Updating Regional Transportation Planning and Modeling Tools to Address Impacts of Connected and Automated Vehicles, Volume 2: Guidance (2018)

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83 The regulatory context for CAVs is addressed at the federal level by NHTSA through guidance and by Congress through legislation, and at the state level through legislation. Recent activities at both levels are presented below. NHTSA Guidance on AVs In September 2016, the U.S. DOT published a federal automated vehicle policy via NHTSA that took initial steps toward a unified, national regulatory framework for AVs. Then, in Sep- tember 2017, NHTSA issued Automated Driving Systems 2.0: A Vision for Safety (NHTSA 2017), which replaced the earlier policy framework. The 2017 framework was divided into two sections. The first offered voluntary guidelines for the AV industry in designing best practices for testing and deployment of AVs. It covered vehicles that incorporate SAE Levels 3–5, or highly auto- mated vehicles. The policy framework did not carry a compliance requirement or enforcement mechanism. Instead, it offered suggestions on 12 priority safety design elements and encour- aged industry participants to perform voluntary safety self-assessments that demonstrate their approach to testing and deployment. The voluntary safety self-assessments were intended to build public trust in AVs and encourage the establishment of industry safety norms. The second part of NHTSA guidance clarified NHTSA versus state responsibilities vis-à-vis automated driving systems (ADSs) (see Table A-1). NHTSA regulates motor vehicles and motor vehicle equipment, while states are responsible for regulating the human driver and most other aspects of motor vehicle operation. NHTSA also recommended that states adopt four safety- related types of legislation: • A technology-neutral environment—all organizations meeting federal and state law pre- requisites should be able to test vehicles in a state; • Licensing and registration procedures; • Reporting and communications methods for public safety officials; and • Reviews of traffic laws and regulations that could be barriers to ADS testing and deployment. In 2018, the U.S. DOT plans to release a third iteration of the guidance, AV 3.0. While the 2017 policy framework was focused on passenger vehicles, the 2018 policy guidance is expected to cover all modes of transportation, including public transit, rail, commercial trucks, and aviation. NHTSA Action on CVs Federal regulatory action for CVs has focused on V2V technology. In August 2014, NHTSA issued an advance notice of proposed rulemaking to begin implementation of V2V communica- tions technology. Then in January 2017, NHTSA issued a proposed rule to establish new FMVSS A P P E N D I X Regulatory Context for CAVs

84 Updating Regional Transportation Planning and Modeling Tools to Address Impacts of Connected and Automated Vehicles to mandate V2V communications for new light vehicles and to standardize the message and for- mat of V2V transmissions. FMVSS are federal regulations specifying design, construction, perfor- mance, and durability requirements for motor vehicles and regulated automobile safety-related components, systems, and design features. As a purported rationale for the rulemaking itself, NHTSA’s 2017 proposed rule stated that “without a mandate, manufacturers would not be able to move forward in an efficient way and that a critical mass of equipped vehicles would take many years to develop.” However, as of 2018, such rulemaking has not advanced. In November 2017, NHTSA issued a statement that it had not made any final decision on the proposed rulemaking concerning a V2V mandate. The CAV industry is moving forward regardless of the rulemaking. Congressional Action In September 2017, the House of Representatives passed the SELF DRIVE Act, and the Senate followed by passing the AV START Act in October 2017. These acts respond to calls for regulatory changes at the federal level to promote the development of AV technology. Both seek to preserve the existing regulatory approach to vehicle safety while making modest changes to accommodate self-driving technologies. Both expand federal preemption of state authority over AVs by prohibiting state and local governments from legislating in the areas of vehicle design, construction, or performance, thus suggesting that state and local regulations should be focused on traditional state-regulated areas like registration, licensing, insurance, and traffic laws. The two acts take different approaches to privacy and cybersecurity. The SELF DRIVE Act stipulates that a manufacturer may not market a highly automated AV unless that manufacturer has developed a privacy plan and a cybersecurity plan that identifies, mitigates, and prevents privacy and cybersecurity vulnerabilities. The AV START Act establishes a Data Access Advisory Committee to produce a report to Congress with policy recommendations on ownership and control of data generated or stored by AVs. The AV START Act does require that manufacturers have a detailed plan for identifying and reducing cybersecurity risks. State Legislature Action State legislatures are becoming increasingly engaged with the topic of AVs and are con- sidering how best to regulate on the topic, spurred in part by NHTSA’s Automated Driving Systems 2.0: A Vision for Safety. The National Conference of State Legislatures’ (NCSL) Auton- omous Vehicles Legislative Database provides current information on state legislative efforts targeting AVs (http://www.ncsl.org/research/transportation/autonomous-vehicles.aspx). Accord- ing to NCSL, 41 states and the District of Columbia have considered legislation related to AVs since 2012, and of those, 22 states (Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Louisiana, Michigan, Nevada, New York, North Carolina, North Dakota, NHTSA’s Responsibilities States’ Responsibilities Setting FMVSS for new motor vehicles and motor vehicle equipment Licensing human drivers and registering motor vehicles in their jurisdictions Enforcing compliance with FMVSS Enacting and enforcing traffic laws and regulations Investigating and managing the recall and remedy of noncompliance and safety-related motor vehicle defects nationwide Conducting safety inspections, where states choose to do so Communicating with and educating the public about motor vehicle safety issues Regulating motor vehicle insurance and liability Note: FMVSS = Federal Motor Vehicle Safety Standards. Table A-1. Federal and state regulatory roles.

Regulatory Context for CAVs 85 Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and Vermont) and the District of Columbia have passed legislation. Also, governors in Arizona, Delaware, Massachusetts, Wash- ington, and Wisconsin have issued executive orders related to AVs. In general, the executive orders support study, assessment, and preparation for the widespread adoption of CAVs. The regulatory context for AVs in the states is as dynamic as it is varied. Legislation and executive actions have been state specific, with no attempt at coordination across states, thus prompting the congressional action discussed previously that attempts to provide a national policy framework. A brief summary of state regulation based on information from NCSL and the Council of State Governments follows. • A few states have only addressed truck platooning in legislation. – Alabama: 2018 legislation establishes a legal definition of a truck platoon and exempts the trailing trucks in a truck platoon from the state’s “following too closely” provisions if the truck platoon is engaged in electronic brake coordination. – Arizona: More than 600 self-driving cars are reportedly being operated on public roads in Arizona. Waymo has received permits to operate a ride-hailing service without human drivers. Arizona suspended Uber’s self-driving vehicle tests after a fatal accident in that state in March 2018. – Arkansas: 2017 legislation regulates the testing of vehicles equipped with driver-assistive truck platooning systems. – South Carolina: 2017 legislation specifies that laws on minimum following distance for vehicles traveling along a highway do not apply to the operator of any nonleading vehicle traveling in a platoon. • In many states, legislation only enables testing on public roads or studies to examine the enabling of testing or use of AVs. – Connecticut: 2017 legislation requires the development of a pilot program for up to four municipalities for the testing of fully automated vehicles on public roads. It specifies the requirements for testing, including having an operator seated in the driver’s seat and pro- viding proof of insurance of at least $5 million. – Indiana: Lawmakers have been working on legislation to establish a certification system (i.e., set safety and other standards) for driverless cars. – Maryland: The Hogan administration is making available permits for the testing of CAV technology. The first permits were issued to a Howard County company to allow testing at parking lots owned by the Maryland DOT. – Minnesota: An executive order issued in March 2018 establishes an Advisory Council on Connected and Automated Vehicles to study, assess, and prepare for the opportunities asso- ciated with the widespread adoption of CAVs. – Nebraska: Lawmakers are considering two AV-related bills. One allows AVs on state roads and highways but still requires testers to be able to continuously monitor them and take control of the vehicle if necessary. The second allows researchers to test AVs only in Lincoln. – New York: 2017 legislation allows the commissioner of motor vehicles to approve AV tests and demonstrations. – North Dakota: 2017 legislation requires the DOT to study the use of vehicles equipped with ADSs on highways and the data or information stored or gathered by the use of those vehicles. – Ohio: An executive order signed in January 2018 creates a statewide center for AV research and smart road technology called DriveOhio. • In other states, legislation enables the use of an ADS on public roads and requires a human driver to be in the vehicle. – Colorado: 2017 legislation 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 every state and federal law. The

86 Updating Regional Transportation Planning and Modeling Tools to Address Impacts of Connected and Automated Vehicles Colorado DOT is considering a congestion-relief plan for Denver’s western suburbs that could include a dedicated lane for AVs. – Georgia: 2017 legislation exempts a person operating an automated motor vehicle with the ADS engaged from the requirement to hold a driver’s license. – District of Columbia: 2012 legislation requires a human driver to be in the vehicle and be prepared to take control of the vehicle at any moment. DC is currently inviting companies to test AV technology on one street that connects the new Wharf waterfront plaza develop- ment to the National Mall. – Illinois: 2017 legislation preempts local authorities from enacting or enforcing ordinances that prohibit the use of vehicles equipped with an ADS. • Some states have recently removed requirements that a human driver should be behind the wheel at all times. – Arizona: A 2018 executive order removes a requirement that a human driver be behind the wheel of an AV at all. – California: In March 2018, state officials announced that fully driverless cars (i.e., no human driver inside) will be allowed on public roads; however, a remote operator is required to monitor the vehicle as it is being tested on public roads. Companies wishing to test must seek permission from law enforcement and provide them with the routes the cars will take. – Florida: 2016 legislation expands on that of 2012, allowing the operation of AVs on public roads and eliminating requirements for the testing of AVs and the presence of a driver in the vehicle. – Michigan: The state enacted a series of laws in 2016 that authorize further testing and use of AVs on all public roads. The laws were some of the first to permit the operation of AVs without a human driver. – Nevada: 2017 legislation allows the use of driver-assistive platooning technology on high- ways in the state. It also permits the operation of fully automated vehicles in the state with- out a human operator in the vehicle and specifies that the original manufacturer is not liable for damages if a vehicle has been modified by an unauthorized third party. – North Carolina: 2017 legislation establishes regulations for the operation of fully auto- mated vehicles on public highways and specifies that a driver’s license is not required for an AV operator. It requires that an adult be in the vehicle if a person under 12 is also in the vehicle. – Tennessee: 2017 legislation permits ADS-operated vehicles on streets and highways without a driver in the vehicle if it meets certain conditions. ADS-operated vehicles are exempt from licensing requirements. The ADS is considered a driver for liability purposes when it is fully engaged and operated properly. – Texas: 2017 legislation allows an automated motor vehicle to operate in the state regardless of whether a human is present in the vehicle as long as certain requirements are met, and it specifies that the owner of an ADS is the operator of the vehicle when the system is engaged. The system is considered licensed to operate the vehicle. – Utah: A 2018 bill passed by the House Transportation Committee and sent to the full House in March allows AVs on all roads and creates somewhat different rules, liability, and insur- ance requirements for different levels of autonomy. As the technology for AVs continues to develop, state legislation will continue to evolve to address the potential impacts of these vehicles on the road.