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 24 Section 2: State Law Review Currently, states are charged with reducing traffic crashes and resulting injuries, property damage, and deaths under 23 USC Section 401 (Highway Safety Act). States can utilize this authority to establish highway safety programs that address driver education and testing, licensing, vehicle registration and inspection, pedestrian safety, law enforcement, highway design and maintenance, crash prevention, investigation and record keeping, traffic control, and emergency services. A review of legislation throughout the U.S. and internationally showed that, from a legal and regulatory perspective, legislating for C/ADSs is just beginning. As of June 2018, 29 states and Washington, D.C. have passed legislation related to driving automation system-equipped or ADS-equipped vehicles while governors in another 10 states have issued executive orders. Three states, Maine, Wisconsin, and Washington, have enacted legislation and executive orders (Figure 4). Figure 4. Map of state automated vehicle-related activities as of June 2018. Appendix C of this technical memorandum (provided in a separate, sortable Excel file) details legislation, or lack thereof, in every state. In this section we discuss the legislation, regulations, and some of the complications that have arisen with regard to the law and C/AVs/HAVs. Additional information about legislation/regulation is detailed on the National Conference of State Legislatures’ and Stanford University’s Center for Internet and Society websites.1 1 Two websites offer overlapping information on state developments: http://www.ncsl.org/research/transportation/autonomous- vehicles-legislation.aspx and http://cyberlaw.stanford.edu/wiki/index.php/Automated_Driving:_Legislative_and_Regulatory_Action#Enacted

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 25 Arizona In 2015, Arizona announced it would begin research and development of AV operations. Governor Doug Ducey signed Executive Order 2015-09 in August, directing various agencies to “undertake any necessary steps to support the testing and operation of self-driving vehicles on public roads within Arizona” (Ducey, 2015). The order establishes the Self-Driving Vehicle Oversight Committee within the governor’s office to develop regulations for enabling the development and operations of C/AV/HAV pilot programs at selected universities. After Uber left San Francisco in late 2016, they deployed a series of test HAV vehicles in Arizona (Hagan, 2017 ). In February 2017 Arizona introduced HB 2434, which had amended language regarding handheld device prohibition. HB 2434 would have deemed a person 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. A companion bill was also introduced in the Senate (SB 1135). Neither of these bills were enacted. Arkansas Arkansas enacted HB 1754 on April 1, 2017 that regulates the testing of vehicles with autonomous technology and specifically added provisions regarding driver assistive truck platooning (DATP) systems and reduced the following distances of such systems. The Act defines “driver-assistive truck platooning system” as technology that integrates sensor array, wireless communication, vehicle controls, and specialized software to synchronize acceleration and braking between two or more vehicles while leaving the designated vehicle’s steering control and systems command in the control of its human operator. It additionally defines “autonomous technology” as technology installed on a motor vehicle that has the capability to drive the vehicle without the active physical control or monitoring by a human operator for any duration of time. “Autonomous vehicle” is defined as a vehicle equipped with autonomous technology that can drive the vehicle without the active physical control or monitoring of a human operator for any duration of time. The Act amended Arkansas Code §27-51-305 regarding following too closely to not prevent overtaking and passing of vehicles equipped with DATP systems. Under the Act at Section 1 (c) vehicles equipped with DATP systems may follow other vehicles closer than allowed under subsection (a) and (b) (1). These previously required a motor vehicle to follow not more closely than reasonably prudent having due regard for speed and trucks on a roadway outside of a business or residence district could not follow within 200 feet of another vehicle. DATP is defined as technology that “integrates sensor array, wireless communication, vehicle controls, and specialized software to synchronize acceleration and braking between 2 or more vehicles while leaving and designated vehicle’s steering control and systems monitoring in the control of its human operator.” Section 2 of the bill amends Arkansas Code Title 27, Chapter 51 at Subchapter 15, (§27-51-1408) to add an additional section that authorizes DATP truck platooning systems on a street or highway if a plan for general platoon operations is filed with the State Highway Commission. A person may operate a DATP system upon plan approval by the State Highway Commission, or after 45 days if the plan is not rejected by the State Highway Commission.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 26 California Legislation California was an early leader in the C/AV/HAV legislation arena. On September 25, 2012, the state passed State bill (SB) 1298, which, as amended, defines “autonomous technology,” “autonomous vehicle,” and “operator,” and finds that the state “presently does not prohibit or specifically regulate the operation of autonomous vehicles;” requires rulemaking before 2015; permits current operation under certain conditions; imposes additional oversight on the operation of vehicles without a human in the driver’s seat; and requires that the “manufacturer of the autonomous technology installed on a vehicle shall provide a written disclosure to the purchaser of an autonomous vehicle that describes what information is collected by the autonomous technology equipped on the vehicle.”2 California also requires a crash data recorder for C/AVs/HAVs sold to the public and imposes detailed requirements governing the capabilities of the recorders.3 As C/AV/HAV technology and testing has progressed, NHTSA has issued guidelines, and California has been very proactive with legislation regarding non-human controlled vehicles, despite the fact that other jurisdictions have wholly avoided creating legislation governing this technology. Waymo’s (formerly Google’s self-driving car project) HAVs, for example, have no steering wheels or brake pedals and are expected to fall under the more intense scrutiny of California legislation if tested there. The active participation of Consumer Watchdog in opposing C/AV/HAV bills (Simpson, 2012) has been an impediment since 2012 for those who wish to develop HAVs in the state. 4 Indeed, Consumer Watchdog has actively sought to curb rapid development of certain C/AV/HAV technologies nation-wide (Loveday, 2016). Truck platooning seems to have fewer legislative barriers than C/AVs/HAVs. SB 431, passed as of May 14, 2015, amends existing law on following distance to allow for driver-assistive truck platooning. The bill requires a determination of a reasonable and prudent distance between vehicles and requires taking into account the presence of vehicle automation technology in existing legal provisions that prohibit a driver from following too closely. The bill also establishes that a caravan or motorcade consists of three or more motor vehicles.5 California already allows self-driving vehicle testing on public roads for 15 automakers, technology companies, and startups, including Waymo, Ford, Honda and Tesla. However, until recently, a human had to be in the driver’s seat to monitor the car and the car had to have brakes and a steering wheel. But with the passage of Assembly bill (AB) 1592 (introduced by Assemblywoman Susan Bonilla) on September 29, 2016, public road testing of the first fully-autonomous vehicle (SAE Level 5; driverless shuttle) without a steering wheel, brakes, accelerator, or operator, was authorized, and the move towards HAVs in California was established. The bill authorizes the Contra Costa Transportation Authority to conduct a pilot project testing HAVs not equipped with steering wheels, brake pedals, accelerators, or operators inside at specified locations and speeds under 35 miles per hour. The bill also assisted the movement on a pilot test of driverless shuttles by French company Easymile, which had been on hold. A project at an office park in the city of San Ramon (Contra Costa County) had also been on hold pending passage of the bill (Fortune, 2016). This new bill was necessary because the shuttle crosses a public road on its loop through the private campus. The new law allows for the two driverless shuttles to be tested for a period of 2 SB 1298, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201120120SB1298. 3 Cal. Vehicle code § 38750(c) (1) (G). 4 See Senate floor Bill analysis of SB 1298. OPPOSITION: (Verified 8/29/12), Alliance of Automobile Manufacturers, Consumer Watchdog. https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201120120SB1298. Global Automakers 5 SB 431, An act to amend Sections 21703 and 21705 of the Vehicle Code, California Legislature. http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB431

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 27 up to 6 months before being deployed and used by people (Fortune, 2016). Although they will travel no faster than 25 mph (40 kph), these shuttles may promote future acceptance by the legislature of fully driverless vehicles. Introduced in January 2017, California AB 87 would give the California Department of Motor Vehicles (DMV) more ways to penalize companies that illegally operate HAVs. Under the bill, the DMV would be able to authorize police to impound the vehicles without permits and fine companies up to $25,000 per vehicle, per day of violation. The DMV would also be able to prohibit companies in violation of the law from applying for an autonomous vehicle permit for two years. Under the current law, companies that operate HAVs without a permit receive a lesser infraction (DMV of California, n.d.) California enacted SB 1 in April 2017 (SB 1, April 28, 2017). As part of its transportation funding program, it created at Chapter 2 the Road Maintenance and Rehabilitation Program to address deferred maintenance on the state highway and local street and road systems. Chapter 2 §2030 §(d) provides that to the extent possible and cost effective, and where feasible, the department and cities and counties receiving funds under the program shall use advanced technologies and communications systems in transportation infrastructure that recognize and accommodate advanced automotive technologies that may include, but are not necessarily limited to, charging or fueling opportunities for zero-emission vehicles, and provision of infrastructure-to-vehicle communications for transitional or full autonomous vehicle systems. Regulations The California DMV continues to propose and modify C/AV/HAV regulations. Senate Bill 1298 (Chapter 570; Statutes of 2012) enacted Vehicle Code §38750, which requires the DMV to adopt regulations necessary to ensure safety in C/AV/HAV operation.6 Regulations for C/AV/HAV testing by manufacturers on public roadways were adopted May 19, 2014, and became effective September 16, 2014.7 Over the last several years, the DMV has engaged the public in discussions regarding the requirements for post-testing deployment of A C/AV/HAVs (e.g., the use of C/AVs/HAVs by the public). California currently requires disclosure of accidents and near-misses occurring during testing,8 which has helped create a vast store of data on C/AV/HAV testing. Draft deployment regulations were initially issued December 16, 2015.9 Public workshops followed on January 28, 2016, and February 2, 2016. The last workshop was held in October 2016. The DMV’s goal was to align state regulations with NHTSA’s standards on C/AVs/HAVs.10 In several workshops held in 2016 covering the 2015 Draft Regulations, the DMV received substantive input from representatives of manufacturers, consumer and public interest groups, the disabled community, local agencies, academic/research institutions, and other stakeholders.11 The DMV and NHTSA share a common objective of seeing C/AVs/HAVs developed, tested, and deployed safely and efficiently on public roads. AAMVA participated in the most recent workshops, in addition to advocates for the disabled, OEMs, auto industry trade associations, consumer advocates, local government representatives, the media, and members of the public (Soublet, 2016). In an effort to draw on the latest technical knowledge, the California DMV has worked closely with the California DOT (Caltrans) and the California Partners for Advanced Transit and 6 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1298. 7https://www.dmv.ca.gov/portal/wcm/connect/d48f347b-8815-458e-9df2- 5ded9f208e9e/adopted_txt.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=d48f347b-8815-458e-9df2-5ded9f208e9e 8 Cal. Regs. §§ 227.46, 227.48. 9Express Terms, https://www.dmv.ca.gov/portal/wcm/connect/ed6f78fe-fe38-4100-b5c2- 1656f555e841/AVExpressTerms.pdf?MOD=AJPERES 10 https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto. 11https://www.dmv.ca.gov/portal/wcm/connect/e12bbed6-f168-4fa3-bc09- 4ca244c56ad0/avworkshopnotice_10192016.pdf?MOD=AJPERES

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 28 Highways (PATH) of the University of California, Institute of Transportation Studies. PATH and Caltrans primarily focus on efforts for cooperative adaptive cruise control, automated truck platooning, and vehicle- assist and automation applications for full-size public transit buses (PATH, n.d.). Commenters were concerned that requiring a human driver would impede the development of the technology and prevent the disabled from enjoying the promise of mobility and independence (PATH, not dated). Some also said that the regulations are ambiguous because they do not establish the standards that the third-party tester will use. Another comment was that the data that companies collect and are required to report could be sensitive trade secrets. A peer review conducted by PATH provided insight into possible future regulatory approaches (PATH, n.d.). On September 30, 2016, after much public input, the California DMV released its “Express Terms” or Revised Draft Deployment Regulations.12 The 2016 Draft is less strict than the former 2015 Draft and paves the way for the increased deployment of driverless vehicles on public roads, including HAVs with no steering wheel, accelerator, or brake pedal. Even though it is not a formal rulemaking, updating the 2015 Draft with HAV language and NHTSA’s newest policy will help California move forward. Less restrictive provisions include13 language which no longer requires a driver behind the wheel of every HAV, allowing for the testing and deployment of vehicles that are not equipped with steering wheels, manual brakes or other devices that would allow a human driver to take control.14 Now that the California DMV is actively adhering to the NHTSA performance and testing standards, instead of possibly developing its own, manufacturers can more easily plan for full deployment in the future. To reflect its close cooperation with NHTSA, the “terms” include the following NHTSA wording for operational design domain (ODD): [ODD] is the specific operating domain(s) in which an automated function or system is designed to properly operate, including but not limited to roadway type, speed range, environmental conditions (weather, daytime/nighttime, etc.), and other domain constraints. (NHTSA, September 2016) Under § 227.04 (d) the manufacturer certifies that testing will be conducted “in accordance with NHTSA’s Vehicle Performance Guidance for Automated Vehicles.”15 The new draft regulations attempt to regulate whether a vehicle can be advertised as “autonomous” or “self- driving” under the DMV’s authority to enforce truth-in-advertising provisions in the California Vehicle Code.16 The draft regulations define “autonomous vehicle” to include only vehicles at SAE Levels 3, 4 and 5.17 Vehicles at these levels can perform some or all driving tasks without active driver control. Another forward-looking provision in California’s Express Terms anticipates end-use consumers hitting the road: 12https://www.dmv.ca.gov/portal/wcm/connect/211897ae-c58a-4f28-a2b7- 03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES, Express Terms, Title 13, Division 1, Chapter 1, Article 3.7 – Autonomous Vehicles, amending current regulations. 13 §227.54. Manufacturer’s Permit to Test Autonomous Vehicles that do not Require a Driver.g)4). 14 §227.54. Manufacturer’s Permit to Test Autonomous Vehicles that do not Require a Driver. (g)(4). 15§227.04. Requirements for a Manufacturer’s Testing Permit. (d), https://www.dmv.ca.gov/portal/wcm/connect/211897ae-c58a- 4f28-a2b7-03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES. 16§227.90. Statements About Autonomous Technology, Authority cited: Sections 1651 and 38750, Vehicle Code. Reference: Sections 11701, 11713, and 38750, Vehicle Code. 17§ 227.02. Definitions, d., https://www.dmv.ca.gov/portal/wcm/connect/211897ae-c58a-4f28-a2b7- 03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 29 (g) “Deployment” means the operation of an autonomous vehicle on public roads by members of the public who are not employees, contractors, or designees of a manufacturer or other testing entity. … (i) “Driver” means the “human” operator of an autonomous vehicle when it is not operating in the autonomous mode.18 California seems reluctant to call a computer the “driver” yet, despite NHTSA’s willingness to accept that idea. However, in anticipation of HAVs 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” (Trucks.com, 2016). In California, stringent rules still govern testing permits. The overall structure of the draft regulations remains the same as the 2015 draft. Manufacturers must still apply for permits before testing or deploying C/AVs/HAVs on public roadways. The permitting process varies in the four possible scenarios: 1. testing an autonomous vehicle with a test driver present; 2. testing a fully driverless vehicle; 3. post-test deployment of autonomous vehicles that have a driver present; or 4. post-test deployment of fully driverless vehicles.19 Permits still require registering the C/AV/HAV with the DMV, completing previously discussed C/AV/HAV testing under controlled conditions, using qualified test drivers who sit in the driver’s seat with the ability to take control of the C/AV/HAV, and a $5 million insurance or surety bond maintained by the manufacturer.20 For post-testing deployment of C/AVs/HAVs, the DMV’s draft regulations also require regular software updates to deployed vehicles.21 This will mean a continuing role for manufacturers after their products have been sold—a role also significant in product liability claims (Walker Smith, 2014). The draft regulations22 clarify that when the autonomous system of a fully driverless vehicle is in control, the manufacturer is responsible for violations of traffic laws: (b) The manufacturer of any autonomous vehicle that is capable of performing all aspects of the dynamic driving task without reliance on the intervention of a driver shall be responsible for the safe operation of the vehicle at all times the vehicle is operating in its ODD, including compliance with all traffic or other laws.23 The possible applicability of truth-in-advertising provisions, discussed above, may also later affect warranty claims in C/AV/HAV accidents. Again, the draft regulations define “autonomous vehicle” to include only vehicles at SAE Levels 3, 4 and 5. Under the draft regulations, vehicles that do not meet this definition, such as vehicles that are equipped only with limited driver assistance or advanced safety features like AEB systems, could not be advertised with the terms “auto-pilot,” “self-driving,” “automated,” or similar terms. For example, Tesla’s “Autopilot” (Model S) mode is not actually autonomous driving technology, but merely “driver assist” (i.e., requiring driver attention at all times). 18 https://www.dmv.ca.gov/portal/wcm/connect/211897ae-c58a-4f28-a2b7- 03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES. 19 Sections 1651 and 38750, Vehicle Code. Reference: Section 38750, Vehicle Code. 20 CA Vehicle Code 38570(A)(5). 21 §227.58. Application for a Permit for Post-Testing Deployment of Autonomous Vehicles on Public Roads., https://www.dmv.ca.gov/portal/wcm/connect/211897ae-c58a-4f28-a2b7- 03cbe213e51d/avexpressterms_93016.pdf?MOD=AJPERES 22 Sept. 30, 2016, Draft Regulations, §227.86. Driver and Manufacturer Responsibility. 23 Sections 1651, and 38750, Vehicle Code. Reference: Section 38750, Vehicle Code.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 30 (Tesla may face a lawsuit from the Texas victim’s insurance company over an accident that occurred in the Model S this year [Kane, 2016].) California C/AV/HAV bills that failed in the past seem to involve HAVs operating without a driver on public roads. Before NHTSA issued guidelines in September 2016, state legislatures had to follow national safety standards created for traditional cars with steering wheels, accelerators, and brake pedals. AB 2866 was introduced in February 2016, but failed in committee on May 11, 2016. AB 2866 authorizes the operation of an HAV, without a driver in the vehicle, not equipped with a brake pedal, accelerator pedal, or steering wheel, on public roads for testing and operation purposes if other requirements are met and the operator of the vehicle is capable of taking immediate control of the vehicle in the event of technology failure or other emergency.24 The bill requires the DMV’s adoption of conforming regulations by July 1, 2018, for these rules to take effect. It also requires submission of the results of testing and operation of these vehicles.25 On November 30, 2016, AB 2682 also failed in committee.26 It requires the California DMV, upon the development of a model state policy on HAVs by NHTSA, to hold public hearings on the model policy and consider, to the extent authorized by other law, conforming DMV regulations to that policy. 2017 California DMV Proposed Amendments After receiving feedback from manufacturers, organizations, consumers, local governments, insurance companies and other stakeholders, the DMV has further clarified in detail its HAV draft regulations. This new regulatory framework may help California’s reputation as an innovative state and promote the development of HAVs in keeping with the relaxed driverless car federal policies and guidelines endorsed by NHTSA. California is currently the strictest of the states with regard to HAV regulations, so the regulatory framework it implements now may be scrutinized as a possible model for various states hoping to regulate the future of HAVs in their states.27 On March 10, 2017, the California DMV issued a proposed set of regulations for AVs. The proposed regulations include updates to the 2014 HAV testing regulations. It is evident from the two workshops previously held and the feedback from industry and the public, that many items needed altering in the 2014 draft regulations.28 The DMV proposes amending Article 3.7 29 related to the testing of AVs (including those with no human driver) and adding Article 3.8 related to the public deployment of AVs. Senate Bill 1298 (Chapter 570; Statutes of 2012)30 enacted Vehicle Code §38750 which requires the DMV to adopt regulations necessary to ensure the safe operation of AVs on public roads, with or without the presence of a driver inside the vehicle. In 2014, the DMV initially adopted regulations for the testing of AVs that required the presence 24 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2866. 25 Id. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2866 26AB 2682, http://www.leginfo.ca.gov/pub/15-16/bill/asm/ab_2651-2700/ab_2682_bill_20160518_amended_sen_v97.pdf. 27 https://www.wired.com/2017/03/californias-finally-ready-truly-driverless-cars/, (“The DMV’s rules are going to shift a big part of the conversation to the federal level,” says Bryant Walker Smith, who studies self-driving vehicles at the University of South Carolina. Federal regulators seem eager to advance autonomy (chiefly for the safety benefits), so what happens on California’s roads may well be replicated across US, and even internationally.) 28 See Initial Statement of Reasons, State of California, DMV, Deployment of Autonomous Vehicles for Public Operations, Webpage: https://www.dmv.ca.gov/portal/wcm/connect/7342a60f-4953-48e4-9372- 51abe905913f/avinitialstatementofreasons_31017.pdf?MOD=AJPERES 29 See Express Terms, Title 13, Division 1, Chapter 1, Article 3.7, Testing of Autonomous Vehicles; https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461-f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 30 SB 1298: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1298

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 31 of a driver inside the vehicle; however, HAV technology has improved since then, necessitating adjustments to existing policy. AVs are now to be defined as SAE Levels 3–531 only in order to avoid confusion with vehicles that use advanced driver assistance systems (ADAS ) but which are “not capable of, singularly or in combination, performing the dynamic driving task on a sustained basis without the constant control or active monitoring of a natural person.” 32 By limiting the HAV regulations to SAE Levels 3–5, California can also control any attempted application to SAE Level 0–2 vehicles already deployed on public roads (e.g., cars equipped with ADAS, such as the Tesla’s models currently in use on the public roads). No Driver Required: “Driverless” Term Now Included In a big departure from previous 2014 testing regulations, the newly proposed regulations do not require the presence of a driver for testing and deployment purposes. In allowing testing of fully “driverless” vehicles, California is recognizing technological progress 33 and is poised to join Michigan 34 and possibly other states in accepting the presence of HAVs on the roadway, at least for testing purposes. Compliance With NHTSA Guidance While the automotive industry still objects to California making NHTSA’s voluntary federal process mandatory,35 the DMV has chosen to keep this provision in its newest, updated draft regulations. On September 20, 2016, NHTSA released the FAVP36 to establish a national framework for the safe testing and deployment of HAVs. NHTSA’s FAVP includes a “Vehicle Performance Guidance for Automated Vehicles” (Guidance) which outlines a 15 point “safety assessment” for the safe design, development and testing and deployment of automated vehicles37 and describes a “safety assessment letter” (documentation) for manufacturers to prove how they are satisfying the requirements of the Guidance. NHTSA has tried to encourage HAV development by not finalizing specific standards or adopting any precise regulations prematurely, yet California may be essentially codifying NHTSA’s rules despite NHTSA’s insistence that they not do so. The Guidance clearly states on page 11, that “this Guidance is not intended for States to codify as legal requirements for the development, design, manufacture, testing, and operation of automated vehicles.” 38 31 Note: Under new CA Manufacturer Responsibility Regulations, level 3 is notably absent. 32 See Art. 3.7, Testing of Autonomous Vehicles, Definitions, § 227.02 (b); also amended to use terminology of “automotive engineering”; see also pg. 4, Initial Statement of Reasons. 33 See Initial Statement of Reasons (Initial Statement), supporting the revised Draft Regulations: the DMV notes that “since the adoption of the current testing regulations, the capabilities of autonomous technology have proceeded to the point where manufacturers have developed systems that are capable of operating without the presence of a driver inside the vehicle.” Therefore the revised draft regulations allow for the “testing of vehicles that do not require the presence of a driver inside the vehicle” and “ensure the testing of such vehicles is conducted on California roads in a safe manner.” 34 See Michigan S.B. 996, 12/9/16 , HAV legislation) 35 https://cei.org/content/cei-comments-california-dmv-autonomous-vehicle-regulations#_ftn4, Due to the voluntary nature of the NHTSA Guidance, CEI stated in its comments to the DMV that the DMV should remove all references to the Safety Assessment Letter from its final testing and deployment rules. 36 https://one.nhtsa.gov/nhtsa/av/av-policy.html?_ga=1.92573533.1944534614.1493156395; https://www.transportation.gov/sites/dot.gov/files/docs/AV%20policy%20guidance%20PDF.pdf 37 https://www.nhtsa.gov/technology-innovation/automated-vehicles 38 National Highway Traffic Safety Administration, Federal Automated Vehicles Policy, U.S. Department of Transportation (Sep. 20, 2016), at 11, available at https://www.nhtsa.gov/av; See Guidance in FAVP, page 11, Sec. 1; https://www.nhtsa.gov/technology- innovation/automated-vehicles

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 32 Under the new California proposed regulations, if a vehicle diverges from a “conventional vehicle design”39 (e.g., exclusion of manual controls, etc.) and is not able to certify to current FMVSS, an approved exemption letter from NHTSA is requested by the California DMV. 40 Unless granted an exception by NHTSA (or as allowed by Federal law), a vehicle cannot be sold with technology that makes inoperative any of the existing federal safety standards adopted by NHTSA (i.e., FMVSS). According to page 2 of the DMV’s Reasons: The proposed regulations require manufacturers to certify that their autonomous vehicles meet FMVSS. For vehicles that diverge from conventional vehicle designs, the department proposes that the manufacturer provide evidence of an approved exemption from NHTSA or an exemption authorized by Federal law. For testing without a driver and deployment of all levels of autonomous vehicles, the proposed regulations require the manufacturer to submit a copy of their 15-point safety assessment letter submitted to NHTSA pursuant to the “Vehicle Performance Guidance for Automated Vehicles” in NHTSA’s FAVP. The manufacturer’s participation in the safety assessment process provides further evidence to the department that the manufacturer has engaged in a robust design, development, and testing process and is collaborating with NHTSA at the federal level on vehicle safety topics.41 In claiming that the copy of the NHTSA letter is “evidence” that the manufacturer has engaged in a “robust design…process,” the California DMV has elevated the letter beyond its voluntary submission to NHTSA (NHTSA, 2016e at page 15). Manufacturers and consumer groups alike are unhappy with the uncertainty about the letter’s requirements and have submitted comments on the lack of Federal standards for HAVs. When the Senate Commerce Committee was working on a bipartisan HAV deployment bill in February, it took testimony from GM, Volvo, Toyota, Lyft and the RAND Center about the lack of traditional rulemaking on the federal government’s part. 42 No Third Party Demo Test Required California requires AV developers to submit to the DMV the same “safety assessment” letter they are required to provide to NHTSA. Some groups, such as Consumer Watchdog, have called this practice “irresponsible” (FixedOpsBuiness, 2017) because then the developer then essentially controls HAV safety determinations. Consumer Watchdog has stated that the DMV’s proposed regulations are fundamentally flawed because they rely on the federal government to set enforceable safety standards for AVs. According to Consumer Watchdog, …as the DMV’s Initial Statement of Reasons notes, NHTSA has not adopted any regulations governing the testing or operation of automated, or self-driving, vehicles on public roads, streets, and highways…. So, there is no federal safety standard specifically governing autonomous technology and NHTSA’s policy amounts to asking automakers voluntarily to please drop a letter in the mail that says, ‘yes, we thought about these issues (FixedoOpsBusiness, 2017). Consumer Watchdog argues that anchoring California’s AV policy to such ephemeral federal policies – actual standards don’t even exist – cannot possibly provide adequate protection for the public. Without FMVSS that apply to AVs, California must enact its own safety standards. The DMV’s original AV regulations put safety first, while still allowing responsible innovation. According to Consumer 39 See p. 2, Initial Statement of Reasons, CA DMV. 40 See p.2 of Reasons, CA DMV. 41 See Initial Statement of Reasons, CA DMV. 42 https://www.recode.net/2017/2/14/14612280/self-driving-car-regulations-house-commerce-hearing, Feb. 14, 2017.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 33 Watchdog, “It is imperative that the Department maintain those high standards, continuing to put public safety first, as it proposes new regulations.” (FixedOpsBusiness, 2017) Previous draft regulations would have required third-party certification and the prerequisite of a testing permit. Under the recent proposed regulations, the state relaxed these requirements. Manufacturers would be allowed to self-certify 43 and to sell AVs regardless of whether a manufacturer had previously held a state testing permit. The DMV concluded that this former third-party idea would not “uniformly determine” 44 the safe operation of all vehicles, and thus the current self-certification permit model has many detailed requirements. 45 The California DMV will require that vehicles meet FMVSS 46 or have an exemption from NHTSA. California will rely on the federal AV policy guidelines issued last September. Compliance with federal law is still required, so any future requirements added at the federal level (by NHTSA) would apply. Testing – Art 3.7 HAV Testing – Financial Responsibility Whether the HAV has a driver or not, manufacturers must provide evidence of their ability to respond to a judgment or judgments for damages for personal injury, death or property damage arising from the operation of autonomous vehicles on public roads in the amount of $5 million in the form of an instrument of insurance issued by an insurer admitted to issue insurance in California; a surety bond issued by an admitted surety insurer or an eligible surplus lines insurer, and not a deposit in lieu of bond; or a certificate of self-insurance.47 Passengers Cannot Pay for Test Rides In an apparent response to Uber (Krompier, 2017) who allowed passengers to ride for free in its HAV test phase in San Francisco in 2016, the new proposed regulations defines “passenger” as “an occupant of a vehicle who has no role in the operation of that vehicle when the autonomous technology is engaged,” and stipulates that “[a] member of the public may ride as a passenger in an autonomous test vehicle if there are no fees charged to the passenger or compensation received by the manufacturer.”48 Operational Design Domain Safety Under “Manufacturer’s Testing Permit,” §227.18 (a) has been amended to clarify manufacturers testing AVs without human drivers (“Driverless” in the regulations) must also apply for AV testing permits. 49 In an effort to use more automotive engineering terminology, the phrase “the real world conditions that the manufacturer intends to subject the vehicle to” has been replaced with “each ODD in which the 43 See Initial Statement, p. 3: The DMV rejected the idea of “requiring manufacturers to have a vehicle demonstration test conducted by an independent third party to assess the vehicles’ capability to perform driving tasks and the submission of a demonstration test report certifying that the vehicles performed as necessary to operate safely on public streets.” 44 Id. P. 3. 45 See § 228.06 (a) (10) Application for a Permit for Post-Testing Deployment of Autonomous Vehicles on Public Roads ; https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461-f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 46 See § 228.06 (a)(7) “the manufacturer shall certify that the autonomous technology meets (FMVSS)” 47 See Requirements for a Manufacturer’s Testing Permit, § 227.04 (c) ; https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f- 454a-a461-f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 48 See § 227.02 (j) Definitions. 49 See p. 6, Statement, “Manufacturer’s Testing Permit”, §227.18. (a)

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 34 manufacturer intends to operate,”50 and the phrase “each ODD” has been added. These changes were necessary because the DMV has added the concept of ODD to the regulations.51 For all test vehicles, the manufacturer shall not test an AV on public roads “unless the manufacturer has tested the autonomous vehicles under controlled conditions that simulate as closely as practicable each ODD in which the manufacturer intends the vehicles to operate on public roads and the manufacturer has reasonably determined that it is safe to operate the vehicles in each ODD.” For HAVs without human drivers, the manufacturer must also inform the DMV “of the intended ODDs of the autonomous vehicle” and agree to provide updates if the ODD’s change.52 Notifying Local Authorities For HAVs without a human driver, the manufacturer wishing to obtain a testing permit must certify that “the local authorities within the jurisdiction where the vehicle will be tested have been notified of the ODD of the vehicles to be tested and the testing has been coordinated with those local authorities.”53 The manufacturer must send to the DMV a copy of the written notifications provided to each local jurisdiction of testing. 54 Liability for Collisions For truly driverless HAVs, the manufacturer wanting a testing permit must certify that “to the extent that the autonomous vehicle is at-fault in any collision, the manufacturer shall assume any and all responsibility for liability associated with the operation of the vehicles on public roads.”55 Reporting of Collisions and Disengagements California is the only state that requires companies to publicly report accidents and “disengagements”; i.e., when a human intervenes with autonomous mode in unsafe situations. Developers have criticized the reporting requirements in the past, especially their public nature, but as a result of these reports, California has been able to provide impressive HAV safety records in its annual reports. For all testing permit vehicles, collisions56 “originating from the operation of the autonomous vehicle on a public road that resulted in the damage of property or in bodily injury or death” must be reported to the DMV within 10 days on form OL 316 (a new form). The OL 316 has many fields to “capture more information related to the conditions under which the collision occurred.”57This section also clarifies it does not relieve “any person from compliance with any other statutory and/or regulatory collision reporting requirements,” possibly referring to regular DMV code requirements. 58 50 See p. 7, Express Terms, § 227.18(b) “manufacturer shall not test [an AV] on public roads unless the manufacturer has tested the autonomous vehicles under controlled conditions that simulate as closely as practicable each Operational Design Domain in which the manufacturer intends the vehicles to operate on public roads and the manufacturer has reasonably determined that it is safe to operate the vehicles in each Operational Design Domain.”; https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461- f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES; See also § 38750 Vehicle Code. 51 See p. 7, Express Terms, “Manufacturer’s Testing Permit”, §227.18. (a); https://www.dmv.ca.gov/portal/wcm/connect/caa2f466- fe0f-454a-a461-f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 52 See Express Terms, § 227.38(d), (specifically for driverless HAVs). 53 See Express Terms, § 227.38(a), (specifically for driverless HAVs, testing permits). 54 See Express Terms, § 227.38(a), (specifically for driverless HAVs, testing permits). 55 See Express Terms, § 227.38(b), (specifically for driverless HAVs, testing permits). 56 § 227.48. The term “accident” has been changed to “collision.” 57 Initial Statement of Reasons, Sec. 227.48. 58 Initial Statement of Reasons, § 227.48.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 35 The new regulations have added reporting requirements for truly “unmanned” vehicles, defining a disengagement as a deactivation of the autonomous mode when a failure of the autonomous technology is detected or when the safe operation of the vehicle requires that the autonomous vehicle test driver disengage the autonomous mode and take immediate manual control of the vehicle, or in the case of driverless vehicles, when the safety of the vehicle, the occupants of the vehicle, or the public requires that the autonomous technology be deactivated.59 Under the new proposed regulations, manufacturers with test permits for both types of AVs (with or without human driver) must retain “data related to the disengagement of the autonomous mode” and must submit an annual report to the DMV by January 1st of each year. The annual report must summarize disengagements for each month,60 including: (A) whether the vehicle is capable of operating without a driver;61 (B) the total number of autonomous mode disengagements62 ; (C) the total number of miles each AV was tested in autonomous mode on public roads; and 63(D) if a human driver had to take over, the period of time elapsed before the driver assumed manual control (i.e. handoff period).64 Remote Operators – Communications Link For truly driverless AVs, the manufacturer must certify that “there is a communication link between the vehicle and the remote operator to provide information on the vehicle’s location and status and allow two- way communication between the remote operator and any passengers”65 and that the manufacturer will “continuously monitor the status of the vehicle and the two-way communication link while the vehicle is being operated without a driver.”66 This requirement may be interesting to privacy advocates, like Consumer Watchdog, in the hearing on April 25, 2017, as the topic of cybersecurity is notably absent here. Art 3.8 – Public Deployment of AVs Defining Deployment Deployment of AVs means “the operation of an autonomous vehicle on public roads by members of the public who are not employees, contractors or designees or a manufacturer or other testing entity.”67 Deployment also includes when a manufacturer “sells, leases or otherwise makes autonomous vehicles available for use outside of a testing program” 68 and the operation of AVs “outside of a testing program.” 59 See Reporting Disengagement of Autonomous Mode, § 227.50(a). 60 See Express Terms, § 227.50 (b)(3). 61 See Express Terms, § 227.50(b) (3) (A). 62 See other required details, § 227.50(b)(3)(B) (i-vi): (the circumstances, testing conditions, location/type of street, driver presence, facts causing the disengagement - such as weather, road surface, construction, emergency or collision, who/what initiated the disengagement, and the type of incident preempted by the transfer of control to the test driver. 63 See Express Terms, § 227.50(b) (3) (C). 64 See Express Terms, § 227.50(b) (3) (D). 65 See Express Terms, Application for a Permit for Post-Testing Deployment of Autonomous Vehicles on Public Roads, § 228.06 (b)(1) 66 See Express Terms, Application for a Permit for Post-Testing Deployment of Autonomous Vehicles on Public Roads, § 228.06 (c) (1) (A). 67 See Express Terms, Definitions, § 228.02 (c). 68 See Express Terms, Definitions, § 228.02 (c) (1).

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 36 California also proposed a change to the state’s current regulations in that the state would no longer require driverless AVs to have conventional manual controls such as steering wheels and pedals, drafting the the application to deploy an AV on the public streets to refer to such driverless vehicles as follows: “(3) Any vehicle that is not equipped with manual controls, such as a steering wheel, brake pedal, and accelerator pedal, complies with all applicable [FMVSS], or the manufacturer provides evidence of an exemption that has been approved by [NHTSA].”69 Certifying Operational Design Domain for Public Deployment In its application for a public deployment permit, the manufacturer “shall identify in the application the ODD in which the subject autonomous vehicles are designed to operate and certify that the vehicles are designed to be incapable of operating in the autonomous mode in areas outside of the disclosed ODD.” 70 The manufacturer shall also identify any commonly occurring or restricted conditions including but not limited to: snow, fog, black ice, wet road surfaces, construction zones, and geofencing by location or road type, under which the vehicles are either designed to be incapable of operating or unable to operate reliably in the autonomous mode and certify that the vehicles are designed to be incapable of operating in autonomous mode under those conditions.71 Certification of Data Recorder Under the new proposed regulations, manufacturers must certify in the public deployment permit application that the AVs are equipped with an autonomous technology data recorder that captures and stores autonomous technology sensor data for all vehicle functions that are controlled by the autonomous technology at least 30 seconds before and at least 5 seconds after, or until the vehicle comes to a complete stop after a collision, whichever is later, with another vehicle, person or other object while the vehicle is operating in autonomous mode.72 This stored data must be “in a read only format” and “capable of being accessed and retrieved by a commercially available tool.”73 It is possible that the privacy concerns regarding this regulation will be similar to those raised for EDRs. Certification of Safety, DMV Code, Mapping Updates The manufacturer seeking an AVs public deployment must certify that it “has conducted test and validation methods and is satisfied, based on the results of the tests and validations, that the vehicles are safe for deployment on public roads in California.”74 The manufacturer must also certify the AV technology “is designed to detect and respond to roadway situations in compliance with all provisions of the California Vehicle Code and local regulation applicable to the operation of motor vehicles, except 69 See Express Terms, § 228.06(b) (3). 70 See Express Terms, § 228.06(a) (1). (How will this be enforced?) 71 See Express Terms, § 228.06 (a) (2). 72 See Express Terms, § 228.06(a) (5). 73 Id.; how does this compare to regular vehicle EDR rules? 74 See Express Terms, § 228.06(a) (10).

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 37 when necessary for the safety of the vehicle’s occupants and/or other road users.”75 The manufacturer shall also certify “that, when necessary, it will make available updates pertaining to the autonomous technology at least annually or by the effective date of any changes in the California Vehicle Code and local regulation” as applicable to the performance of the dynamic driving task in the vehicle’s ODD.76 The manufacturer shall also certify “it will make available updates pertaining to location and mapping information utilized or referenced for the purpose of vehicle location and operation on a continual basis consistent with changes to the physical environment captured by the maps.” 77 The manufacturer must also provide a “certification that the vehicles have self-diagnostic capabilities that meet current industry best practices78 for detecting and responding to cyber-attacks, unauthorized intrusions, and false or spurious messages or vehicle control commands.”79 Questions may arise as to whether manufacturer self- certification and mention of best practices are enough to protect HAVs from hacking once they are deployed. Consumer Education Plan The manufacturer must submit with its deployment permit application “a consumer or end user education plan, which covers the ODD of the vehicle”80 and also provide “identification of any and all restrictions of the autonomous technology in the autonomous vehicles and an explanation of the educational materials that will be provided to end users.”81 The manufacturer must also provide a copy of “the sections of the vehicle owner’s manual, or an equivalent vehicle operator instruction guide” that provide information on “the mechanism to engage and disengage the autonomous technology showing the mechanism is easily accessible to the vehicle operator,”82 “the visual indicator inside the vehicle’s cabin to indicate when the autonomous technology is engaged,” 83and “the operator and manufacturer’s responsibilities with respect to the operation of the autonomous vehicles.”84 Test Data Required with Application With its deployment permit application, a manufacturer must submit the “test data demonstrating that the manufacturer’s autonomous technology has been tested in the ODD in which the subject autonomous vehicles are designed to operate.”85 This data shall include “all locations where the vehicle has been tested,”86 and the total number of vehicle test miles driven on public roads in autonomous mode, separately reported for each [ODD] and breaking out California testing from non-California testing. 87 The manufacturer must also provide a description of “the testing methods used to validate the 75 See Express Terms, § 228.06(a) (8). 76 See Express Terms, § 228.06(a) (8) (A). 77 See Express Terms, § 228.06(a) (8) (B). 78 Industry best practices for cyber-safety have been published by the NHTSA (National Highway Transportation Safety Administration), https://www.nhtsa.gov/press-releases/us-dot-issues-federal-guidance-automotive-industry-improving-motor-vehicle, and Auto-ISAC (Automotive Information Sharing and Analysis Center), https://www.automotiveisac.com/best-practices/ 79 See Express Terms, § 228.06(a)(9), https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461- f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 80 See Express Terms, § 228.06(c) (1). 81 See Express Terms, § 228.06(c) (1) (A). 82 See Express Terms, § 228.06(c)(1)(B)(i). 83 See Express Terms, § 228.06(c)(1)(B)(ii). 84 See Express Terms, § 228.06(c)(1)(B)(iii). 85 Express Terms, § 228.06(a)(7). 86 Express Terms, § 228.06(a)(7). 87 Express Terms, § 228.06(a)(7)(A).

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 38 performance of the subject autonomous vehicles”88 and “the general types of safety-critical incidents encountered during testing and the measures taken to remediate the causes of these incidents.” 89 Further, the “data shall also include the number of collisions that resulted in damage of property or bodily injury or death and a full description of the causes of collisions and measures taken to remediate the causes.”90 Information Privacy Measures The manufacturer shall either provide a written disclosure to the driver or occupants of the vehicle (if no driver is required) that “describes the information collected by the autonomous technology that is not necessary for the safe operation of the vehicle”91 and “obtain the written approval of the operator of an autonomous vehicle”92 to collect the information, or “anonymize the information that is not necessary for the safe operation of the vehicle.”93 A manufacturer “shall not deny use of an autonomous vehicle to any person on the basis that they do not provide the written approval” for collection of information.94 Manufacturer Responsibility For SAE Level 4 and 5 vehicles, the manufacturer “shall be responsible for the safe operation of the vehicle at all times the vehicle is operating in its ODD, including compliance with all traffic laws.”95 When it comes to determining fault or liability in an HAV collision, there is a problem with access. Investigating fault may require access to an HAV’s proprietary “machine learning” data and algorithms. This is technology manufacturers wish to protect. Legislators and agencies need to evaluate carefully whether mandating access to proprietary data is fair and/or necessary. If this problem is solved now among the stakeholders, it can save everyone time and money later on. If responsibility is legislated to be mainly on the manufacturers and the federal government, manufacturers may avoid the insecurity of a state-by-state-legal liability patchwork. Advertising Rules for “Autonomous” Vehicles The rule provides that “no manufacturer or its agents shall represent in any advertising for the sale or lease of a vehicle that a vehicle is autonomous” unless the vehicle “meets the definition of an autonomous vehicle specified in Vehicle Code section 38750 and section 227.02(b) of Article 3.7” (i.e. SAE Levels 3– 5)96 and “the vehicle was manufactured by a manufacturer licensed pursuant to Vehicle Code section 11701 also holding a valid autonomous vehicle manufacturer’s permit issued pursuant to this Article at the time of the vehicle’s manufacture.” 97 In attempting to avoid the “Tesla problem,”98 the DMV not only uses the term “autonomous,” it also adds, “The use of terms to describe the performance of a vehicle that 88 Express Terms, § 228.06(a)(7(B). 89 Express Terms, § 228.06(a)(7)(C). 90 Express Terms, § 228.06(a)(7)(D). 91 Express Terms, 228.24(a)(1). 92 Express Terms, 228.24(b). 93 Express Terms, 228.24(a)(1)(2). 94 Express Terms, 228.24(c). 95 § 228.28(b); Note: Level 3 was excluded in the blanket manufacturer responsibility. See § 228.28(a) for SAE Level 3 vehicle apportioning of responsibilities upon driver and manufacturer. The responsibility depends heavily on operating within the vehicle’s “approved operational design domain”). 96 Express Terms, § 228.30 (a)(1), https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461- f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 97 Express Terms, § 228.30 (a)(2), https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461- f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 98 Tesla has called its level 2 / ADAS system “autopilot” – leading some to incorrectly believe its vehicle was an autonomous vehicle. See https://electrek.co/2016/10/03/tesla-autopilot-not-autonomous-dmv-rule/

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 39 is known, or by the exercise of reasonable care should be known, will likely induce a reasonably prudent person to believe a vehicle is autonomous.”99 Many sources have noted that there is a difference between “autonomous” and “automated” vehicles.100 The adoption of the different SAE automation levels into popular parlance should help the public recognize that human-driven automated vehicles with automated features, such as the Tesla “Autopilot”, are not necessarily “autonomous” vehicles. In February 2018 California’s Office of Administrative Law approved driverless testing regulations. The Califirornia DMV posted that it would begin approving applications after April 2, 2018 (California DMV, 2018). California DMV’s website also posted application requirements for the driverless autonomous vehicle tester program including the required application forms. The definitions section of the testing of autonomous vehicles at Article 3.7 under Title 13, Division 1, Chapter 1, includes specific definnitions of autonomous mode, autonomous test vehicle, autonomous test driver, convention mode, dynamic driving task, minimal risk condition, remote operator and ODD. As seen at the federal level, and in many states the new regulations are linked to SAE’s taxonomy under J3016 (California DMV, 2018 (a)). Section 227.041 authorizes manufacturers to conduct testing of autonomous vehicles on public roads. Insurance proof must be kept in the test vehicles at all time. The vehicle must also be identified in writing to the department under Section 227.16 with make, model, year, VIN and license plate and state of issuance. Section 227.18 details that a driverless vehicle cannot be tested on a public road without a permit issued by the department to conduct testing. Manufacturers shall not test autonomous vehicles (which including driverless autonomous vehicles) on public roads unless they have tested them under controlled conditions that simulated, as closely as practicable all ODDs where they intends to operte these the vehicles. The manufacturer’s testing permit for a driverless vehicle is valid for two years (§227.23) and costs $3,600 for processing (§227.22). Under Section 227.38, the manufacturer must certify that local authorities where the vehicle will be tested have been provided with written notification that contains: (1) The ODD of the test vehicles (2) A list of all public roads in the jurisdiction where the vehicles will be tested. (3) The date that testing will begin. (4) The days and times that testing will be conducted on public roads. (5) The number of vehicles to be tested and the types of vehicles to be tested. (6) Contact information, including name, telephone number, address, and email for contact person for the manufacturer conducting the testing. The application must also state that the manufacturer also complies with elements including: • Ensuring a communication link between the vehicle and remote operator to provide two-way communication and location information. • Ensure that communication between the remote operator and passengers occurs if a vehicle failure occurs and would endanger the safety of passengers or other road users. Descriptions of how monitoring by the manufacturer of thsese link will be undertaken. Confirmation that the communication link will be continuously monitored. 99 Express Terms, § 228.30 (b), https://www.dmv.ca.gov/portal/wcm/connect/caa2f466-fe0f-454a-a461- f5d7a079de49/avexpressterms_31017.pdf?MOD=AJPERES 100 Glancy, p. 629-630, http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1013&context=mjlst

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 40 • Ensure there is a process to display or communicate to a vehicle owner or operator information if the vehicle is involved in a collision. This information must be provided to a law enforcement officer for any reason. (§227.38 (b (1-3)). • Certifiation by the manaufacturer that the vehicle is capable of operating without the presence of a driver and meets SAE’s J3016 taxonomy descriptions for level 4 or 5 operating system ((§227.38 (c)). • Complies with all FMVSS. (§227.38 (d)). • Manufacturer provides a copy of a law enforcement interaction plan (§227.38 (e)). • Manufacture maintains a training program for its remote operators (§227.38 (f)). Under Section 227.42, a testing permit can be revoked or suspended. There is a mechanism to appeal this within the regulations. All collisions must be reported under Section 227.48. This also includes disengagement of autonomous mode under §227.50. Vehicles must be licensed and titled and transfer of title can only be conducted by manufacturers under §227.54. California also authorized the deployment of autonomous vehicles within this rulemaking. Under new Modified Express Terms within Title 13, Division 1, Chapter 1 a new Article 3.8 Deployment of Autonomous Vehicles is also added to the regulations (California DMV 2018 (a) at page 20). Manufacturers cannot deploy an autonomous vehicle unless it submits, and receives approval for, an application for a permit to deploy autonomous vehicles on public streets. The permit application is on form OL 321 and costs $3,275 (§228.06 (a) (4)). Manufacturers shall certify in their application that the autonomous vehicles are equipped with an autonomous technology data recorder that captures and stores autonomous technology sensor data for all vehicle functions, that are controlled by the autonomous technology, for at least 30 seconds before a collision with another vehicle, person, or other object while the vehicle is operating in autonomous mode. The data captured and stored by the autonomous technology data recorder, in a read only format, must be able to be easily accessed and retrieved by a commercially available tool (§228.06 (a) (6)). At section 228.06 (a) (8) manufacturers must certify they meets all FMVSS, and under (§228.06 (a) (9)) manufacturers must certify that they can detect and respond to roadway situations in compliance with California’s Vehicle Code and any local regulations that are applicable to the dynamic driving task in the vehicle’s ODD, except when it may be necessary to enhance the safety or the vehicle’s occupants or other road users. Section (§228.06 (a) (10)) requires manufacturers to certify that the autonomous vehicles meet appropriate and applicable current industry standards to help defend against, detect, and respond to cyber- attacks, unauthorized intrusions, or false vehicle control commands. Under subsection 11 manufacturers must certify they have conducted tests and validation methods and are satisfied, based on the results of tests/validatoin, that their vehicles are safe for deployment on public roads. Section (§228.06 (b) also requires that manufacturers to also certify that: (1) There is a communication link between the vehicle and the remote operator to provide information on the vehicle’s location and status and allow two-way communication between the remote operator and any passengers, if applicable, should the vehicle experience a failure that would endanger the safety of the vehicle’s passengers or other road users while operating without a driver. (2) Their is ability to display or transfer vehicle owner or operator information as specified in Vehicle Code section 16025 if the vehicle is involved in a crash, collision, or accident or, if information is to be provided to a law enforcement officer for any reason

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 41 (3) If a vehicle is not equipped with manual controls for the completing the dynamic driving task, that it complies with all applicable FMVSS and has an exemption approved by NHTSA. Colorado Colorado’s SB 213, effective on August 1, 2017, provided definitions for “automated driving system,” “dynamic driving task,” and “human operator.” The Act notes that the use of motor vehicles with Level 0 through 3 automation as defined by SAE J3016 is legal under Colorado law with a human driver in the vehicle, and are not addressed by the Act. “Automated driving system” is defined as hardware and software that are collectively capable, without intervention or supervision by a human operator, of performing all aspects of the dynamic driving tasks for a vehicle on a part-time or full-time basis, described under J3016 as Levels 4 and 5. “Dynamic driving task” is defined to include: I. Operational aspects, including steering, braking, accelerating, and monitoring the vehicle and the roadway; II. Tactical aspects, including responding to events, determining when to change lanes, turning, using signals, and other related actions. Dynamic driving task does not include strategic aspects of driving, including determining destinations or way points. The Act allows a person to use an ADS to drive or control a function of a motor vehicle if the system is capable of complying with federal and state laws that apply to the function that the system is operating. If the vehicle cannot comply with every facet of these laws, it must be submitted for approval via vehicle testing. The department is required to submit a report on the testing of the ADSs by September 1, 2018. The Act preempts state agencies and local jurisdictions from adopting or enforcing a policy, rule, or ordinance that sets standards for an ADS different from standards set for a human driver. Connecticut Connecticut, in House Resolution 6344, (Connecticut, 2015), simply requires that “the general statutes be amended to allow the use of automated vehicles for testing purposes, and direct[s] the [DMV] to promulgate regulations concerning the use of such vehicles.” In SB 260, which was enacted on June 27, 2017, Connecticut defined the terms “fully autonomous vehicle,” “automated driving system,” and “operator.” The bill requires the development of a pilot program for up to four municipalities for the testing of fully autonomous vehicles on public roads in those municipalities. It specifies the requirements for testing, that include having an operator seated in the driver’s seat and providing proof of insurance of at least $5 million. A task force is to be established to study autonomous vehicles. The study must include an evaluation of NHTSA’s standards regarding state responsibility for regulating AVs; an evaluation of laws, legislation, and regulations in other states and provide recommendations on how Connecticut should legislate and regulate AVs; and an evaluation of the pilot program.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 42 District of Columbia The District of Columbia enacted the Autonomous Vehicle Act of 2012, which expressly allows the operation of C/AVs on District roadways (D.C. Code §§ 50-2351 to -2354). The District requires that a vehicle must have a manual override and a driver in the driver’s seat ready to take over, and operate in compliance with the District’s regulations and other normal traffic laws (§50-2351). At the time of this writing, the DMV was promulgating rules to implement the law, but no data could be found on the DMV’s website. The District’s DMV also issued guidelines in June 2014 requiring that EDRs be completely separate from all other data systems, that they must provide data in a read-only format when requested, and that they must retain all data for at least 3 years following a collision (District of Columbia DMV, 2014). Florida Legislation On April 16, 2012, Florida became the second state to allow the testing of C/AVs/HAVs on public roads. Florida House Bill (HB) 1207101 declared legislative intent to encourage the safe development, testing and operation of C/AVs/HAVs on public roads and declared that the state does not prohibit or specifically regulate the testing or operation of autonomous technology in motor vehicles on public roads.102 This very broad regulation initially created much interest in testing projects in the state. This bill103 also defines “autonomous vehicle” and “autonomous technology.”104 It expressly states that a person shall be deemed to be the operator of an autonomous vehicle operating in autonomous mode when the person causes the vehicle’s autonomous technology to engage, regardless of whether the person is physically present in the vehicle while the vehicle is operating in autonomous mode.105 This language fails to explicitly open the door to future SAE Levels 4 or 5 vehicles, in which an automated system engages the autonomous technology. HB 1207 authorizes a person who possesses a valid driver’s license to operate an HAV, and authorizes the operation of HAVs by certain persons for testing purposes under certain conditions, requiring an instrument of insurance, surety bond, or self- insurance prior to the testing. The bill addresses liability following conversion of a vehicle to an HAV.106 The bill also directs the Department of Highway Safety and Motor Vehicles to prepare a report recommending additional legislative or regulatory action that may be required for the safe testing and operation of vehicles equipped with autonomous technology, to be submitted no later than February 12, 2014.107 While Florida did not initially require a driver’s license endorsement or specific permit to operate an HAV, subsequent legislation passed in 2016’s HB 7027 eliminated the requirement that the vehicle operation must be solely for testing purposes and also eliminated the requirement that a driver be present in the vehicle. 101 Also from 2012, FLA. HB 599: The relevant portions of this bill are identical to the substitute version of FLA. HB 1207. 102 FLA. HB 1207, 2012. 103 Florida House of Representatives. “House Bill 1207.” 2012 Legislature, http://www.flsenate.gov/Session/Bill/2012/1207/BillText/er/PDF 104Fla. Stat. 316.003, http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0300- 0399/0316/Sections/0316.003.html 105 FLA. HB 1207, Section 3.(2) created Section 316.85, Florida Statutes. 106 FLA. HB 1207, Sec.5.2. 107FLA. HB 1207, Sec.5.3. see also Florida Autonomous Vehicle Report, 2014, http://www.flhsmv.gov/html/HSMVAutonomousVehicleReport2014.pdf.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 43 Florida adopts similar provisions of law to those seen in Nevada (discussed in a later section), but exerts considerably less control over manufacturers wishing to test C/AVs/HAVs on public roadways and places no geographical restrictions on that testing. In Florida, when a testing entity presents insurance to the Department [of Motor Vehicles] and pays the title fees, the Department will brand the vehicle title ‘autonomous’ and ‘autonomous vehicle’ will print on the registration certificate.108 Thus, although there are certain standards required for HAVs tested or deployed in the state, including a $5 million proof of insurance and vehicle certification, the DMV does not require an application or otherwise regulate the testing entity. The DMV also does not have the authority to deny a request to test HAVs in the state. On April 4, 2016, Florida HB 7027 was enacted as law. It permits the operation HAVs on public roads by individuals with a valid driver’s license.109 In allowing the testing of HAVs on public roads by anyone holding a valid driver’s license, a driver need not be designated by a manufacturer as a test driver. This bill also eliminates the requirement that the vehicle be only operated for testing purposes and removes a number of provisions related to vehicle operation for testing purposes. It also specifically eliminates the requirement that a driver be present in the vehicle, which opens up operation to SAE Level 4 and 5 cars. The bill requires that HAVs meet applicable FMVSS and regulations.110 This forward-looking bill will allow automobile manufacturers and on-demand transportation companies to fully test HAVs at various levels of autonomy in a variety of conditions. Enacted on April 4, 2016, Florida HB 7061 defines autonomous technology and driver-assistive truck platooning technology. It requires a study on the use and safe operation of driver-assistive truck platooning technology and allows for a pilot project upon conclusion of the study.111 The bill amends s. 316.003, F.S., removing the definition of the term “autonomous technology” from the definition for the term “autonomous vehicle,” where it was embedded. The bill amends s. 316.003, F.S., providing a stand- alone definition for the term “autonomous technology.” The language used to define each term remains the same.112 Florida,113 like Michigan, also passed a law permitting texting while operating a C/AV/HAV in autonomous mode. More detailed legal definitions of truck platooning may be needed in anticipation of NHTSA’S new policies on V2V technology. Notwithstanding the need for such changes, in February of 2016, Peloton, a technology company focused on connected truck platooning planned to demonstrate a pilot truck platooning program that, as a consequence of introduction of legislation in Florida, would suspend the minimum following distance of 300 feet without substituting a new length (Transport Topics, 2016). One form of V2V114 technology is known as driver assistive truck platooning (DATP), which allows trucks to communicate with each other and to travel as close as 30 feet apart with automatic acceleration and braking. 108 FLA Dept. of Highway Safety and Motor Vehicles, 2014 109 FLA. HB 7027, 2015, https://www.flsenate.gov/Session/Bill/2016/7027/BillText/er/PDF. 110 FLA. HB 7027, as 319.145. 111 CS/CS/HB 7061, https://www.flsenate.gov/Session/Bill/2016/7061/BillText/er/PDF 112 Staff Analysis, FLA. HB 7061, https://www.flsenate.gov/Session/Bill/2016/7061/Analyses/h7061a.TEDAS.PDF. 113 Fla. Stat. § 316.305(b)7, https://www.flsenate.gov/Laws/Statutes/2013/316.305 114 See the U.S. Department of Transportation Fact Sheet on Vehicle To-Vehicle Communication Technology. On file in the House Transportation& Ports Subcommittee.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 44 In order to allow for V2V truck platoons, Florida following-distance and passing traffic laws had to be legally clarified for their inclusion.115 Florida HB 7061 amends s. 316.003, F.S., defining ‘driver-assistive truck platooning’ as vehicle automation technology that integrates sensor arrays, wireless communications, vehicle controls, and specialized software to synchronize acceleration and braking between up to two truck tractor- semitrailer combinations, while leaving each vehicle’s steering control systems command in the control of the vehicle’s driver.116 Florida, by amending 316.303, F.S., authorized active displays on screen while the AV/HAV is in motion.117 The bill’s language exempts vehicles operating in autonomous mode or with driver-assistive truck platooning technology from a prohibition against television-type receiving equipment being visible from the driver’s seat.118 Georgia HB 472—enacted on May 9, 2017— provides for an exception for following requirements for vehicles following in a procession when speed of the non-leading, participating vehicles are coordinated automatically. It also repealed some conflicting laws. HB 472 specifies that the law prohibiting following too closely does not apply to the non-leading vehicle in a coordinated platoon. It defines coordinated platoon as a group of motor vehicles traveling in the same lane utilizing vehicle-to-vehicle communication technology to automatically coordinate the movement of the vehicles. Louisiana In 2016, Louisiana defined autonomous technology for purposes of highway regulation provision in HB 1143 (passed June 2, 2016). Autonomous technology is defined as technology installed on a motor vehicle that has the capability to drive the vehicle on which the technology is installed in high- or full-automation mode, without any supervision by a human operator, with specific driving mode performance by the automated driving system of all aspects of the dynamic driving task that can be managed by a human driver, including the ability to automatically bring the motor vehicle into a minimal-risk condition in the event of a critical vehicle or system failure, or other emergency event (HB 1143, 2016). HB 51 (2017 regular session) was proposed to regulate and provides for the operation of AVs, including definitions, insurance requirements, registration/title, accident reporting, and additional/related matters and rules. The bill was left pending in committee. The bill created definitions for ADS, dynamic driving task, fully autonomous vehicle, human driver, minimal risk condition (which is defined as a low-risk operating mode in which a fully autonomous vehicle operating without a human driver achieves a reasonably safe state, such as bringing the vehicle to a complete stop upon experiencing a failure of the vehicle’s ADS that renders the vehicle unable to preform the entire dynamic driving task), on-demand autonomous vehicle network, and ODD. The bill 115 https://www.flsenate.gov/Session/Bill/2016/7061/Analyses/h7061a.TEDAS.PDF. 116 https://www.flsenate.gov/Session/Bill/2016/7061/Analyses/h7061a.TEDAS.PDF. 117 FLA. HB 7061, as Fla.Stat. 316.303, “unless the vehicle is equipped with the autonomous technology, as defined in s. 16.003(2), and is being operated in autonomous mode, as provided in s. 316.85(2).” 118 FLA. HB 7061, 2016.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 45 specified the conditions under which fully autonomous vehicles may be operated on public roads including: 1. if the failure of the automated riving systems occurs that renders the system unable to perform the entire dynamic driving task relevant to its intended operation design domain, the vehicle will achieve a minimal risk condition …. 2. the AV must be capable of complying with traffic and motor laws of Louisiana, and 3. the AV must bear the manufacturer’s certification label indicating that it was in compliance with federal law at the time of its manufacture. The bill also set insurance requirements for AVS to be insured in compliance with current statues and regulations (R.S. 32:861 and R.S. 32:900) and a person must submit proof of financial responsibility for this to the Department of Public Safety and Office of Motor Vehicles. Any accident with an AV must be reported in accordance with 32:871. A person may operate an on-demand AV network, and provide transportation for multiple passengers. Additionally, registration and title of an AV must be completed in accordance with general registration and title laws. Michigan Legislation Michigan is another state that has been at the cutting edge of C/AV/HAV regulation. Michigan has been motivated to promote the deployment of HAVs due to various ongoing pilot tests. The University of Michigan tests HAVs at MCity, the world’s first controlled vehicle test site designed to research and refine C/AV/HAV technology (University of Michigan, MCity website, n.d.). According to the website, new open C/AVs/HAVs based at MCity will advance driverless research. Governor Snyder signed four major bills into law in 2016. SB 169 allowed automakers to test AVs as long as a human was in the car.119 In addition, Michigan120 also permits texting while operating a C/AV/HAV in autonomous mode (Michigan Compiled Laws § 257.602b [4]). Prior to 2017, Michigan law allowed HAVs to only be driven on Michigan roadways for the purpose of road-testing (i.e., “solely to transport or test automated technology”).121 However, under the 2016 Senate AV bills that were signed into law, driverless cars are now able to be driven for any of the following purposes: personal use; road testing; as part of a SAVE program or “on-demand automated vehicle network;” and as part of a platoon. For example, under SB 995-998, the list of eligible drivers will expand to include people driving for personal use,122 university researchers who are conducting road-testing, and123 Michigan DOT employees who are conducting road-testing.124 This means HAVs, or driverless cars, will operate without a human driver or any human present in the car. Under existing law, even driverless cars that are being road-tested must have an “individual present” who “has the ability to monitor the vehicle’s performance and, if necessary, immediately take control of 119 MICH. S.B. 169 (2013) Allows for testing but with a human in the driver’s seat. Defines “automated technology,” “automated vehicle,” “automated mode,” expressly permits testing of automated vehicles by certain parties under certain conditions, defines operator, addresses liability of the original manufacturer of a vehicle on which a third party has installed an automated system, directs state DOT with Secretary of State to submit report by Feb. 1, 2016. 120 Mich Comp. Laws § 257.602b(4) 121 MICH. COMP. LAWS 257.244(3)) 122 MICH. S.B. 995, page 10, lines 24-25, amendment to 257.665 123 Id., MICH. S.B. 955 at 10 124 Id. MICH. S.B. 955 at 10

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 46 the vehicle’s movements.”125 However, under the changes described above to SB 995-998, an “automated motor vehicle” can be “operated without any control or monitoring by a human operator.”126 The artificial intelligence (AI) or computer will now be considered the “driver,” as specified in the following passage from that SB: 127 When engaged, an automated driving system allowing for operation without a human operator shall be considered the driver or operator of a vehicle for purposes of determining conformance to any applicable traffic or motor vehicle laws and shall be deemed to satisfy electronically all physical acts required by a driver or operator of the vehicle.128 SB 995 defines an “on-demand automated motor vehicle network” as, “a digital network or software application used to connect passengers to automated motor vehicles for transportation between locations chosen by the passenger when the automated motor vehicle is operated without any control or monitoring by a human operator.”129 This allows auto manufacturers to enter the app-based ridesharing world with HAVs. SB 995 defines a “platoon” as a “group of individual motor vehicles that are traveling in a unified manner at electronically coordinated speeds.”130 To be able to operate AVs as part of a platoon, one must file “a plan for general platoon operations” with and obtain approval from the Michigan State Police and the Michigan DOT.131 SB 996 covers the SAVE Project.132 The SAVE Project is an “initiative that authorizes eligible motor vehicle manufacturers to make available to the public on-demand automated vehicle networks”133 Program vehicles in the SAVE fleet must have an “automated driving system,” “automatic crash notification technology” and a “data recording system” that keeps track of the AV’s “status” and the vehicle’s speed, direction, and location before a crash. Administrators of the SAVE Project “… shall maintain incident reports.”134 Liability in SB 996 requires that, “For each SAVE project in which it participates, during the time that an ADS is in control of a vehicle in the participating fleet, a motor vehicle manufacturer shall assume liability for each incident in which the ADS is at fault.”135 It should be noted that SBs 995–997 do not follow the recommendations put forth in NHTSA’s 2016 AV guidance document in two crucial areas: establishing the minimum amount of insurance coverage required for road-testing C/AVs/HAVs, and determining when manufacturers of driverless cars will be liable for car accidents caused by a C/AV/HAV they produced. For example, SB 996 does provide that “a motor vehicle manufacturer shall assume liability for each incident in which the automated driving system is at fault,” subject to the state’s existing insurance code — but only for SAVE projects.136 SBs 995–997 also do not change current Michigan laws on liability for road-testing self-driving vehicles. All that a manufacturer must have in the way of insurance coverage is the same minimum liability that all 125 MICH. COMP. LAWS 257.665(2)(b). 126 MICH. S.B. 995 at 10. 127 MICH. S.B. 995, at 10-11. 128 Id. 129 Concurred MICH. S.B. 995, page 4, lines 13-19. 130 MICH. S.B. 995 at? 131 MICH. S.B. 995, Sec. 40.c. 132 http://www.legislature.mi.gov/documents/2015-2016/billintroduced/Senate/htm/2016-SIB-0996.htm. 133 MICH. S.B. 995, at 5, ln.1-4. 134 MICH. S.B. 996 135 MICH. S.B. 996, pg. 4. 136 MICH. S.B. 996, sec. 665.B.4.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 47 Michigan cars must have: $20,000 in personal injury liability and $10,000 in property damage liability.137 Legislators, potential victims, and manufacturers need to take notice of this oversight (Gurston, 2016). SB 997 was presented to the Governor for signature on November 30, 2016. SB 927, which passed in the Senate on November 9, 2016, and is currently in the House Committee on Communications and Technology, prohibits hacking, but in overly broad language. The bill provides that a person who “intentionally access[es] or cause[s] access to be made to an electronic system of a motor vehicle to willfully alter the motor vehicle” is “guilty of a felony punishable by imprisonment for life or any term of years.” 138 SB 928 amends the code of criminal procedure to specify that “access[ing] electronic systems of motor vehicles to obtain data [!] or control of vehicle” is a class A felony punishable by a statutory maximum of life imprisonment. 139 SB 928 is currently referred to the House Committee on Communications and Technology (November 9, 2016). According to Bryant Walker Smith, assistant professor in the School of Law and (by courtesy) in the School of Engineering at the University of South Carolina, A literal interpretation would make criminals out of manufacturers that send over-the-air updates to their vehicles, vehicle owners who accept such updates, repair shops that run diagnostics checks while fixing vehicles, owners who install new stereos, automated driving startups that modify production vehicles, researchers who test the safety of vehicle electronics, and many others. (Walker Smith, September 2016) Considering that many manufacturers claim to “own” the software in their vehicles, this criminal provision needs to be “limited to instances in which a person acts in willful or wanton disregard for the safety of others.” (Walker Smith, September 2016) The new SB 998 does protect mechanics from civil liability: the bill provides that “a motor vehicle mechanic or a motor vehicle repair facility that repairs an automated motor vehicle according to specifications from the manufacturer of the automated motor vehicle is not liable in a product liability action for damages resulting from the repairs.”140 SB 998 was presented to the Governor for signature on November 30, 2016. SB 663, passed in 2013,141 protects OEMs from civil liability for damages142 caused by third-party- modified143 C/AVs/HAVs, unless the defect from which the damages resulted was present in the vehicle when it was manufactured.144 SB 633 and its companion bills (SB 169 and 251) are now Public Acts 231 (formerly SB 169) and 251 (formerly SB 663). The original personal injury laws145 co-exist with the new laws and may need agencies to step in to clarify crash liability further down the road. 137 MICH. COMP. LAWS 257.665(1); 500.3101; 500.3009(1). See also, Ch. 31 of the Michigan Insurance Code of 1956, 1956 PA 218, MICH. COMP. LAWS 500.3101 to 500.3179. 138 MICH. S.B. 927 sec. 4.2. 139MICH. S.B. 928, http://www.legislature.mi.gov/documents/2015-2016/billintroduced/Senate/pdf/2016-SIB-0928.pdf 140 MICHIGAN S.B. 998. Sec. 3 141 SB 663, Enacted and chaptered on Dec. 20, 2013. 142 SB 169; PA 231 of 2013; MCL 257.817; SB 663; PA 251 of 2013; MCL 600.2949b(1)). 143 Perhaps referring to automated mode conversions, regular cars, after-market, perhaps similar to Comma One kit, by George Hotz., http://hothardware.com/news/geohot-makes-his-autonomous-driving-tech-open-source 144 See MCL 257.817 and MCL 600.2949b(1) and (2). 145 SB 169; PA 231 of 2013; MCL 257.817; SB 663; PA 251 of 2013; MCL 600.2949b(1

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 48 Nebraska Nebraska’s LB 627 (which was left pending in committee) would have authorized the operation of AVs and harmonized with previous motor vehicle laws. The bill provided a definition for autonomous motor vehicle, and autonomous technology. A person would be considered the operator of an AV when they cause the technology to engage. A person may operate an AV when they have a valid operator’s license. The AV would be required to meet all federal and state regulations on safety, and have a safety alert system that alerts the operator to technology failure, at which point the operator must take control of the AV or bring the AV to a stop in the event that they cannot take control. The operator must also have a means of visually indicating when the AV is in autonomous mode. The bill further provided that prohibitions against using handheld written communications would not apply to a person operating an AV. Nevada Legislation Nevada was another early leader in creating C/AV/HAV legislation. It became the first state to authorize any operation of C/AVs/HAVs in 2011 with AB 511, which authorizes operation of C/AVs/HAVs and a driver’s license endorsement for operators of C/AVs/HAVs. AB 511 defined “autonomous vehicle” and directed the state DMV to adopt rules for license endorsement and for operation, including insurance,146 safety standards,147 and testing.148 Google was the first company to receive a self-driving car license in Nevada in 2012 (Slosson, 2012). In 2013, Nevada lawmakers passed follow-up legislation SB 313, which requires a C/AV/HAV being tested to meet “certain conditions relating to a human operator.”149 Section 3 further specifies that a “human operator” must be “capable of taking over immediate manual control of the autonomous vehicle in the event of a failure of the autonomous technology or other emergency.”150 The bill distinguishes between “human operator” and driving by a non-human, defining “autonomous technology” to mean “technology which is installed on a motor vehicle and which has the capability to drive the motor vehicle without the active control or monitoring of a human operator.”151 However, specific clarification of HAVs without humans in the car (such as SAE Level 4 and 5 vehicles) was lacking. Nevada, within SB 313, specified some SAE Level 1, 2 and 3 technologies as not being truly “autonomous,” noting that “autonomous technology” does not include an active safety system or a system for driver assistance, including, without limitation, a system to provide electronic blind spot detection, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless any such system, alone or in combination with any other system, enables the vehicle on which the system is installed to be driven without the active control or monitoring of a human operator.152 146 Insurance coverage of $5 million, NRS 482A.060 Testing autonomous vehicle: Requirement for insurance or bond. 147 Referring to federal safety standards SB 313, Sec. 4. 2013. 148 AB 511, June 17, 2011, as enrolled, https://www.leg.state.nv.us/App/NELIS/REL/76th2011/Bill/4029/Text. 149 NEV. SB 313, June 2, 2013, as enrolled, https://www.leg.state.nv.us/App/NELIS/REL/77th2013/Bill/1122/Text. 150 Nev. SB 313, Sec. 3., 2013. 151 Nev. SB 313, Sec. 2., 2013. 152 Nev. SB 313, 2013.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 49 Testing licenses in Nevada are limited to specific geographic zones, although these may be enlarged based on private testing in similar conditions.153 General requirements that span across all C/AV/HAV testing in Nevada include having two persons physically in the vehicle while testing, including one person in the driver’s seat who is able to take control.154 The bill also requires C/AVs/HAVs to have proof of insurance155 and prohibits the vehicles from being registered, tested or operated on a highway unless they meet certain conditions. It also establishes immunity from liability for manufacturers of a vehicle that has been converted to a C/AV/HAV by a third party.156 Further, the bill excludes driver assistance systems that are not truly AV systems.157 The bill also directs the state DMV to adopt rules for licensing and operation, including insurance, safety standards, and testing.158 A companion piece of legislation, SB 140 (2011), which prohibits the use of cell phones or other handheld wireless devices while driving, permits the use of cell phones and other devices for individuals in a legally operated C/AV/HAV since these individuals are deemed not to be operating a motor vehicle under state law.159 Nevada testing regulations for C/AVs/HAVs require a special driver’s license certification and license plates.160 Nevada, has only briefly addressed private individuals as operators of C/AVs/HAVs, stating that “[w]hen autonomous vehicles are eventually made available for public use, motorists will be required to obtain a special driver license endorsement and the DMV will issue green license plates for the vehicles.”161 The regulations, first adopted in 2012 and later revised in 2013, require applicants to submit proof to the DMV that a minimum of 10,000 miles of driving in autonomous mode has been accomplished prior to applying. Applicants must also submit a summary of statistics before being granted a license to test on public roads.162 After testing is successful, the deployment of a C/AV/HAV is allowed in Nevada only after issuance of a “certificate of compliance,” issued by the manufacturer or a registered sales facility.163 The certificate can be issued only if the vehicle meets requirements set forth in Nevada regulations. Nevada C/AVs/HAVs must have a switch to disengage autonomous mode164 as well as a system to safely alert the operator to take control of the vehicle if there is a technical failure.165 153 Nev. Rev. State. § 482A.120. 154 Nev. SB 313, Sec. 2, 2013 155 Sec. 2.5 changed the amount required to $5 million of insurance. Nev. SB 313, 2013. 156 Nev. SB 313, Sec. 5, 2013. 157 See NEV. SB 313, Legislative Counsel Digest Note, regarding NRS 482A.100, which authorizes DMV of Nevada to promulgate regulations regarding Autonomous vehicles. 158 Nevada Electronic Legislative Information System. “Assembly Bill No. 511.” 159 SB 140, June 17, 2011,as enrolled, https://www.leg.state.nv.us/App/NELIS/REL/76th2011/Bill/3926/Text 160 Nev. Admin. Code §§ 482A.040, .050, .110 (2014) 161 Need footnote xxx 162 http://www.dmvnv.com/pdfforms/obl326.pdf 163Chapter 482A - Autonomous Vehicles, http://www.leg.state.nv.us/NRS/NRS-482A.html, NAC 482A.190 Requirements for issuance of certificate of compliance; contents. (NRS 482A.100). 164 Chapter 482A - AUTONOMOUS VEHICLES, http://www.leg.state.nv.us/NRS/NRS-482A.html, sec. 110. 165 Chapter 482A - Autonomous Vehicles, http://www.leg.state.nv.us/NRS/NRS-482A.html. sec. 110.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 50 Nevada also requires that EDRs capture read-only data 30 seconds before a collision in C/AVs/HAVs, and preserve the data for 3 years after extraction.166 Further, the state requires that EDRs be completely separate from other data systems, that they must provide data in a read-only format when requested, and must retain all data for at least 3 years following a collision167 The First Loophole in Nevada Laws Although Nevada was an early leader in C/AV/HAV legislation, there have been problems. On May 16, 2016, Otto, an autonomous trucking company, released a video of its truck driving on a Nevada highway without a driver in the front seat. (Otto Launch Website, 2016). Otto claimed there was no driver at the time (Harris, 2016a), but then later claimed that the driver was in the back seat (Harris, 2016b). The fact that Otto never applied for the special license to test the vehicle, never provided the $5 million bond required, and failed to have two people sitting in the front seats, did not prevent the test drive. (Nevada Revised Statutes, 2015). Otto would seem to have broken Nevada law. However, Nevada failed to provide penalties for not complying with C/AV/HAV testing laws. Among other requirements, Otto should have provided proof of data capturing systems, switches to engage and disengage the autonomous technology, and 10,000 miles of truck testing prior to that test. Although Otto broke the law, there was nothing the state could do without having the authorization to enforce penalties. Otto, which has since been bought by Uber, acquired a license in September 2016 (Harris, 2016b) to operate the first autonomous technology certification facility (ATCF) in Nevada. Its Nevada ATCF is a testing facility that can test its own Uber and Otto vehicles for safety standards in order to certify them (as opposed to the state taking on this role). Third-party C/AV/HAV certification has become a hot topic among OEMs. In Nevada, once a C/AV/HAV has been safety certified, it may be sold publically. This means that once Uber licenses its own HAVs at the ATCF, and they are then ready for public use and sale. Whether Nevada intended this is unclear, but no in-state testing is required in Nevada before a C/AV/HAV public deployment once these legal certification requirements are met. New Jersey New Jersey’s A3745 (which was reported out of Assembly Comm., with amendments on second reading in December 2016, but was not authorized) would have permitted testing and use of AV’s under certain circumstances. The bill provides definitions for autonomous mode, autonomous technology, autonomous vehicle, commission, manufacturer, operator, and sensors. The bill provided that an AV may be operated on public roads for testing purposes provided that 1. it is being operated solely by persons designated by the manufacturer, 2. the operator is inside the vehicle, capable of taking control, and 3. the manufacturer obtains insurance in the amount of $5 million. Before public road operation, the manufacturer of an AV must apply for authorization by the commission. The application must contain certification that the AV may be disengaged from the operator, may visually indicated when it is in autonomous mode and contain a safety alert system of technology failure, at which point the operator will be required to take action to control or stop the vehicle. The manufacturer must provide certification that the AV has been tested on private property. The AV must also have the 166 Nev. Reg. Chapter 482A - Autonomous Vehicles, NAC 482A.110, License: Application; affirmation; requirements of applicant; fee; insurance; bond; validity; renewal. (NRS 482A.100) 167 District of Columbia DMV, 2014

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 51 capability of recording and storing sensor data before and after a collision. Lastly the manufacturer must provide a disclosure to a purchaser of an AV of what personal information is collected by the technology of the AV. North Dakota HB 1065168, passed March 23, 2015, directed agencies to prepare a report, to be conducted in the 2015– 2016 interim period, that could include research into the safety implications of C/AVs/HAVs and recommend any additional legislative or regulatory action. The legislative management team were directed to report findings and recommendations along with any legislation required to implement the recommendations to the 65th legislative assembly in January 2017. “Automated vehicle” was defined using the SAE Level 5 – Full Automation terms, where the unconditional, full-time performance of all aspects of the dynamic driving task is accomplished by an ADS. In 2017, HB 1202169 was passed which will require the North Dakota department of transportation to study the use of vehicles equipped with AVs and the data issues associated with those vehicles. In additional, the study will include a review of current laws dealing with licensing, registration, insurance, data ownership and use, and inspection and how they should apply to vehicles with ADSs. In 2017 HB 1202, which was enacted on April 13, 2017, authorizes for a Department of Transportation Study under which the North Dakota DOT shall collaborate with the AV technology industry to study the use of, and data collected by, AVs on state highways. The North Dakota DOT must review current laws of licensing, registration, insurance, and data ownership to be applied to AV use. North Dakota’s DOT would report this study to the 66th legislative assembly of North Dakota. Oklahoma Oklahoma’s SB 202 (which was left pending in committee in February 2017) provides for the Department of Public Safety to adopt regulations relating to autonomous vehicles. The bill would add a new section of law in Oklahoma States at Section 12-103 of Title 47. The act defines autonomous vehicles as a motor vehicle that uses AI sensors and global system coordinates to drive itself without the active intervention of a human operator. It established that the Department of Public Safety would adopt regulations regarding operation of autonomous vehicles on the highway. These regulations include setting the minimum safety standards for AVs, as well as the requirements for operation and insurance, and providing for testing of AVs. South Carolina South Carolina’s HB 3289, enacted on May 31, 2017, relates to the distance that must be maintained between vehicles traveling along a highway, and provides that this section does not apply to the operator of any non-leading vehicle traveling in a procession of vehicles if the speed of each vehicle is automatically coordinated. The Act revised the term “driver” to “operator” in regard to these vehicles. At section (b) it notes that “the operator of a truck or motor vehicle that is drawing another vehicle traveling upon a roadway outside of a business or residence district and which is following another truck or motor vehicle drawing another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle 168 HB 2065. 2015. http://www.legis.nd.gov/assembly/64-2015/documents/15-0167-03000.pdf 169 HB 1202. 2017. http://www.legis.nd.gov/assembly/65-2017/documents/17-0711-04000.pdf

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 52 may enter and occupy such space without danger, except that this shall not prevent a truck or motor vehicle drawing another vehicle from overtaking and passing any vehicle or combination of vehicles.” For motor vehicles operated upon roadway outside of a business or residence district in a caravan or motorcade—whether or not towing other vehicles—shall be operated as to allow sufficient space between each vehicle or combination of vehicles to enable any other vehicle to enter and occupy such space without danger. The Act does not apply to the operator of any non-leading commercial motor vehicle subject to federal motor carrier safety regulations and traveling in a series of commercial vehicles using cooperative adaptive cruise control or any other automated driving technology. Tennessee Tennessee, in SB 0598170, passed April 24, 2015, prohibited local governments from banning the use of autonomous technology. SB 2333171, passed in May 2016, allowed motor vehicles to be operated without an integrated display during autonomous testing. In April 2016, SB 1561172 established a certification program for manufacturers of C/AVs/HAVs, which must be completed prior to initiating testing. SB 676173, enacted on April 24, 2017, permits the operation of platoons on the states streets and highways after the person has provided notification to the departments of transportation and safety. Tennessee’s enacted and enrolled SB 1561 on April 27, 2016 at Pub.Ch 927 that established certification program through its department of safety for manufacturers of AVs before such vehicles may be tested, operated, or sold within the state. Within the act the state also created a per mile tax structure for AVs (with a “use tax” that is in addition to the traditional gas tax). The Act distinguishes between a non- operator-required autonomous vehicle (NORAV) and an operator-required autonomous vehicle (ORAV). NORAVs are defined as autonomous vehicles that may have operational controls for a human operator, including a steering wheel, accelerator, or brake, but do not require human operators to be present in the vehicle during vehicle operation. Two special license requirements for operators of NORAVs appropriate to the class of vehicle based on weight rating or number of passengers are set up. An ORAV is defined as an autonomous vehicle equipped with operational controls for a human operator, including steering wheel, accelerator, and brake, and requires a human operator to be present in the vehicle for vehicle operation. Tennessee’s also enrolled and chaptered SB 2333, on March 22, 2016. This allows a motor vehicle to be equipped with an integrated electronic display visible to the operator while the motor vehicle’s autonomous technology is engaged. In May 2017 Tennessee enacted SB 151, which moved the state beyond the existing statute enacted in 2016. SB 151 establishes requirements for AVs to operate on public roads and highways. A brief review of the mark up process, showcases the complexity states are facing in creating legislationfor HAVs. It defines an ADS, and authorizes motor vehicle manufacturers to commence a SAVE project. SAVE is an initiative by a manufacturer that makes ADS-operated vehicles available to the public for operation on the public roads and highways as determined by the manufacturer. According to SB 151, a SAVE project also includes making an on-demand ADS-operated vehicle network available to the public.174 The Act establishes the following procedures for manufacturers to operate ADS-operated vehicles. [Note: in the 170 SB 598. 2015. http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB0598&GA=109 171 SB 2333. 2016. http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB2333&GA=109 172 http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB1561&GA=109 173 SB 676. 2017. https://openstates.org/tn/bills/110/SB676/ 174 This bill was obviously crafted with input from transportation network companies and the major car manufacturers who are looking to bring AV fleets into major metro areas in the next 3 to 4 years.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 53 following list, asterisks denote subsections later amended by Tennessee’s SB 676, as discussed later in this section.] 1) * Only motor vehicle manufacturers are eligible to participate in a SAVE project, and each manufacturer is responsible for the safe operation of its participating fleet. The manufacturer must submit a letter to the department of revenue that includes the geographical areas in which the fleet will operate and a certification that: (a) The vehicles in the fleet are owned or controlled by the manufacturer and are equipped with an ADS, automatic crash notification technology, and a data recording system that has the capability of recording the ADS’s status and other vehicle attributes, including speed, direction, and location, during a specified time period before an accident; (b) The fleet complies with all applicable state and federal laws; and (c) Vehicles in the fleet are capable of being operated in compliance with applicable traffic and motor vehicle laws of this state; 2) * A manufacturer must maintain incident records and provide periodic summaries related to the safety of the fleet to the department of revenue, the transportation and safety committee of the senate, the transportation committee of the house of representatives, and the National Highway Traffic Safety Administration (NHTSA); 3) * Prior to commencement and during the operation of a SAVE project, the manufacturer must make a privacy statement publicly available that discloses its data- handling practices in connection with the fleet; 4) While the ADS is in control of the vehicle, the manufacturer will assume liability for incidents where the ADS is at fault. A manufacturer is immune from any liability for damages from any modification made to an ADS-operated vehicle or an ADS by another person without the manufacturer’s consent; and 5) The department of revenue may charge the manufacturer a fee for the operation of a SAVE project, but the fee must not exceed an amount necessary to implement this bill. Under this Act, it is an offense for any person to knowingly operate a motor vehicle on Tennessee public roads or highways without a human driver in the driver’s seat of the vehicle and without satisfying the requirements of the Act. A violation will be a Class A misdemeanor. The Act prohibits the following persons from operating an ADS-operated vehicle: 1. Any person who operates/has operated an ADS-operated vehicle on a public road or highway without satisfying the eligibility requirements of the applicable jurisdiction; and 2. Any person who was cited or found by law enforcement, a court, a state agency, or other applicable governing body to have violated a statute or regulation requiring prior notification or authorization to operate a vehicle equipped with an ADS. The Act prohibits political subdivisions, from banning or regulating the use of an ADS-operated vehicle or SAVE project that is operating under the Act’s authority and otherwise complies with all laws of the political subdivision by ordinance, resolution, or any other means,. The Act revised various laws regarding motor vehicles to reflect the existence of ADS’s, such as child seat belt laws and accident- reporting laws. On May 4, 2017, the Tennessee Senate adopted SB 676, which made amendments to SB 151 sub-sections one through three (highlighted with asterisks [*] in the earlier text detailing SB 151) and a fourth amendment regarding preemption of local control of ADS. Amendment number one removed the requirements regarding the commencement of a SAVE project and all SAVE-project related provisions and instead provides that an ADS-operated vehicle may drive or

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 54 operate on Tennessee streets and highways with the ADS engaged without a human driver physically present in the vehicle if the vehicle meets the following conditions: 1. Unless an exemption has been granted under applicable federal or state law, the vehicle is capable of being operated in compliance with applicable provisions of Tennessee’s motor vehicle safety and traffic, and has been, at the time it was manufactured, certified by the manufacturer as being in compliance with applicable FMVSS; 2. In the event of a failure of the ADS that renders that system unable to perform the entire dynamic driving task relevant to its intended ODD, the vehicle is capable of achieving a minimal risk condition; 3. Is registered, and if registered in Tennessee, the vehicle is identified on the registration as an ADS-operated vehicle; and 4. The manufacturer that owns the vehicle maintains primary automobile liability insurance providing at least $5 million for death, bodily injury, and property damage; or the non- manufacturer owner maintains primary automobile liability insurance providing at least $50,000 for death or bodily injury, per person; $100,000 for death or bodily injury, per incident; and $30,000 for property damage. This amendment also: 1. Removes references to ADS’s having automatic crash notification technology and specifies, for purposes of this state’s seat belt laws, that a passenger or human operator required to be restrained by a safety belt will be solely responsible for the passenger’s or human operator’s compliance with such requirement; and 2. Adds that liability for accidents involving an ADS-operated vehicle will be determined in accordance with product liability law, common law, or other applicable federal or state law. When the ADS is fully engaged, operated reasonably and in compliance with manufacturer instructions and warnings, the ADS will be considered the driver or operator of the motor vehicle for purposes of determining: (a) Liability of the vehicle owner or lessee for alleged personal injury, death, or property damage in an incident involving the ADS-operated vehicle; and (b) Liability for non-conformance to applicable traffic or motor vehicle laws; and 3. Requires that no later than February 1, 2021, the commissioner of safety and the commissioner of commerce and insurance submit a report to the transportation and safety committee of the senate and the transportation committee of the house. The report must make recommendations with appropriate rationale as to whether the insurance and bonding coverages and coverage amount requirements of this bill should be increased, decreased, extended, or otherwise amended. Amendment number 2 rewrote SB 151’s requirement that a manufacturer owner of an ADS-operated vehicle maintain primary automobile liability insurance providing at least $5 million for death, bodily injury, and property damage; and that a non-manufacturer owner maintain primary automobile liability insurance providing at least $50,000 for death or bodily injury, per person; $100,000 for death or bodily injury, per incident; and $30,000 for property damage. This amendment instead requires that such vehicles be: 1. Covered by a single-limit primary automobile liability insurance policy that provides at least $5 million for death, bodily injury, and property damage and that satisfies the requirements of the law governing uninsured motor vehicle coverage; 2. Covered by a surety bond executed and filed with the commissioner of safety in the amount of $5 million for death, bodily injury, and property damage; or

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 55 3. Self-insured for at least $5 million for death, bodily injury, and property damage, by a person certified to be a self-insurer by the commissioner of safety. This amendment will expire on July 1, 2022, unless re-enacted, extended, or amended prior to such date. The amendment states that it is the legislative intent that any such proposed legislation to re-enact, extend, or amend be referred to the transportation and safety and transportation committees of the Tennessee house and senate. The amendment requires that the Commissioners of Safety and Commerce and Insurance submit a joint report to the transportation and safety and transportation committees of the house and senate no later than February 1, 2021. The Commissioner’s Joint Report is to make recommendations that shall include: • the appropriate rationale for reenactment, extension, or amendment and any proposed legislation thereto, • whether the insurance and bonding coverages and coverage amount requirements of this amendment should be increased, decreased, extended, or otherwise amended. Amendment 3 rewrote SB 151’s requirements regarding primary automobile liability insurance coverage of ADS-operated vehicles and requires vehicles are covered by primary automobile liability insurance in at least $5 million per incident for death, bodily injury, and property damage, and the automobile liability insurance satisfies the requirements of the law governing uninsured motor vehicle coverage. Again, this provision will expire on July 1, 2021. This amendment also changed the dates for the report required in amendment two from February 1, 2021 to February 1, 2020, which aligns this with the date of the Commissioners’ Joint Report. A fourth amendment extends this bill’s prohibition on political subdivisions, by ordinance, resolution, or any other means, banning or regulating the use of an ADS-operated vehicle to include a motor vehicle operated at any level of autonomous technology. It specifies that for motor vehicles operated at any other level of autonomous technology, the motor vehicle and driver will be held to the same laws as conventionally operated motor vehicles, including the financial responsibility requirements, unless an exemption is specifically set out for a vehicle operated with any level of autonomy. On May 5, 2017 the House substituted SB 151 for House Bill 381. It adopted amendment number four, and passed SB 151 as amended. Amendment number four incorporated amendments one and three, and amendment two was rewritten by Senate amendment number three. The SAVE project in the final enrolled bill was also made manufacturer-specific and has a network initiated by the manufacturer (§55-54-102). In April 2017 Tennessee also enacted SB 676, which permits the operation of a platoon on streets and highways in the state after the person provides notification to the department of transportation and the department of safety. Vehicles are not caravan; and operator controls the lead vehicle. Platoons are defined as a group of individual motor vehicles that are traveling in a unified manner at electronically coordinated speeds.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 56 Texas Legislation In the 85th Texas Legislature in 2017, two bills, one enacted, and one on the governor’s desk, began the entrance of Texas into the realm of states with statutes regarding C/AVs/HAVs. SB 2205175, which was sent to the governor for signature, regulates the operation of automated motor vehiclesAVs. The act precludes political subdivisions or state agencies from imposing a franchise or other regulation related to the operation of an AV or ADS. The Act does not authorize any of the state’s transportation agencies, or law enforcement members with any rule making powers, but rather 176sets out a series of definitions177. “Automated 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 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 on which an ADS is installed. • “Entire dynamic driving task” is defined as the operational aspects (steering, braking, accelerating, and monitoring the vehicle and the roadway) and tactical aspects (responding to events, determining when to change lanes, turning, using signals, and other related actions) of operating a vehicle. However, it does not include strategic aspects, including 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. The subchapter and the department (DMV) govern exclusively unless otherwise indicated. The major items governed exclusively include AVs, including any commercial use or operation of AVs, and ADSs.178 The act sets out duties for an operator when the ADS installed on a motor vehicle is engaged. Under this section, the owner of the ADS is considered to be the operator of this vehicle solely for the purpose of assessing compliance with applicable traffic or motor vehicle laws, regardless of whether the person is physically present in the vehicle while the vehicle is operating. The ADS is considered to be licensed to operate the vehicle, when it is engaged. A licensed human operator, notwithstanding any other law, is not required to operate the motor vehicle if the installed ADS is engaged. The automated vehicle is authorized to operate in the state when it is engaged, without a human operator being physically present in the vehicle. However, the automated vehicle, cannot operate on a highway in this state when it is engaged in automated mode unless the vehicle is: 1. capable of operating in compliance with applicable traffic and motor vehicle laws of this state, subject to this subchapter; 175 SB 2205, 2017. http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB2205 176 SB, 2205, Sec. 545.452 (b). 177 SB 2205, Sec 545.451 178 SB2205, Sec 545.452 (a)

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 57 2. equipped with a recording device (as defined by current code) installed by the manufacturer of the automated motor vehicle or ADS; 3. equipped with an ADS in compliance with applicable federal law and FMVSS; 4. registered and titled in accordance with the laws of this state; and 5. covered by motor vehicle liability coverage or self-insurance in an amount equal to the amount of coverage that is required under the laws of this state. The Act sets out that the duties required of the owner or operator after an incident involving the AV occurs shall comply with existing code. For vehicle classification, the Act states that an owner may identify the vehicle to the DMV as having an ADS, or as an automated motor vehicle.179 This section may also need amendment, as DMVs and state public safety providers may need to know the vehicle is automated for reasons of traffic safety regulations, if the licensing entity needs to provide data to law enforcement for purposes of determining the status of the vehicle after an incident, or if a criminal activity takes place. Under the Act, after an incident occurs “a request to intervene” is defined as the notification by a vehicle to the human operator that the operator should promptly begin or resume performance of the entire dynamic driving task. This section is extremely unclear, as the Act authorizes the movement of an AV without a human being present in the vehicle, so if the operator is not present, the terms “promptly begin or resume performance” will need to be defined for a vehicle without a human inside it. Finally, the Act concludes that: • A motor vehicle equipped with hardware and software capable of engaging in the entire dynamic driving task with the expectation that a human operator will respond appropriately to a request to intervene subject to the various sections of this Act; and • Nothing as added by this Act, shall be construed to affect, alter, or amend the right to operate a motor vehicle equipped with hardware and software capable of performing the entire dynamic driving task with the expectation that a human operator will respond appropriately to a request to intervene. HB 1791180, which took immediate effect, regulates the use of connected braking systems to maintain distance between vehicles. Section 545.062 of the Transportation Code is amended by adding Subsection (d), which states, “An operator of a vehicle equipped with a connected braking system that is following another vehicle equipped with that system may be assisted by the system to maintain an assured clear distance or sufficient space as required by this section.” “Connected braking system” is defined as a system by which the braking of one vehicle is electronically coordinated with the braking system of a following vehicle. As with SB 2205, this act provides no rule making powers to any transportation or public safety agency in the state. 179 SB 2205, Sec 545.456 Vehicle Classification for owner defined by Section 502.001 (31) 180 HB 1791, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=HB1791

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 58 Utah In 2015 Utah passed HB 373, signed by the governor on March 27, 2015, which added in at Utah Code 41-6a-711 regading following distance from another vehicle authority to conduct a CV testing program by Utah’s Department of Transportation.181 The subsection exempted connected vehicles from the two second following distance, if they were in a conneted vehicle testing program that used networked wireless communication among vehicles, infrastructure or communication devices that were approved by the State DOT witin the Deparment of Public Safety. The State DOT is required to report any results to an interim committee no later than October 30th of any year when a testing program is conducted.182 Follwing on from the authorization to conduct a CV testing program Utah, passed HB 280 in May 2016, which authorized authorized a HAV study.183 The bill specifies that each agency of the state “with regulatory authority impacting autonomous vehicle technology testing shall facilitate and encourage the responsible testing and operation of autonomous vehicle technology within the state.” The bill authorizes the departments of Public Safety, Motor Vehicles, Transportation and Technology Services to contract and partner with groups for testing C/AVs/HAVs in the state. The bill directs that the Department of Public Safety, in consultation with other state agencies, including the DMV and the DOT, shall study, prepare a report, and make recommendations regarding the best practices for regulation of AV technology on Utah highways.184 The study was to include… • evaluation of standards and best practices suggested by the [NHTSA] and [AAMVA]; • evaluation of appropriate safety features and standards for [AVs] in the unique weather and traffic conditions of Utah; evaluation of regulatory strategies and schemes implemented by other states to address [AVs], including various levels of vehicle automation; • evaluation of federal standards addressing [AVs]; and • recommendations on how the state should address advances in [AV] technology through legislation and regulation.185 The ensuing report was released in October 2016 (UDOT, 2016). The report noted that Utah has several strengths that could facilitate opportunities for testing of CV technology and that this may be a potential area to foster economic development; testing could also generate firsthand insight into the needs and wants of private industry in relation to policy creation and development. The report suggested that Utah could leverage and build upon the following advantages: • Nearly 90 percent of Utah’s traffic signals are already on a centralized system for operation and synchronization. This type of centralization is key to effective connected [AV] functionality. • Utah has invested for more than 10 years in the installation of a fiber optic backbone in highway right of way. This will help enable rapid implementation of connected vehicle communications statewide. • With the youngest median age in the country, Utah’s demographics lend well to providing a market that is likely to be accepting to disruptive technology. • The growing technology industry in Utah is developing and expanding a talent pool that may be attractive to manufacturers. 181 HB 373, at https://le.utah.gov/~2015/bills/static/HB0373.html 182 41-6a-711(3). 183 HB 280, https://le.utah.gov/~2016/bills/static/HB0280.html. 184 HB 280, Se 41-26-102 (3)(a) 185 HB 280, HB 280, Se 41-26-102 (3)(a) (v)

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 59 • Utah has mapped its roadway infrastructure using LiDAR technology and is currently implementing 3D design and 3D construction on several projects. Our state is utilizing technologies that will be foundational for successful connected vehicle adoption. Further report findings upon reviewing Utah’s code and definitions are provided in Figure 5. Utah Code and Definitions The State of Utah has long-standing case law pertaining to the definition of physical control of a vehicle. In cases such as Lopez v. Schwendiman (1986) and Garcia v. Schwendiman (1982), there has been a precedent for holding impaired drivers accountable to the law even when they are simply seated behind the wheel of a parked car. There are various references in Utah Code to drivers and the physical control of motor vehicles. The following provisions are relevant to the subsequent discussions about policy issues: • 53-3-102.14a – “drive” is defined as “to operate or be in physical control of a motor vehicle upon a highway.” • 52-2-102.15a – “driver” is defined as “any person who drives, or is in actual physical control of a motor vehicle in any location open to the general public for purposes of vehicular traffic.” • 41-6a-102 (40) – “operator” is defined as a person who is actually in physical control of a vehicle. • 53-3-104.3 – (Driver License) Division has authority to “license motor vehicle drivers.” • 53-3-202.1a – “A person may not drive a motor vehicle or an autocycle on a highway in this state unless the person is granted the privilege to operate a motor vehicle by being licensed as a driver.” Legislators may consider examining definitions of “drive” and “operator” and existing statutory references to these terms. This foundational language has a strong influence on the expediency and ease of HAV adoption in our state. Figure 5. 2016 Findings on Utah code. Source: Utah, DOT 2016 p. 11 Analysis of determined that the licensing process required updating, specifically with regard to driver education and training for C/AVs/HAVs. The report also found that areas where regulations would need to be identified and addressed mirrored NHTSA’s September 2016 recommendations. The report’s recommendations and conclusions found that while it may be premature to implement new policies or adopt new legislation right now, a committee or council with sub-committees would be an effective way to conduct research and maintain ongoing dialogue in this area. If a committee were to be created, issues to be addressed would include vehicle safety, data security, infrastructure preparation, training and licensing, vehicle registration, enforcement, regional and national consistency. Virginia On June 2, 2015, Virginia Governor Terry McAuliffe announced the designation of more than 70 miles of interstates and arterial roads in the Northern Virginia region as the “Virginia Automated Corridors,” which will allow developers of C/AVs/HAVs the opportunity to test their technologies. The project is a joint effort of the Virginia DOT and DMV in partnership with the Virginia Tech Transportation Institute (VTTI), Transurban, and the navigation and mapping company HERE (Governor of Virginia, 2015).

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 60 The initiative will streamline the use of Virginia roads and state-of-the-art test facilities for C/AV/HAV testing, certification, and migration towards deployment. The VTTI Center for Automated Vehicle Systems (VTTI-CAVS) will offer C/AV/HAV developers the opportunity to test their technologies on Virginia roads covering more than 70 miles of interstates and arterials in the Northern Virginia region, including Interstates 66, 495, and 95, as well as state routes 29 and 50. The corridors also include two test-track environments—the Virginia Smart Road, located on-site at VTTI, and the Virginia International Raceway. The Virginia Automated Corridors integrate multiple resources, including the following: • Access to dedicated high-occupancy toll lanes managed by Transurban along Interstates 495 and 95 • High-definition mapping capabilities, real-time traffic and incidents, intelligent routing, and location cloud technology supported by HERE, which has worked with major automakers on previous C/AV/HAV projects • Pavement markings maintained by the Virginia DOT for completeness and retro-reflectivity • Accurate localization via high-precision global navigation satellite systems • CV capabilities enabled by DSRC and cellular technology, along with access to sophisticated, unobtrusive data acquisition systems • Operations at higher speeds along a test track that features complex curves Unlike California, Nevada, and Florida, C/AV/HAV companies testing in Virginia are not required to obtain a bond. Licensing and insurance will be provided through the Commonwealth. VTTI will facilitate Institutional Review Board approval and certification for safe human research involvement (VTTI, 2015). In addition to creating the VTTI-CAVS, on April 6, 2016, Virginia passed bill 454186, which allows for vehicles to be equipped with television and video/moving images if the equipment is factory-installed and has an interlock device that disables the equipment when the operator is performing a “driving task,” as defined by the bill. The term “driven” has been replaced by the delineation of the operator’s “driving tasks.” Current law allows equipment with a visual display of a television broadcast or signal if the equipment’s interlock disables it when the vehicle is driven. The newer bill changes “television broadcast or signal” to “moving image.” Thus, the newer bill would allow the viewing of a visual display while the vehicle is being operated autonomously, where the “driving task” means “all of the real-time functions required to operate a vehicle in on-road traffic, including steering, turning, lane keeping and lane changing, accelerating, and decelerating.”.187 This bill also provides that vehicles used by universities for vehicle technology research are not required to have special government plates188. (This bill is identical to SB 286.)189 Washington 17-02, 2017) that set up an autonomous vehicle work group that would begin to address autonomous vehicle testing and enabling pilot programs within the state. The working group is to have at least one representative from the Governor’s office, and from other state agencies. Pilot programs are authorized and can be conducted in partnership with entities developing autonomous vehicle technology equipment. For pilot programs conducting testing/operation of autonomous vehicles with human operators physically present in the vehicle shall comply with the following requirements (original text): 186 Virginia HB 454, https://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+HB454 187 Virginia Code Ch. 707 §§ 46.2-1077 [A][8] 188 (Virginia Code, Ch. 707 §§ 46.2-750) 189 (See also http://lis.virginia.gov/cgi-bin/legp604.exe?ses=161&typ=bil&val=hb454&submit=GO)

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 61 • Vehicles shall be operated or monitored only by a trained employee, contractor, or other person authorized by the entity developing autonomous technology. • Vehicles shall be monitored, and an operator must have the ability to direct the vehicle’s movement if assistance is required. • Individuals able to exercise operational control of an autonomous vehicle during operation shall possess a valid U.S. driver license. • Vehicle owners shall attest to proof of financial responsibility as required by RCW 46.30.020. • Developing entities shall self-certify to DOL that they are compliant with the above requirements before beginning a pilot program. The pilot programs that are conducting testing without a human operator present in the vehicle shall comply with these requirements (original text): • Vehicles shall be equipped with an ADS that performs all aspects of the driving task on a part- or full-time basis within the vehicle’s operational design limits, and it must be capable of bringing the vehicle to a safe condition in the event of a system failure. • Vehicles shall be capable of being operated in compliance with Washington State motor vehicle laws relevant to the vehicle’s operational design limits. • Vehicle owners shall attest to proof of financial responsibility as required by RCW 46.30.020. • Developing entities shall self-certify to DOL that they are compliant with the above requirements before beginning a pilot program. Wisconsin The Governor signed an executive order in May 2017 that will create a Steering Committee on Autonomous and Connected Vehicle Testing and Deployment (Wisconsin, 2017). Local Jurisdiction Activities Cities are also beginning to regulate C/AVs/HAVs, and municipal organizations are beginning to review C/AVs/HAVs through amendments to their city ordinances. It should be noted that some cities are allowing pilot tests to occur without any formal legal changes. For example, Pittsburgh has not amended its ordinances, but has a single agreement with Uber whereby the city allows them to permit under existing state law with a licensed human driver in the vehicle. In 2014, the city of Coeur d’Alene, in Kootenai County, Idaho, amended its municipal code to add a section that defined robot, authorized use of robots on public property, and the use of autonomously operated vehicles on city streets. The ordinance provided for repeal of conflicting ordinances (City of Coeur d’Alene, 2014). The amendment to the code can be seen in Figure 6.

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 62 Coeur d’Alene, Idaho Municipal Code SECTION 1. That Coeur d’Alene Municipal Code Section 4.05.030(B) is amended to read as follows: 4.05.030: DEFINITIONS: ROBOT: A self-powered, programmable, mechanical device capable of operating autonomously or via remote control. This definition does not include autonomously-operated motor vehicles defined under Chapter 1, Title 49, Idaho Code SECTION 4. That a new section 10.02.040, entitled Autonomous Vehicles, is added to the Coeur d’Alene Municipal Code as follows: 10.02.040: Autonomous Vehicles: The safe operation of autonomously-operated motor vehicles is permitted upon city streets, provided such operation complies with all applicable city, state and federal laws. Figure 6. Coeur d’Alene amendment. Source: Sterling Codifiers.com. The City of Boston announced, in September 14, 2016, that it would launch a program to explore HAV technologies that would focus on creating policy recommendations and supporting on-street testing of HAVs (City of Boston, 2016). However, on the same day as the Boston mayor’s announcement, Chicago Aldermen Ed Burke and Anthony Beale threw down a gauntlet when they proposed an ordinance that would ban AVs (Graham, 2016) in the City of Chicago. The proposed ordinance would amend Municipal Code Chapter 9-76, inserting a new section 9-76-240 - Autonomous Vehicles Prohibited. The ordinance states that no person shall operate an autonomous vehicle upon any roadway. Autonomous vehicle is defined as any vehicle equipped with autonomous technology that has been integrated into the vehicle. An autonomous vehicle does not include a vehicle that is equipped with one or more collision avoidance systems, including, but not limited to, electronic blind spot assistance, automated emergency braking systems, park assist. adaptive cruise control, lane keep assist, lane departure warning, traffic jam and queuing assist, or other similar systems that enhance safety or provide driver assistance, but are not capable, collectively or singularly, of driving the vehicle without the active control or monitoring of a human operator. (City of Chicago, 2016a) The fine for violation was set at $500. The ordinance is to be considered by a joint committee of Finance and Transportation. The Los Angeles County Development Corporation’s e4 Mobility Alliance (LAEDC e4, 2016), in comments to the California DMV’s autonomous vehicle regulations in October 2016, noted that they believe the regulatory focus should be on the transportation environment in which C/AVs/HAVs operate rather than on limiting regulation by vehicle class or the technology (LAEDC e4, 2016) strongly urge[s] the DMV to replace exclusion on the testing of autonomous vehicles by type, e.g., vehicles weighing over 10,001 pounds (§227.52), with a uniform approach for all vehicle types, all classes and configurations. Correspondingly, we urge the DMV to consider parameters under which testing of all vehicle classes can occur safely, such as use of closed public road environments with specified permitting. Setting uniform regulations covering all classes of vehicles will facilitate the creation of a holistic, real-world testing environment in which all

NCHRP Web-Only Document 253, Vol. 1: Legal Landscape 63 classes of vehicles will contribute to the collection of data for evaluation, improve safety of all autonomous vehicle applications, and help to ensure that California will continue to lead the nation in advanced transportation adoption, production and deployment. (LAEDC e4, 2016) LAEDC noted that regulations should pave a path for local jurisdictional involvement by providing a series of sample ordinances that municipalities can adopt to become “AV friendly,” thereby enabling municipalities to proactively attract AV testing and demonstration, further stimulating industry growth (LAEDC e4, 2016). The U.S. Conference of mayors released Resolution 99 in 2016, supporting C/AV/HAV technology in municipal transit. The resolution urged federal, state, and local policy makers to integrate municipal autonomous shuttles into their long-range plans for public transportation systems. The ordinance also called on Congress to adopt streamlined policies that encourage the safe and reliable development, testing, and deployment of C/AVs/HAVs, both private and public, on our nation’s roads and highways (U.S. Conference of Mayors, 2016)