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

Chapter: Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations

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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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Suggested Citation:"Chapter 5. Opportunities for Anticipatory Legal Planning and Recommendations." National Academies of Sciences, Engineering, and Medicine. 2018. Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit. Washington, DC: The National Academies Press. doi: 10.17226/25294.
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NCHRP 20-102(07) Interim Report 89 Opportunities for Anticipatory Legal Planning and Recommendations This concluding section collects the analyses and recommendations identified in the preceding Findings and Analysis section and provides a summary of key considerations for agencies and a final aggregate analysis that was conducted through the 15-state audit. These recommendations also form the starting point for the prioritized timeline for integration and harmonization recommendations provided within Connected and Automated Driving Systems Legal and Regulatory Prioritization Assessment and Harmonization Analysis (Figure 3). 331 Figure 3. Process for Completing the Prioritization Assessment and Harmonization Analysis. Before proceeding with specific recommendations, our overarching recommendation is that for each desired modification, states (e.g., DMV staff or general counsel’s office) should identify which governmental institutions are legally authorized to make the modification. Because of the wide variation in how these responsibilities are structured in different states, our recommendations are generally directed to “states” in general rather than specific government entities. States also vary in their legal delegations of authority to state DMVs, DOTs and other relevant agencies. The nature of the statutory text itself will also affect whether legislative versus agency modifications are necessary or possible. For example, prescriptive and detailed statutes will generally require legislative modifications because they allow state regulators little to no 331 Serian, et al. (2018). Connected and automated driving systems legal and regulatory prioritization assessment and harmonization analysis. Manuscript submitted for publication. Legislative Landscape Overview Stakeholder Input In-depth Legal and Regulatory Review Prioritized Recommendations in Tasks 4 and 5: WHAT and WHEN

NCHRP 20-102(07) Interim Report 90 interpretive authority, which may prove problematic in the oversight of a quickly-changing technology. States will also need to identify the form the modification will take—e.g. laws versus regulations versus interpretation. These choices will also differ from topic to topic and state to states. Finally, states should consider the type of public deliberations that are desirable for various modifications, particularly when the choices involve significant public policy considerations. With this important caveat regarding important state-specific choices involved in implementing modifications, we offer the full list of 26 recommendations in Table 9. A final column indicates the page number where the recommendation is detailed in full. These are listed in the order they appear in Chapter 4. Table 9. Critical Category Checklist for Modification RECOMMENDATION TASK 3 PAGE REFERENCE USER REQUIREMENTS DEFINITIONS Conduct a critical review of fundamental vehicle code terms “drive,” “driver,” “operate,” and “operator,” and develop necessary clarification in terms, intent, and interpretation. 21 Address the possibility that vehicle codes can be interpreted to regulate only “drivers” (who are licensed and human) and exempt level 4–5 ADS- equipped vehicles from legal oversight. 25 DRIVER LICENSING Determine who can operate driving automation systems at different levels of driving automation and adjust the law for driver licensing requirements. 26 DRIVER TESTING AND EDUCATION Develop driving tests (or amend existing tests) keyed to varying levels of driving automation systems. 28 USER ATTENTIVENESS Modify prohibitions against inattentive drivers depending on level of driving automation system deployed. 32 UNATTENDED VEHICLES Clarify the meaning of laws that prohibit unattended vehicles, especially for level 4–5 ADS-equipped vehicles, including automated mobility as a service (A-MaaS) vehicles. 33 UNFAIR CRIMINAL AND CIVIL SANCTIONS ON USERS Amend statutes governing criminal and civil liability to leave open the possibility that when properly engaged, the ADS in a level 3–5 ADS- equipped vehicle could also be responsible in whole or in part for a resulting violation. 34 IMPLIED CONSENT Consider when “reasonable suspicion” of alcohol or drug use is appropriate in specific operational design domains (ODD) with a properly engaged level 3–5 ADS-equipped vehicle. 37 PROHIBITIONS AGAINST USE OF ALCOHOL AND LEGAL DRUGS Clarify alcohol and drug use and regulation (including in states where marijuana has been legalized) within the various levels of driving 38

NCHRP 20-102(07) Interim Report 91 RECOMMENDATION TASK 3 PAGE REFERENCE automation. Develop offenses, fines, and sentencing terms for lower level violations at varying levels of driving automation. USER DISTRACTIONS Modify anti-distraction provisions to enhance the utility of ADS-equipped vehicles for their drivers (while the ADS is unengaged) or passengers (while the ADS is engaged). 39 Vehicle Requirements VEHICLE TITLING AND REGISTRATION Memorialize, from the time of manufacture to junk or salvage on title and registration documents, that the vehicle is driving automation system- equipped. Consider memorialization of aftermarket technologies. 42 VEHICLE INSPECTIONS AND VEHICLE REQUIREMENTS Consider culling obscure requirements that reference specific items (e.g. use “steering assemblies” rather than “wheels” and “braking systems” rather than “pedals”). 45 Modify agency inspection legislation/regulations to accommodate the new technological features of C/ADS. 47 AFTERMARKET MODIFICATION Revise or clarify existing laws with respect to whether and how they regulate aftermarket driving automation system-related technologies installed on a vehicle. 53 MOTOR VEHICLE LIABILITY USER AND OWNER LIABILITY FOR DAMAGES Determine responsibility for crashes, incidents, and harms that may not be the result of human error but rather flaws in the ADS as engaged at the time of the event of interest. 54 CONSUMER PROTECTION LAWS Modify lemon laws to account for new driving automation system-related technologies to ensure adequate consumer protection from product defects. 56 RULES OF THE ROAD APPLICABILITY TO C/ADS Identify how and whether the rules of the road apply to different levels of driving automation systems. Ensure that level 4–5 ADS-equipped vehicles are not exempted from rules of the road requirements. 57 DUE CARE, HUMAN JUDGMENT, AND VISIBILITY REQUIREMENTS Modify or adjust benchmarks to accommodate the decision-making abilities of level 3–5 ADS-equipped vehicles operating at level 3 or above, especially for the “due care” standard, which is tethered to human judgment. 58 LOCAL RESTRICTIONS Modify local controls over roadways for who can operate on them, the rules of the road, and consider issues of state level preemption. 63 OCCUPANT SAFETY Revise occupant safety requirements to take full advantage of driving automation system-equipped vehicles' sensory capabilities (e.g., seatbelts and child boosters). 65 CRASH REPORTING Consider the need for modifications to “rendering aid” statutes for level 4 and 5 ADS-equipped vehicles. 66 PLATOONS AND FOLLOWING DISTANCE

NCHRP 20-102(07) Interim Report 92 RECOMMENDATION TASK 3 PAGE REFERENCE Consider the need to modify following distance requirements for platoons on a state’s highways. This is particularly important in states that impose prescriptive following distances. 67 CLARIFICATION OF THE LEGAL CLASSIFICATION OF PLATOONS Provide guidance and clarify the legal classification of truck platoons. 68 CONSIDER AGGREGATE LENGTH, WEIGHT, AND NOISE LIMITS, AS WELL AS LANE RESTRICTIONS FOR PLATOONS Develop restrictions as needed if technical scan/engineering analyses identify any negative length, weight, and/or noise effects due to trucks operating as a platoon. 74 LOCAL AUTHORITY OVER PLATOONING Audit state laws and regulations that may impose lane restrictions or service requirements on platoons to develop harmonization across the state. 75 PRIVACY PROTECTIONS Assess state policy protections for privacy-sensitive data collected on vehicles through connected infrastructure and vehicle transmission and also the implications of open records laws and the applicability of current state privacy protection statutes. 79 The Transportation Research Board and the Oversight Panel’s foresight in requesting an assessment of the gap between current legal research and state activity relating to C/ADSs has highlighted the need for a more systematic, rigorous and comprehensive review of the entire body of motor vehicle laws. We hope that the categories and methods employed here will assist states in doing this important, legal inventory work in the future. Certainly, our own emphatic conclusion from this research is that individual state-specific audits are essential if states wish to establish a stable, accountable, and legally responsible foundation for the integration of C/ADSs into existing motor vehicle programs. 5.1 Overarching Recommendation The overarching recommendation resulting from this analysis is that states should examine the fundamental legal concepts and terms that undergird their motor vehicle and transportation programs and consider how these concepts and terms will be affected by C/ADSs.332 Understandably, many state legislators and agencies currently operate largely in reactive mode, crafting piecemeal revisions and solutions to legal impediments and gaps as they arise. Officials may find their attention diverted to addressing minor, immediate issues, such as how to “brand” a C/ADS or what to add to registration or inspection forms, while neglecting fundamental gaps in their MVCs and regulations. Our analysis suggests that excessive focus on the “trees” (individual rules and regulations) without considering the larger “forest” of law is problematic. Making piecemeal changes to individual legal elements raises the risk of disrupting the overarching legal framework’s cohesiveness. This approach also creates the risk that some of the most fundamental 332 This recommendation parallels recommendations of the ULC in January, 2017. See ULC, Study Committee on State Regulation of Driverless Cars, Midyear Report & Final Recommendation at 14-16 (Jan. 4, 2017).

NCHRP 20-102(07) Interim Report 93 legal issues associated with safe operations of level 4–5 ADS-equipped vehicles will be missed completely. To illustrate the problem with a focus primarily on the legal “trees” at the sake of the “forest,” consider the flurry of activity in some states to accommodate truck platoons. Given the technological advances which enable platooning, states are working to interpret or revise their following distance laws. We discuss the following distance legislative impediment at length in this report and concur that legal modifications are likely necessary at least in some states. In this case, a reader might conclude from our analysis and recommendation that since “everybody knows” about the challenges posed by following distance, the report offers little added direction or value However, our analysis reveals deeper foundational legal questions (the “forest”) regarding key terms with regard to platoons. Following distance requirements generally apply to the “driver” of a vehicle. But recall that the term “driver” is ambiguous and can thus have a range of meanings, which includes the possibility that trucks with an ADS properly engaged have no “driver” and hence are not bound by any following distance requirement at all. The same problem arises with respect to many other rules of the road, which in some states are directed primarily towards “drivers” rather than “vehicles.” In the case of platoons, the legal ambiguities run still deeper. In the states in our sample, a “combination of vehicles” must comply with a number of weight and length restrictions. However, the term “combination of vehicles” is generally undefined, though the expert community largely takes the phrase to mean a single unit of physically linked trailers and trucks. Nevertheless, the absence of a clear legal definition in state codes could raise confusion that could be easily avoided with anticipatory legislative or regulatory clarification. Platoons are only one of many examples that illustrate the fundamental ambiguities in codes that are often ignored during legal maneuvering to accommodate C/ADSs in the transportation network. And while states can certainly choose to remain reactive, amending legal impediments individually as they arise, the result in the long-term is likely to be growing confusion, ambiguity, and less accountable government policies. Additionally, as the cohesion of the overall legal framework is undercut by piecemeal change, it will become more difficult for the public to understand these policy decisions, even if they are widely publicized. This brings with it the risk of more difficult C/ADS integration and greater chances of public misuse of ADS technologies. The DMV and DOT staff charged with addressing all the issues relating to C/ADSs likely lack the time and resources to do this inventory work themselves. And many of these legal issues are more appropriately the province of state legislators. Accordingly, we recommend that DMVs and DOTs convene advisory committees to identify, research, and address the systematic legal issues associated with the use of C/ADSs. These committees should include representatives from the state legislature and affected agencies working together to conduct state-specific audits and making recommendations as needed. This is further discussed in the Prioritization Assessment document.

NCHRP 20-102(07) Interim Report 94 5.2 Major Findings and Recommendations Driver and Operator Requirements The first and potentially most urgent legal issue in need of modification is a clarification of the legal status of level 4–5 ADS-equipped vehicles that are being operated with the ADS engaged. As discussed in the Findings and Analysis section, in the majority of states in our sample (Category 2 and 3 states [low and no legislative activity]), laws are sufficiently ambiguous that they could be interpreted to largely exempt these vehicles from much legal oversight, including both in terms of license requirements and rules of the road. Because these level 4–5 vehicles— under a conventional interpretation of the word “drive”—are not being moved by a “person” who is “driving,” the codes do not directly apply to them. The ambiguity arises at the earliest when some level 4 ADS t echnologies are deployed. The need for modification, ideally consisting of clarifications for the terms “drive,” “operate,” and “person,” occurs in two-thirds of the states in our sample. The five Category 1 states (high legislative activity) have already addressed these issues legislatively by amending their state codes to address “drive” and “operate” ambiguities (Figure 4). Figure 4. Breakdown of States that Have Modified Terms Drive, Driver, Operator In providing these clarifications, states will likely have to consider a range of possible interpretations of these foundational terms as they apply to C/ADSs. In this regard, at least two distinct alternative interpretations emerge. An expansive reading of “driver” sweeps in all C/ADSs, including level 4–5 ADS-equipped vehicles, by interpreting “driver” to apply to computer-controlled ADS, dispatchers, and human drivers. Such a legal interpretation will also Category 2 and 3 states (should consider clarifying key terms) 67% Category 1 states (already clarified key terms) 33% Percent of States in Sample that Should Consider Legal Clarifications to Fundamental Legal Terms (N=15)

NCHRP 20-102(07) Interim Report 95 allow rules of the road and other “driver”-directed requirements to apply to all forms of automated transportation. On the other hand, such a sweeping interpretation of “driver” may require an entirely new program that provides for the licensing of non-human C/ADSs. Since most state licenses are currently geared towards humans, both in terms of the information required as well as the testing and requirements, a non-human licensing track will need to be established to enable these ADSs to also be licensed as “drivers.” Alternatively, if states choose to interpret the term “driver” more narrowly, so that it does not include remote users, new programs governing level 4–5 ADS-equipped vehicles will need to be established, as these vehicles are likely exempt from the many legal provisions that currently apply only to “drivers.” In most states, for example, the rules of the road and even following distance requirements apply to “drivers.” If level 4–5 vehicles operating with the ADS engaged are not “drivers” because they are not human, then the current state codes will effectively be inapplicable.  Recommendation 1: 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.  Recommendation 2: Policy makers should directly address the possibility that their vehicle codes can be interpreted to regulate only “drivers” (who are licensed and hence human), thus effectively exempting from legal oversight level 4–5 ADS-equipped vehicles (where the ADS, when engaged, could be considered the “driver”). Driver Licensing Existing state codes and regulations provide some inflexible (e.g., age, vision) and some more open-ended (e.g., mental health, physical impairment) barriers to C/ADSs by those who might benefit from their use. Regulations in some states reinforce these barriers with even more prescriptive limitations on who can obtain a valid license. Some of these restrictions could potentially be modified, at least on a case-by-case basis, by matching limitations with the technological capabilities of the vehicle. This type of legal modification is needed to allow some of the most important benefits of the technology to be utilized by those currently excluded from driving due to various barriers.

NCHRP 20-102(07) Interim Report 96  Recommendation 3: 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. Reciprocity Reciprocity considerations are also present in a few of the state codes in our sample. These current provisions, however, are quite general. Thus, rather than requiring clarifications, we be lieve that future work will occur with regard to adding new C/ADS standards and provisions to ensure harmonization among states. Driver Testing and Education Within the state codes and regulations, there are few, if any, legal provisions that would require existing laws to be modified for C/ADSs. Rather, the legal changes needed in this area consist almost exclusively of adding wholly new standards, new programs, and new requirements to the existing legal foundation. We offer preliminary observations that underscore some of the types of new requirements that might be necessary.  Recommendation 4: Policy makers should consider adding components to existing, or possibly adding new, driver 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. Driver Sanctions There are a number of provisions that may be rendered obsolete or come into tension with the realities of C/ADSs. We group them by categories here. Operator Attentiveness Only a few states require that the driver be fully attentive while driving, but when these conditions apply, they limit the use of level 3 ADS-equipped vehicles and above. New York has eliminated its legislative requirement that drivers must keep at least one hand on the wheel,333 333 NY SB 7879, available at https://www.nysenate.gov/legislation/bills/2015/S7879

NCHRP 20-102(07) Interim Report 97 but New Mexico retains its requirement on complete attentiveness to the road at all time. Two other states allude to this same complete attentiveness, although their application is slightly more ambiguous.334 In the states (20% within our sample) that do adopt specific requirements for complete driver attentiveness, these laws will preclude some of the consumer benefits of automated transportation.  Recommendation 5: 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 an ADS-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. 5.3 Unattended Vehicles Many states also prohibit users from leaving vehicles “unattended.” It is not clear what unattended actually means, however. Unattended could mean that no human is present in the vehicle, thus precluding the use of unoccupied A-MaaS vehicles that are moving from one location to another. Alternatively, it is possible that unattended has a far narrower meaning applicable only to vehicles that are not being actively controlled by a human or an ADS (or both). For example, perhaps if the user includes a remote party or computer, a state may determine that it is not actually unattended. Regardless of the preferable policy choices, some legal clarifications are useful for the prohibitions against unattended vehicles to provide greater clarity to a term that was relatively self-explanatory when applied to level 0 vehicles.  Recommendation 6: 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. Unfair Criminal and Civil Sanctions on Drivers There are scattered provisions in state codes that may lead to the unfair imposition of criminal and civil liability on users when the ADS was properly engaged.335 Some state liability provisions impose criminal and/or civil liability solely on owners and operators for violations, leaving OEMs potentially absolved of direct liability even if the legal violation was caused by an ADS with flawed programming or design. Law enforcement reporting systems will also need to be revised to ensure that this reporting includes the consideration of ADS that may share legal 334 See supra Part II.A.2. 335 See, e.g., supra Parts II.B. and F.

NCHRP 20-102(07) Interim Report 98 responsibility for violations caused by vehicles operating in automated mode at the time of violations or accidents.  Recommendation 7: 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 presumption336 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. Implied Consent Implied consent laws, which are included as part of licensing, may also need to be refined when level 4–5 ADS-equipped vehicles are operating with the ADS properly engaged in ways that arguably rebut a “reasonable suspicion” of unreasonable alcohol or drug use.  Recommendation 8: Policy makers and regulators should consider the conditions under which a “reasonable 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. Prohibitions Against Use of Alcohol and Legal Drugs In many states, sanctions are placed on drivers for alcohol and narcotic use and in some cases for open containers. In settings in which the state agency determines that legalized use of alcohol or other drugs is not incompatible with the operation of vehicles at specific levels of automation, then modification to existing law will be necessary.  Recommendation 9: 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. 336 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

NCHRP 20-102(07) Interim Report 99 Driver Distractions As Figure 5 below indicates, the majority of states in our sample impose one or more restrictions that limit the types of activities users of level 3 and above ADS-equipped vehicles can engage in while the car is operating with the ADS properly engaged. How or whether these laws should be modified will involve numerous public policy considerations as well as technological considerations. For example, there may be questions about whether the user is ready for the hand-off (particularly in level 3 ADS-equipped vehicles). Regardless, at least some of these restrictions will come under pressure as they limit the benefits of ADS technology. Figure 5. Percent of States Prohibiting Driver Distractions  Recommendation 10: States should consider modifications to these anti-distraction provisions. 5.4 Vehicles Vehicle Titling and Registration Vehicle titling and registration, as currently embodied in the statutes and regulations, does not appear to impede the introduction of C/ADSs onto roadways. There may eventually be the need to create new requirements and provisions to ensure adequate attention to some of the new C/ADS. In the meantime, state agencies responsible for vehicle registration may benefit from using the existing registration system to begin tracking vehicles with different levels of automation. 73 36 46 64 27 0 25 50 75 100 Television Texting Cell phone Texting or Cell phone EarplugsP er ce nt o f S ta te s i n Sa m pl e Full or Partial Bans on Use by Driver Percent of States in Sample Prohibiting Driver Distractions

NCHRP 20-102(07) Interim Report 100  Recommendation 11: 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 driving automation system or 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. 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. While state legislation governing inspections can be general, some state laws dictating the requirements for vehicles are much more specific may be incompatible with C/ADS. Specifically, a number of states impose prescriptive requirements on brake pedals and steering wheels. (Figure 6). These requirements may create barriers for some types of C/ADSs that are designed without steering wheels or brake pedals. Figure 6. Percent of States in Sample Imposing Legislative Restrictions  Recommendation 12: 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. 46 27 64 0 25 50 75 100 Steering wheel Brake Window visibility Pe rc en t o f S ta te s i n Sa m pl e Legislative Requirements Percent of States in Sample Imposing Legislative Restrictions on Vehicles

NCHRP 20-102(07) Interim Report 101 Some states also require safety inspections for vehicles, and while the legislative requirements governing inspections are general, agency regulations promulgated under these statutes can be quite specific. Some state agencies, for example, require even more specific features for steering wheels and brake pedals in order for a vehicle to pass inspection. For level 4–5 ADS-equipped vehicles, these requirements may need to be modified. Additionally, wholly new programs and requirements may ultimately need to be added to state inspection requirements.  Recommendation 13: 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 State codes and regulations generally do little to address or regulate vehicle maintenance requirements, particularly as they might pertain to software updates, which will become essential to C/ADS safety. To address this gap in oversight, states may need to craft new laws and regulations targeted at these important maintenance issues. Preliminary observation regarding how such new requirements might fit with existing law include adding provisions for inclusion of specific terminology for level 4–5 ADS-equipped vehicles to any statutes regarding insurance. Aftermarket Modification Legal restrictions of aftermarket modifications of driving automation system and ADS technologies are relatively rare in state MVCs and accompanying regulations reviewed for this analysis. Yet aftermarket modification of vehicles, particularly retrofitting conventional vehicles with automated features through conversion kits, presents new public risks and will be in need of regulatory oversight. The existing codes in the few states in our sample that do regulate aftermarket modifications of conventional vehicles, moreover, do not make it clear whether the existing prohibitions actually apply to C/ADS conversions, since the legal terms tend to refer to equipment rather than electronic features, such as software. Moreover, while vehicle inspection and registration oversight might catch some aftermarket problems, this registration again may not be able to detect all risks by nature of the inspection process. In any event, the after-the-fact nature of vehicle inspections is likely to impose an insufficient deterrent to attempting these modifications if they are otherwise legal in the state.

NCHRP 20-102(07) Interim Report 102  Recommendation 14: 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. 5.5 Motor Vehicle Liability Operator and Owner Liability for Damages Some states have legislated liability for crashes and resulting damages. The responsibility in these laws generally falls entirely on the owner and user and not on the manufacturer of the vehicle. Yet if the vehicle’s ADS is properly engaged at the time of a crash, responsibility may fall more appropriately on OEMs. This creates a parallel need to define the process for determining who was in charge of driving at the time of the crash (likely by modifying EDR regulations, typically a Federal responsibility).  Recommendation 15: 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 At least one state in our sample has passed a law designed to protect consumers from the sale of defective vehicles. (These laws are often referred to as lemon laws.) Yet as drafted, these laws may make it difficult for consumers to recoup expenses associated with defects in C/ADSs that are likely to be detected over a period of years rather than months as specified in this legislation. Indeed, in one state in our sample, the consumer protection law is written in ways that may absolve OEMs of responsibility for all defects in their vehicles or programming one year after sale.

NCHRP 20-102(07) Interim Report 103  Recommendation 16: 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. 5.6 Rules of the Road Applicability to C/ADSs The application of rules of the road to level 4–5 ADS-equipped vehicles remains unclear in most of our selected states (identified earlier as Category 2 and 3 states that have not amended codes to address “drive” and “operate” ambiguities). If the term “drive” remains ambiguous, one could argue that a level 4 ADS-equipped vehicle without a user behind the wheel does not equate to a vehicle being “driven” by a “person” as those terms are normally used. Legislative or other legal clarifications therefore seem necessary to resolve the status of level 4–5 ADS-equipped vehicles with respect to the traffic laws that are explicitly directed only at a “driver” who is a “person.” In Texas, this gap in the legal reach of the rules of the road (which generally direct their requirements to “drivers”) was addressed by a legislative amendment that re-defines “driver” to include “vehicle” for the rules of the road requirements.  Recommendation 17: Policy makers should identify, as a legal matter, how and whether the rules of the road apply to different levels of C/ADSs 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. Due Care, Human Judgment, and Visibility Requirements There are also a number of rules of the road that rely in part on due care, which in turn is linked to human judgment. The most dramatic examples are those rules governing drivers who approach horses or livestock that might be frightened by the approach of a vehicle, or pedestrians or cyclists who are not behaving normally. Senses of sight, sound, and even intuition would seem vital for complying with these requirements, and C/ADS programming capabilities may not be up to the level of the human in these multi-sensory situations. Beyond these spooked animal and aberrational human provisions unique to a few states are a number of other provisions that also appear to require visual and sensory cues, as well as human judgment, that may not be technologically possible in C/ADSs. For example, yielding to blind persons, gauging the passing distance on hills and curves, noting other drivers’ hand signals,

NCHRP 20-102(07) Interim Report 104 being flagged by road construction crews, and taking special protections for children in the vicinity of ice cream trucks all may stretch the sensory capabilities of C/ADS programming, which may create barriers for C/ADSs to comply with existing due care legal requirements.  Recommendation 18: 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. Local Restrictions Control over locally owned and maintained roadways remains an important consideration related to rules of the road. In some states, vehicle or transportation code preempts local authority, but there is still a concern regarding local authority in other states. This authority may create some unpredictability and even conflict in accommodating C/ADSs.  Recommendation 19: 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. 5.7 Occupant Safety All states in our sample have child restraint requirements that tie the nature of the restraint to the age of the child. It is not likely that C/ADSs will be able to learn this information through sensors. Modifications to these laws may thus be necessary to accommodate C/ADSs’ sensory capacities, particularly in level 4–5 ADS-equipped vehicles where there are no human operators and the users cannot take care of themselves.

NCHRP 20-102(07) Interim Report 105  Recommendation 20: 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. 5.8 Crash Reporting All of the states in our sample adopt some formulation of the “render aid” provision found in the UVC. 337 Specifically, if a driver is in an accident, they must not only stop and contact emergency officials, but also render aid to others who are injured in the accident. Whether rendering aid is necessary and to what extent this aid should be offered may be difficult to program into an ADS. All states also require a driver to locate the owner of unattended property that is damaged and, if that fails, to leave a note with their contact information. Again, this type of requirement may be difficult to accommodate with ADS technology. Some states also place responsibility on other adult occupants of the vehicle for the notification requirements when the driver is incapacitated (thus allowing for compliance even in level 4–5 ADS-equipped vehicles that have occupants), but these requirements typically only apply to accidents that involve serious injuries.338 Somewhat similarly, while remote users may be able to coordinate some rescue, again it seems difficult to imagine how a person not present at the scene could fully comply with render aid requirements. These various barriers created by render aid provisions may require modification in the long- term, although they would likely arise only in situations involving level 4–5 ADS-equipped vehicles that are operated remotely. At level 3 and below, a user will be present in the vehicle and thus will be able to render aid in keeping with these requirements.  Recommendation 21: 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. 5.9 Platoons and Following Distance

NCHRP 20-102(07) Interim Report 106 The benefits of automated platoons in trucking arise in part from the ability of the trucks to travel in relatively close proximity to reduce wind drag and increase fuel economy. Automated technology allows for this close proximity in part by synchronizing the braking and acceleration of trucks. In a platoon, robotic controls are generally superior to human capabilities in rapidly reacting with the precise degree of braking or acceleration needed to maintain distance between vehicles without colliding, even during a rapid slow-down or quick stop. Following Distance In states that do not allow for short following distances to enable the close proximity between trucks, the critical benefits of platooning are lost. Specifically, most states in our analysis impose following distances that prescribe either an “occupy” requirement or a prescriptive distance requirement or both (See Figure 7). Only the first requirement (the first category requiring only “due care”) is considered accommodating to automated truck platoons. The remaining categories generally involve legal approaches that require following distances that may impede platoons’ use. Of the states in our sample, 85% deploy following distances that are likely to pose some type of barrier to the use of truck platoons. However, according to industry experts, this percentage is lower on a nationwide basis. Figure 7. Variation in State Following Distance Requirements 13 33 20 6 20 0 10 20 30 40 50 Pe rc en t o f S ta te s i n Sa m pl e Type of Legislative Requirement Variation in State Following Distance Requirements

NCHRP 20-102(07) Interim Report 107 Moreover, for those states that do dictate a following distance (six states in our 15-state sample), the prescribed distance tends to be 300 feet or longer, which is well beyond the ideal following distance for most platooning activities. The pie chart below (Figure 8) provides the different distances prescribed by these six states (Note however, that these distance requirements are imposed only under certain conditions and not in others, so the summary is a general one).339 Figure 8. State Following Distance Mandate Variations As a result of these state following distance laws, it seems likely that legislatively prescribed following distances, particularly numerical standards, will pose a barrier to platoon technology that will need to be addressed in the near term. A due care standard, like the one adopted in Michigan, may ultimately provide sufficiently flexibility to platoon travel while keeping following distances to the appropriate, safe level, although this requires additional research.  Recommendation 22: 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. Clarification of the Legal Classification of Truck Platoons 339 Not recorded here is the fact that one state in our sample took an alternate tact and imposed a braking time headway of 2 seconds. UT § 41-6a-711. A braking time headway approach would seem to present fewer impediments. 100 feet 16% 300 feet 67% 500 feet 17% Percent of States Falling into Conventional (Model 1) vs. Contemporary (Model 2) Approaches Governing Operation Requirements (N=15)

NCHRP 20-102(07) Interim Report 108 There are several other types of legal modifications that state legislatures may find useful with respect to the operation of automated platoons. The first modification would clarify the legal status of a platoon as a unified group of independent vehicles. As discussed in the analysis of platoons, in many state codes the legal classification of platoons is unclear and could lead to confusion.  Recommendation 23: 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. Consider Aggregate Length, Weight, and Noise Limits as Well as Lane Restrictions for Platoons At the same time that clearer legal classification of platoons is desired, states may need to revisit the length and weight restrictions currently applied to aggregate platoons allowed on the highways. Based on our research, states have not yet placed limits on platoons with regard to features such as the number of trucks, cumulative length, or cumulative weight.340 It is not yet known the structural and safety risks that may occur in relation to the number of trucks traveling in a platoon. If such risks exist, some limits or restrictions may ultimately need to be applied considering the size of the platoon as a whole. Stakeholders expressed concerns regarding the potential costs of accommodating platooning commercial vehicles. Specifically, stakeholders expressed concern that platooning heavy goods vehicles could damage roadways, especially local roads that are not designed to carry such traffic. These stakeholders recommended limiting platoons to interstates to reduce the financial burden of repairs on states and localities. This specific area of research is beyond the scope of this report, and largely unsettled. As such, the research team recommends more research be conducted to determine the effects of platooning on local roads. If lane restrictions are used, these may also need to be examined and revised to accommodate the needs of platoons.  Recommendation 24: 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. Local Authority Over Platooning 340 Michigan, which appears to be the most advanced legislatively in addressing platoons, and does not appear to place aggregate limits on platoons. MI Stat. § 40c.

NCHRP 20-102(07) Interim Report 109 Local authority to regulate platoons may need to be revisited if local control effectively operates as a veto over the use of platoons in large portions of the states.  Recommendation 25: 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. 5.10 Privacy Protections While many privacy risks potentially raised by C/ADSs are likely to be addressed at the federal level, there are reinforcing features of state law that may need to be addressed as well. First, open records statutes may allow for public access to data that is gathered through state connected infrastructures or other systems. If this data ultimately presents credible risks of revealing new information about drivers that, when combined with other publicly accessible information, could infringe on their privacy, these statutes may need to be reviewed and potentially modified. Second, EDR statutes prohibit most third-party access to the data contained in these devices, but analogous prohibitions are generally not in place for other onboard electronic devices that could store private information. These EDR laws may also benefit from modification or extension. Finally, states may need to place legislative restrictions on the ability of law enforcement to use certain government-stored data for enforcement purposes in order to comply with Fourth Amendment items (the protection against unwarranted searches and seizures).  Recommendation 26: 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.

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TRB's National Cooperative Highway Research Program (NCHRP) Web-Only Document 253: Implications of Connected and Automated Driving Systems, Vol. 2: State Legal and Regulatory Audit assists state agencies as they work to adapt their legal programs to reflect the realities of Connected and Automated Driving Systems (C/ADSs)—a term that in this report encompasses both vehicle connectivity and an Automated Driving System. The study highlights dozens of state code provisions that may need modification or clarification to reduce ambiguity and uncertainty as they apply to C/ADSs.

View all volumes of NCHRP Web-Only Document 253:

  • Vol. 1: Legal Landscape
  • Vol. 2: State Legal and Regulatory Audit
  • Vol. 3: Legal Modification Prioritization and Harmonization Analysis
  • Vol. 4: Autonomous Vehicle Action Plan
  • Vol. 5: Developing the Autonomous Vehicle Action Plan
  • Vol. 6: Implementation Plan
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