Implications of Connected and Automated Driving Systems, Vol. 1: Legal Landscape (2018)

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NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 1 Introduction Connected and Automated Vehicles and Highly Automated Vehicles (SAE International J3016 Level 3 and above), as denoted by NHTSA—hereinafter referred to collectively as C/AV or C/AV/HAV and individually as CV, AV and HAV—are slated to transform mobility around the globe. It seems that hardly a week goes by without a new country or locality making an announcement regarding testing of C/AVs/HAVs. According to Wagner and Loftus-Otway, where testing of C/AVs is underway and there is enthusiasm about further integration of the benefits and capabilities of automated transportation onto state highways, policymakers are eager to learn more about the intersection of this new wave of technology with the existing legal infrastructure. Specifically, policymakers are interested in whether the existing law prohibits or impedes testing or deployment of the technology or, conversely, whether greater legal oversight may be desirable. (Wagner & Loftus-Otway, 2016) To this end, many countries, states/provinces, and local jurisdictions are beginning to develop statutes, regulations, and policies with regard to the integration of these vehicles into the existing transportation network, often through the use of pilot tests. These guidelines are also being instituted with regard to the registration of C/AV/HAVs and the regulations for drivers who are testing/deploying such vehicles. However, as noted by Davidson and Spinoulas (2015), laws are often cited as one of the primary obstacles to the effective and efficient integration of C/AV/HAVs onto public roadways. This has largely been the case because, up until recently, there was limited federal regulation within this area, and original equipment manufacturers (OEMs), transportation network companies, and other technology developers also questioned the role of states and local governments in making C/AV/HAV-related regulations. Up until October 2016, when NHTSA released its official policy on autonomous vehicles and cyber security in autonomous vehicles (NHTSA, 2016f and g), many states also adopted a wait-and-see approach before striding into the regulation and oversight of this new technology. The roll-out of laws and regulations is not without complexity, and this has impacted the passage of legislation. For example, the July after the May 2016 Tesla crash, Missouri Governor Jay Nixon vetoed truck platooning legislation (Elfin, 2016). In this incident, a 2015 Tesla Model S, with the “Autopilot” reportedly engaged, struck a 53-foot semitrailer in Florida and the driver was killed (Boudette, 2016). Tesla noted that the Autopilot did not notice “the white side of the tractor trailer against a brightly lit sky, so the brake was not applied” (StreetInsider, 2016). NHTSA opened investigation PE16-007 to examine the design and performance of any automated driving systems in use at the time of the crash (NHTSA, 2016b). This technical memorandum will cover six major areas. Section 1 will review United States (U.S.) federal activities within the sphere of regulating C/AV/HAVs. Section 2 will review state and local activities that are taking place. A review of all 50 states was undertaken to ascertain the state of the practice in this area. This section will highlight in greater details the states that have undertaken major activities in amending their motor vehicle codes. For a review of legislation that has been introduced across all 50 states (some of which has not passed out of state legislatures as law), please refer to Appendix C, which is a sortable Excel spreadsheet (provided as a separate file) delineating activities at the federal level and in each state, with links to legislation or policy materials. (The appendix also has sheets listing legal journal articles and other reports/articles from federal or state agencies, lists of pilots/tests of HAVs, and newsfeed articles.) Section 3 will highlight any activities being undertaken by transportation agencies within this field, with a focus on the American Association of Motor Vehicle Administrators (AAMVA’s) activities. Section 4

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 2 will provide brief summaries of law journal articles that have begun to lay out specific subject matter focus areas for policy-makers and legislators to consider as C/AV/HAV market penetrations grow. This section also includes a review of privacy laws. Section 5 will provide a high-level scope review of international activities being undertaken in this area. The team reviewed related activities taking place among our North American Free Trade Agreement (NAFTA) trade partners, Canada and Mexico, as well as in European countries and the European Union, Australia, and Japan. The memo wraps up in Section 6 with some initial recommendations. Assumptions from the following sources are also used in this memo’s review: NHTSA’s 2013 proposed timeline for market penetration of AVs (NHTSA, 2013), and SAE’s J3016 Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems, adopted by NHTSA as of October 2016 (NHTSA, 2016f). In addition, we have deliberately chosen to not use the terminology “autonomous vehicles” except where that term is specifically used by a source. This is partially driven by consensus on SAE’s J3016 terminology; discussions in legal literature regarding the importance of nomenclature that is clear and unambiguous (uniform use of the same terms going forward); and also because, from a robotics perspective, autonomous implies a robotic function requiring no outside stimuli or input to conduct an operation. In the case of C/AV/HAVs, outside stimuli—whether via cameras, radar, LiDAR, dedicated short range communication (DSRC), or other technology—is necessary for the vehicles to manipulate complex movements. And in the case of person-to-vehicle interaction, input on destination will be given by the vehicle’s “user.”