted speed limit.” VA Code Ann. § 46.2-803.1. 282 See 49 CFR Part 395. For state regulations that may exceed this federal baseline, see CA Veh. Code §§ 34501.2 & 34501.15. 283 OH Rev. Code Ann. § 4511.79. 284 VA Code Ann. § 46.2-812.

NCHRP 20-102(07) Interim Report 79 Local Controls That Override State Restrictions Some state codes provide local governments with authority to regulate traffic in their jurisdiction using the reasonable exercise of police power. The extent to which localities could impose added restrictions on truck platoons warrants added legal research. For example, in Nebraska, “[a]ny local authority” may “[r]egulate or prohibit processions or assemblages on highways.”285 Even if a platoon were authorized as a procession by Nebraska state law, that platoon might still encounter local impediments to cross-state transportation.  Recommendation: In addition to a vehicle code review, policy makers should audit their highway/transportation state laws and regulations to identify those that impede the benefits of platoons. Some areas possibly requiring modification include lane restrictions, service requirements, size and weight, and following distance, which has been addressed frequently with regard to driving automation systems. In addition, policy makers need to determine if local governments will have the ability to regulate platoons in ways that differ from the rest of the state. Another important consideration for policy makers is harmonization across local boundaries, state boundaries, and international boundaries so as to not impede commerce. 4.8 DOT Traffic Control and Design Element Modifications Each state DOT provides guidance on roadway design and traffic control devices. Modifications may also be necessary for these tasks. For a discussion of the types of modifications that may be necessary, see Appendix 4. 4.9 Cybersecurity/Data Recording and Sharing Privacy and Cybersecurity The examination of potential conflicts between state codes and C/ADSs becomes more open- ended in the area of privacy and legitimate policy concerns. As Glancy et al. note, “it is difficult to predict either specific DMV driverless vehicle recordkeeping requirements or the privacy protections for personal information associated with driverless vehicles.”286 A comprehensive analysis of the intersection between existing state laws and privacy protections would be a significant project. Fortunately, our narrower task of examining existing state laws that may need to be modified means we can consider a much smaller portion of privacy and law related issues. Yet even this limited task is complicated by the fact that laws impacting privacy in the area of C/ADSs are not only promulgated in the MVCs, but are dispersed throughout state 285 NE Rev. St. § 60-680. 286 Glancy et al., supra note 244, at 63.

NCHRP 20-102(07) Interim Report 80 legal systems and are impacted substantially by federal laws as well.287 We therefore attempt only to spotlight some issues that should be included in discussions about privacy and public policy concerns as they relate to various C/ADS technologies, and the intersection of privacy and state laws that may necessitate future legislative modification. Existing Protections for Private Data in State Motor Vehicle Codes State DMVs in all 50 states collect distinctive, individualized information on owners and operators.288 Numerous state laws protect a great deal of this personal information from public disclosure and in many cases, are more stringent than federal law.289 Model legislation provided by the American Association of Motor Vehicle Administrators (AAMVA)290 and federal law reinforce state efforts to protect personal information. The federal Driver Privacy Protection Act, for example, prohibits state DMVs from disclosing vehicle owners’ photos, names, addresses, telephone numbers, and medical or disability information without their permission, with limited exceptions.291 This presumably includes information about owners of C/ADSs, although this was drafted prior to their existence. Within existing state codes, then, it is not surprising to find a great deal of private information classified as “personal information” or otherwise classified confidential.292 States levy criminal sanctions against the breach of this confidentiality.293 Yet a great deal of owner and operator motor vehicle data is publicly accessible and could potentially be shared with third parties.294 (As discussed in this next section, this could lead to a “mosaic effect,” in which privacy can be compromised by cumulative information.) Unprotected, non-confidential motor vehicle information typically includes data on “vehicles, vehicle 287 See, e.g., FTC Report, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policy Makers (Mar. 2012), available at https://www.ftc.gov/reports/protecting-consumer-privacy- era-rapid-change-recommendations-businesses-policymakers 288 For a list of the information required in California, see CA Veh. § 1800. 289 See, e.g., Glancy et al., supra note 244 at 62-63 (2016) (observing the considerable state activity to protect privacy and remaining optimistic that it will continue to protect privacy in the future of C/ADSs). States are continuing to expand the list of protected information, including information that tracks a persons’ digital privacy. See, e.g., https://iapp.org/news/a/states-continue-to-expand-definition-of-personal-information/ 290 Model Legislation Concerning Disclosure of Personal Information Contained in Motor Vehicle Records, http://www.aamva.org/uploadedFiles/MainSite/Content/SolutionsBestPractices/BestPracticesModelLegislation(1)/ ModelLaw_DisclosurePersnlInfoInMVRecords.pdf 291 18 U.S.C. § 2721. 292 See, e.g., UVC § 2-315; CA Veh. Code § 1808.5 (records related to the physical or mental conditions of persons in motor vehicle database are confidential); id. § 1808.24 (information regarding motor vehicle liability insurance policy or surety bond is confidential); id. § 21362.5 (records made by an automated rail cross enforcement system shall be confidential); OH Stat. § 4501.15 (social security and credit card information is confidential); NV Statutes § 484E.070(6) (driver-prepared crash reports are confidential); NM Stat. Ann. § 66-7-508 (all records of approved accident investigation units shall be confidential) 293 See, e.g., Cal Veh. Code §§ 1808.45, 40000.61; NV Stat. § 483.800. 294 See, e.g., UVC § 2-309. The UVC also makes registration information, including names and addresses of registered owners, available upon request and conditioned on unspecified payment. See UVC § 3-420(b). At least one state has adopted this provision. See SC Stat. § 56-3-2470

NCHRP 20-102(07) Interim Report 81 ownership, vehicular accidents, driving violations or driver status.”295 The AAMVA’s Model Legislation, for example, expressly exempts from protected “personal information,” “other contents of a motor vehicle record, including information on vehicular accidents, driving or equipment-related violations, dispositions by any court or administrative body, and driver’s license or registration status.”296 Similarly, in California “all records of the department relating to the registration of vehicles, other information contained on an application for a driver’s license, abstracts of convictions, and abstracts of accident reports required to be sent to the department . . . except where the information is explicitly confidential . . . shall be open to the public inspection during office hours.”297 For further information on California along with other illustrative state statutes, see Table A20 in Appendix 1. Supplementing this body of public motor vehicle information is the inevitable gray area where some confidential information may be released as a result of ambiguous or overbroad exceptions to these privacy protections.298 New Sources of Private Information in Automated Transportation When viewed in isolation, the potential privacy risks from the existing motor vehicle system may seem low. However, a full analysis of privacy risks from C/ADSs must consider not only each type of personal information in isolation but also all publicly available information when combined. If existing publicly available personal information can be combined with new information that may be available from C/ADSs, the ability to link data together to identify and track individuals (the mosaic effect299) could pose significant and complex threats to privacy. In C/ADSs, there are two relatively new sources of potentially publicly available data that deserve attention. The first involves V2V and V2I communications.300 Roadway infrastructure 295 See, e.g., NM Stat. Ann. § 66-1-4.14 (exempting this information from the definition of “personal information” that will be protected from disclosure); see also NE Rev. Stat. § 60-2904(6) (providing similar exemptions) 296 AAMVA, supra, at § 3(h). For example, in Nevada, “[t]he written or electronic reports required to be forwarded by police officers and the information contained therein [in vehicle crashes] are not privileged or confidential.” NV Stat. § 484E.100(2); see also Cal Veh. Code § 1808.10. 297 CA Veh. Code § 1808(a). Note, however, that any residence address is confidential. CA Veh. Code § 1808.21(a); see also id. § 1810.7 (allowing the department to issue special permits for the access of the department’s electronic database “for the purpose of obtaining information for commercial use”); but see OH Rev. Code § 4501.272 (names and addresses of driver license applicants will be shared – with consent – to those organizations those applicants agree to support). 298 See, e.g., CA Veh. Code § 1808.23 (availability of confidential records to specific entities for specific uses); NV Rev. Stat 60-2907 (providing exceptions that include for use in connection with matters of motor vehicle or driver safety and theft); cf id. § 60-2910 (allowing for restricted resale of personal information); NM Stat. Ann. § 66-2-7.1 (same); OH Rev. Code § 4501.27 (list of exceptions to confidentiality); see also Emilio Longoria, A Snake in the Grass: An Analysis of the Data Privacy Issues That Could be Implicated by the Widespread Use of Connected Vehicles 29-30 (April 2017 draft; submitted for publication) (criticizing the motor vehicle safety exception as ambiguous and overbroad). 299 See, e.g., John Breeden II. Worried about Security? Beware the Mosaic Effect. Public Sector Media Group. (May 14, 2014), available at https://gcn.com/articles/2014/05/14/fose-mosaic-effect.aspx 300 There is considerable federal activity on this issue by NHTSA, but there are also limits to NHTSA’s authority – for example, with respect to preventing the third-party use of data. See, e.g., NHTSA, Privacy Impact Assessment, Notice of Proposed Rule Making (NPRM) on V2V (2016), available at https://icsw.nhtsa.gov/safercar/v2v/. NHTSA

NCHRP 20-102(07) Interim Report 82 may have the capability of transmitting, and possibly collecting, a great deal of data on the location and movement of vehicles.301 For this reason, in its 2016 Proposed Rule governing V2V communication, NHTSA proposed ways to protect consumer privacy in V2V systems. (Note: we assume that the privacy risks associated with data-sharing in V2V and V2I systems are identical; if this assumption is in error, then our analysis must be revisited). NHTSA states that in order to protect privacy, [a]s proposed, V2V messages will not contain information directly identifying a vehicle (as through VIN, license plate or registration information) or its driver or owner (as through name, address or driver’s license number), or data ‘linkable, as practical matter,’ or ‘reasonably linkable’ to an individual. . . . The Agency has concluded that excluding ‘reasonably linkable’ data elements from the Basic Safety Messages (BSM) will help protect consumer privacy appropriately and meaningfully while still providing V2V systems in vehicles with sufficient information to enable crash-avoidance safety applications.302 The other source of data is contained within devices built into the vehicles themselves. 303 These devices, referred to as “telematics,” have been in use and evolving for over a decade, and all data exchanged is based on customer opt-in and user agreements stipulating data usage. Some of these devices collect information on the vehicle’s occupants, including voice, text messages, entertainment preferences, and even fast food preferences.304 This information can then be acknowledges that residual privacy impacts stemming fromV2V system will never be zero due to the inherent complexity of the system and the diversity and number of the interacting components and entities. A look at the FHWA’s connected vehicle pilot deployment programs, shows multiple private sector partners who are involved in developing the concept of operations, roll out, analysis, and apps (see e.g. U.S. Department of Transportation [USDOT] ITS Joint Program Office Connected Vehicle Pilot Program, and the NYC pilot program overview at: https://www.its.dot.gov/pilots/pilots_nycdot.htm, the Connected Vehicle Applications site at https://www.its.dot.gov/pilots/cv_pilot_apps.htm). The USDOT within its V2X Vision and motivation is specifically encouraging third party use of data, as they want to stimulate private sector use of the spectrum in addition to the public sector safety use cases (see e.g. USDOT Smart City Challenge at https://www.transportation.gov/smartcity). These issues go well beyond the scope of this report, but readers should be aware that once the federal picture is added the protections are expected to be much more comprehensive, although apparently not complete, and on occasion may be working to achieve different goals. 301 See generally Dorothy Glancy, Privacy in Autonomous Vehicles, 52 Santa Clara Law Review, 1171 (2012), available at http://digitalcommons.law.scu.edu/lawreview/vol52/iss4/3/; Walker-Smith, supra note 43; Jack Boeglin, The Costs of Self-Driving Cars, 17 Yale J. of Law and Technology 171 (2015), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1112&context=yjolt; Woodyard, Chris and O’Donnell Jayne. Your Car Already Collects a Lot of Data about Your Driving and May Soon Collect Much More. USA Today, March 25, 2013, accessed at: http://www.usatoday.com/story/money/cars/2013/03/24/car-spying-edr- data-privacy/1991751/%20%20 on October 23, 2015; Markus, Frank. Your Car’s Contribution to the Big Data Cloud. Motor Trend. July 25, 2013, available at http://www.motortrend.com/news/your-cars-contribution-to-the-big- data-cloud-29837/; Glancy, supra note 244. 302 NHTSA, Notice of Proposed Rulemaking, Federal Motor Vehicle Safety Standards; V2V Communications 175- 76 (Dec. 13, 2016), available at https://www.federalregister.gov/documents/2017/01/12/2016-31059/federal-motor- vehicle-safety-standards-v2v-communications. 303 Lafrance, Adrianne. How Self Driving Cars Will Threaten Privacy. The Atlantic. March 21, 2016. available at http://www.theatlantic.com/technology/archive/2016/03/self-driving-cars-and-the-looming-privacy- apocalypse/474600/ 304 See, e.g., Ryan Dube, Do Everything in the Car Hand Free With Google Now, Make Use Of (Nov. 24, 2015), available at http://www.makeuseof.com/tag/do-everything-car-hands-free-google-now/

NCHRP 20-102(07) Interim Report 83 transferred in real-time to manufacturers, and possibly others, and has the potential to be obtained by anyone who gains access to the device. These risks do not appear different from other, similar technologies. However, they do occur in a different context and also contrast with the lower privacy risks associated with level 0 vehicles.305 While vehicles using V2I communications may receive Signal Phase and Timing (SPaT), intersection or road geometrics and other real-time operational information, they will also generate BSMs that may include vehicle trajectory, operational status, and warnings relative to operations along roadways. As noted above, NHTSA’s approach to BSMs, which is standardized to SAE J2735 and J2945, is fundamentally designed to protect privacy.306 Existing State Laws and Privacy Risks The private information collected by the current fleet of connected vehicles may not differ significantly from tomorrow’s C/ADSs. But, assuming that the future fleet of connected and C/ADSs will contain further privacy-sensitive information, their deployment presents several challenges to existing state laws.307 This section continues our investigation of the complex interaction among C/ADSs, privacy, and other social goals. We first focus on how state laws address the government’s use of this additional information, and then consider third party use. Both types of information use are examined from the perspective of existing state laws, particularly with respect to whether those laws may benefit from modification. Government Use of Connected Communications If the government can access usable data on vehicle locations via connected infrastructures, issues could arise about whether the use of this data may require a warrant in the law enforcement context.308 Supreme Court interpretations of the Fourth Amendment in criminal cases do not allow the use of GPS surveillance data in criminal proceedings without a warrant.309 Further legal questions arise with respect to the government’s use of third parties to indirectly obtain information about individuals.310 305 The research team is highly cognizant that connectivity is the critical issue here, and not specifically automation. For many years car owners have allowed data transfer to /from their vehicles (telematics). Today’s non-C/ADSs also pose some limited privacy risks. An automated, but not connected vehicle may not hold any more personally- sensitive data than today’s currently un-automated vehicle. 306 See SAE J2735 Dedicated Short Range Communications (DSRC) Message Set Dictionary. November, 19 2009 accessible at: http://standards.sae.org/j2735_200911/, and SAE J2945 Dedicated Short Range Communication (DSRC) Common Performance Requirements, (standard is a work in progress so is not dated) accessible at: http://standards.sae.org/wip/j2945/. On-Board System Requirements for V2V Safety Communications. March, 30, 2016. Accessible at: http://standards.sae.org/j2945/1_201603/ 307 See, e.g., Max Glaskin, Safe and Secure, Vision Zero International, June 2014, at 40 (reporting that “[a] new car may have more than 145 actuators and 75 sensors, which produce more than 25 GB of data per hour”), available at http://viewer.zmags.com/publication/32ccd0e8#/32ccd0e8/42 308 Glancy et al., supra note 244, 44-45 (2016). 309 United States v. Jones, 132 S.Ct. 945 (2012). 310 See Dorothy Glancy, Privacy in Autonomous Vehicles, Santa Clara Law Review, 52, 1171, 1204 (2012); see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009), available at http://repository.law.umich.edu/mlr/vol107/iss4/1/

NCHRP 20-102(07) Interim Report 84 Current state laws in our dataset did not appear to impose meaningful legislative restrictions on the government collection or use of data extracted from communications networks. In some states, license plate or other personal data recorded on toll roads may not be collected or shared except for very limited official purposes.311 Still, such laws seem limited in number and scope and it may be prudent for state agencies to begin reviewing these areas. By contrast, government access to information stored in onboard devices, including, but not limited to, event data recorders (EDRs), would be subject to existing, much more well- established legal prohibitions under the Fourth Amendment. The fact that data must be physically accessed also imposes a rather obvious impediment to the government’s access and use of the information. Third Party Access to Private Information Information Collected Within and by the Vehicle C/ADSs will collect considerable private information about owners and operators. OEMs, and perhaps others with contractual rights, will have access to this information via the telematics system. Although these privacy risks are not new, they have come under public scrutiny in more recent years. A telematics services subscription agreement with Tesla, for example, reserves the right to obtain information about the vehicle and its operation, crashes, and about the user’s interaction with the vehicle and its services.312 These diagnostic devices may be in constant communication with OEMs.313 Since this is all done via an opt-in user agreement, there are no privacy concerns for state agencies (except for hacking, which is out of scope of this research project). Further, if C/ADSs’ privacy-relevant data is more extensive than level 0 vehicles’ data, C/ADS OEMs will necessarily have access to more consumer information.314 The access that OEMs and others have to private information will generally be established by private contracts (drafted by OEMs).315 In the absence of state or federal restrictions, these 311 Texas Transportation Code §§ 371.001 & 371.051. See also CA Veh. Code § 40273 (imposing restrictions on toll data as well). 312 Walker-Smith, supra note 39. 313 See id. 314 However, whether C/ADSs collect more data on the owner and operator than conventional vehicles, see supra note 307 and accompany text, is yet another assumption that might be contested. Since this report is focused on locating false positives, we assume that C/ADSs are different and involve more data than conventional vehicles. If this proves false, our analysis will need to be revised. 315 The limitations of contracts in complex consumer markets is outside the scope of this study, but is receiving considerable attention from legal reformers and will likely become relevant to OEM contracts governing the sale of C/ADSs as well. See, e.g., Oren Bar-Gill, Seduction by Contract: Law, Economics, and Psychology in Consumer Markets (2013); Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2014); Ian Ayres & Alan Schwarz, The No-Reading Problem in Consumer Contract Law, Stanford L. Rev., 66, 545, 554 (2014), available at https://www.stanfordlawreview.org/print/article/the-no-reading-problem-in-consumer-contract- law/. However, it is important to note that OEMs did agree to Privacy Principles in 2014 that were based on internationally accepted FIPPs (Fair Information Practice Principles) (11/13/2014) “The Principles’ fundamentals are based on the Federal Trade Commission’s (FTC) Fair Information Practice Principles (FIPPs), which, in turn,

NCHRP 20-102(07) Interim Report 85 contracts will generally be enforceable.316 Thus, under existing state law, OEMs, software companies, or others with contractual arrangements with consumers may use the information obtained through these devices for purposes of product development, advertising, or pricing and sales.317 However, state data breach statutes, which have been passed in 48 states, will limit the ability of OEMs to share this contractually agreed upon private data with third parties.318 These statutes generally require owner consent before personal information can be shared, and when privacy is breached, the owner is required by law to be notified. As a result of the deterrent effects of data breach statutes, OEMs have a strong motivation to protect their brand and other business interests by protecting customer data appropriately. There is nevertheless some risk that third parties (e.g., repair shops and other service providers) might gain direct access to this internally-stored information. One set of laws does protect some of this information, although it applies to a device that can also be found in more recent non- ADS-equipped vehicles and may not be specifically relevant to C/ADSs. A federal law, the Driver Privacy Act passed in 2015,319 and a number of state laws provide vehicle owners with privacy protections for data recorded in EDRs.320 EDRs enable the vehicles to collect various data, typically related to crashes (e.g., the speed of the vehicle at the time of a collision) and thus provide a valuable source of information about events leading up to a crash. In these state statutes, third parties are foreclosed from accessing this information with only a few exceptions.321 rest on privacy practice frameworks used in the United States and around the world for over forty years. Consistent with the FIPPs approach, the Principles treat sensitive information, such as geolocation, driver behavior, and biometric information, with additional, heightened protections. Global Automakers met with the FTC during the development process of the Principles and the agency is supportive of the industry efforts.” See, e.g., https://www.globalautomakers.org/media/press-release/automakers-commit-to-privacy-principles-to-protect- vehicle-personal-data; see also https://autoalliance.org/connected-cars/automotive-privacy-2/ 316 Again, while it is beyond the scope of this state-focused analysis, at least California has proposed regulations to oversee some of these manufacturer-based uses of private data. See, e.g., CA Proposed Rule § 228.24. 317 See, e.g., TX §§ 521.051-.053 (in 521.051(a) consent appears to be required only when the sensitive information is used to acquire goods in the person’s name. In fact, insurance companies are currently recruiting volunteer policy- holders to use devices to track their habits, thereby reducing their premiums. See, e.g., Dorothy Glancy, Sharing the Road: Smart Transportation Infrastructure, Fordham Urb. L.J., 41, 1617 (2014), available at http://ir.lawnet.fordham.edu/ulj/vol41/iss5/5/; Leslie Scism, State Farm is there: As You Drive. The Wall Street Journal: Markets. August 4, 2013, accessed at http://www.wsj.com/articles/SB10001424127887323420604578647950497541958. 318 See, e.g., NCSL, Security Breach Notification Laws (4/12/207), available at http://www.ncsl.org/research/telecommunications-and-information-technology/security-breach-notification- laws.aspx 319 FAST Act, Public Law 114–94, at §§ 24301-02 (enacted 2015). 320 http://www.ncsl.org/research/telecommunications-and-information-technology/privacy-of-data-from-event-data- recorders.aspx . Again, we assume for the purposes of trouble-shooting that C/ADSs will collect more data on consumers than conventional vehicles. 321 See, e.g., NV Stat § 484D.485; TX Stat. Ann. § 547.615(c); VA Code Ann. § 46.2-1088.6

NCHRP 20-102(07) Interim Report 86 However, EDR legislation is focused on only one specific type of device and does not apply to other data collection devices that may be found specifically on C/ADSs.322 In the Utah EDR statue, for example, “event data recorder” is defined as “a device or function in a vehicle that records the vehicle's dynamic time-series data during the time period just prior to a crash event (e.g., vehicle speed vs. time) or during a crash event (e.g., delta-V vs. time), intended for retrieval after the crash event.”323 Thus, while statutes aimed at the EDR may be effective for that single device in a C/ADS, they may not apply to other devices that contain equal amounts of, if not more, private data. These privacy risks may be even greater in states that affirmatively require repair shops to maintain records of repairs to vehicles involved in crashes.324 A review of EDR statutes would thus also be beneficial to determine if they can or should be modified to address other vehicle devices, or whether separate legislation may be needed. Information Available Through Connected Communications Systems As discussed, NHTSA’s proposed rule attempts to address privacy risks arising from V2V by ensuring that individuals cannot be identified. This rule should provide substantial privacy protections in concert with existing state statutes, such as data breach laws. Although it seems unlikely that other non-SAE defined data will ultimately be collected or available on state- provided V2I networks,325 if V2I did somehow involve the collection and storage of new data, then this data might be accessible through state open records acts.326 The public release of this information could be benign, but also might lead to the aforementioned mosaic effect, which could become problematic with respect to consumer privacy. When combined with other sources of public information already available in some states (e.g., registration lists that include the 322 See, e.g., Longoria, supra note 298, at 32-33. 323 See id. § 41-1a-1502 (internally referencing to 49 C.F.R. § 563.5 for definition of “event data recorder.”); see also Mont. Code § 61-12-1001 (defining EDR the same way); see also Ore. Rev. Stat. § 105.925 (defining EDR the same way). Other states adopt more open-ended definitions, yet these may also not reach all devices containing personal information within a C/ADS. For example, Nevada and other states define an event recorder as: a device which is installed by the manufacturer of a motor vehicle and which, for the purposes of retrieving data after a crash involving the motor vehicle: (1) Records the direction and rate of speed at which the motor vehicle travels; (2) Records a history of where the motor vehicle travels; (3) Records steering performance; (4) Records brake performance, including, without limitation, whether the brakes were applied before a crash; (5) Records the status of the driver's safety belt; or (6) If a crash involving the motor vehicle occurs, is able to transmit information concerning the crash to a central communications system. NV Stat § 484D.485; see also VA Code Ann. § 46.2-1088.6 324 See, e.g., NV Stat. § 484E.100. 325 If the federal government has also not preemptively noted that they control the entire area of this law i.e. states can add no more than what the federal government prescribes is to be collected through a V2I system, it is possible to envisage that a State legislature may give their State transportation and enforcement agencies the authority to collect further data for analysis and planning. As this is collected by a state agency, it is subject to open records requests. Without delving into the case law analysis to determine if any preemption has attached, it would seem wise for the DMV, DOT and law enforcement agencies and state legislatures to begin setting in place exceptions within their open records requests statutes for data that could identify an individual. 326 The Driver Privacy Protection Act, for example, prohibits state motor vehicle offices from disclosing photos, name, address, telephone number, and medical or disability information, with narrow exceptions. See 18 U.S.C. § 2721.

NCHRP 20-102(07) Interim Report 87 names of owners327), threats to privacy could be amplified in ways that are currently difficult to predict.  Recommendation: NHTSA and other federal regulators are deeply engaged in privacy and cybersecurity issues related to connected vehicles, which may also be automated. State policy makers could choose either to take a leadership role in this area, or could await federal recommendations or resolutions before taking action. Regardless of the direction taken, there are at least two current legal issues that may benefit from state attention. First and foremost, state policy makers should ensure that any privacy-sensitive data collected from vehicles through connected infrastructure or otherwise is not publicly accessible—for example through open records statutes—in ways that could compromise the privacy of individual drivers (e.g., by being linked to specific cars). Second, states should consider whether this same data could be used by state enforcement officials in ways that compromise Fourth Amendment protections against unconstitutional search and seizures. Beyond these two areas of legal activity, new programs may ultimately be needed for specific protections—analogous to data protection in EDR laws—against data capture and privacy violations for other types of equipment in and associated with C/ADSs. Cybersecurity There is little intersection between existing state laws and the regulation of cybersecurity risks in C/ADSs. As Glancy et al. observe “[o]f the many unknowns about laws that will apply to driverless vehicles, security laws are among the most obscure.”328 Given the absence of relevant state provisions, the challenges posed by cybersecurity fall outside the scope of this project. Indeed, given the urgency and generic risks of security breaches, 329 virtually all legal activity is likely to occur on the federal level.330 Two activities related to the specifications for design, implementation, and testing of security- related V2I interfaces are as follows: • FHWA’s Connected Vehicle to Infrastructure Cybersecurity study included a threat analysis of the V2I environment, long term identification of critical systems and processes, and culminated in an identification of security controls for devices participating in the V2I environment. 327 See supra note 218. 328 Glancy et al, supra note 244, at 67 (2016). 329 See, e.g., 7/21/2015, https://www.wired.com/2015/07/hackers-remotely-kill-jeep-highway/ 330 There are important federal developments regarding the cyber-security of C/ADSs that, even though not complete, signal a national interest in addressing at least some of these challenges. NHTSA and DOTs, along with industry, are focused on addressing the security risks associated with C/ADSs. See, e.g., William Kohler & Alex Colbert-Taylor, Current Law and Potential Legal Issues Pertaining to Automated; Autonomous and Connected Vehicles, 1 Santa Clara High Tech. L. J. 99 (2014), available at http://digitalcommons.law.scu.edu/chtlj/vol31/iss1/3/

NCHRP 20-102(07) Interim Report 88 Harmonization Task Group 6: Connected Vehicle Security Policy formalized the security life cycle of a connected vehicle device and identified the 90+ interfaces related to specifically managing security in the connected vehicle environment. The relevant interface definition document is available through a link on this page: http://local.iteris.com/cvria/html/about/security.html