Implications of Connected and Automated Driving Systems, Vol. 3: Legal Modification Prioritization and Harmonization Analysis (2018)

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NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 13 Overarching Prioritization Considerations The findings from previous activities suggest the need for states to get as "centric" as possible to the intersecting realities of technological imperatives, public policy, and stakeholder interests. The point where these realities intersect represent opportunities for legal and regulatory modifications (Figure 7). Figure 7. Visual depiction of the centric approach to prioritization efforts. Ideally, state legislative and regulatory schemes would fit neatly within the intersection of these circles. However, the reality of adapting legislation and regulation for C/ADSs will likely be messier, straying in one direction or another on a given issue or at a particular moment in time. When assessing law and regulation change, the closer a legislative and regulatory approach comes to the theoretical center where technology, stakeholders, and current laws, regulations, and policies meet, the more likely that change is to meet public policy objectives, avoid or withstand external challenges, and meet the needs of a complex, evolving technology. As states move forward, the seven overarching considerations presented within this section form the basis for any specific law and regulatory change or priority determination. These considerations will help states assess state resources and objectives, engage stakeholders, conduct a legal and regulatory inventory analysis (including the prioritization of potential modifications), and evaluate legal and regulatory modifications. Keeping these considerations in mind will help states remain centric as they advance and prepare for the deployment of level 4–5 ADS-equipped vehicles. 3.1 Consideration 1: Assess State Objectives States should determine their goals and objectives for C/ADS deployment. For example, a state’s focus may be research-based, economic development-based, or safety-based. The desire for modifications may be driven from internal or external (e.g., industry driven change) forces. States may move modifications forward to advance certain deployments quickly or they may take a more holistic approach and plan for the deployment of all C/ADSs. It is critical that a state determine its own goals from a multi-agency approach. States should: • Clearly outline the state’s and leaderships’ expected roles in modifying laws and regulations.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 14 • Understand the key drivers. • Ensure a strategic approach. • Determine who will lead the effort. • Set the strategic course from a state perspective, ensuring the incorporation of a state motor vehicle code perspective as well as a broader transportation perspective. • Create a policy framework. We can look to Utah, Virginia, and Pennsylvania for good examples of embracing the overarching priority of determining state goals and objectives. For example, Virginia recently developed its vision for advancing C/ADSs in the state: “To create a strategic policy framework for transitioning autonomous vehicles into the Virginia transportation network, and associated Autonomous Vehicle program, by which the Office of the Secretary can position Virginia to be a national leader in the rapidly advancing field of self-driving, connected mobility” (Day, 2017). Pennsylvania also recently outlined its C/ADS statewide strategic plan, calling for expanding existing research, using actionable information and developing near- term and long-term actions in nine areas ranging from driver licensing and motor vehicles to workforce requirements (Myers, 2017). The Utah DOT (2016) outlined key policy considerations or strategic questions that needed to be addressed for the state to determine this foundational priority consideration. The report noted the following among a number of questions policymakers may consider: • Is Utah’s goal to be an early adopter of level 4–5 ADS-equipped vehicles? If so, what are the legislative priorities associated with enabling that goal? Does any existing legislation hinder this goal? • Does Utah wish to make a greater effort to leverage autonomous vehicle technology growth for potential economic development? If so, which sectors of the industry and/or which manufacturers are the best fit for Utah? How can Utah incentivize private industry to locate and invest here? • Should Utah take a more conservative approach of learning from national efforts and other states before moving forward on new legislation, policies, or efforts to entice private industry partnerships? 3.2 Consideration 2: Organize a Stakeholder Group or Advisory Committee Many states have begun the outreach process and a number of states are using advisory or working groups or steering committees (referred to more generally as stakeholder groups), recognizing that this is an important step to engage cross-agency representation, industry and other interest groups. In forming these groups, states should consider: • Obtaining broad-based input from industry and appropriate state and federal agencies, including DMVs, DOTs, law enforcement, NHTSA and the FHWA, OEMs and suppliers, technology companies, insurance interests, and others that are state appropriate. • Including inside counsel (or external if appropriate).

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 15 • Consulting with the Attorney General's Office to develop a more systematic and coordinated approach to legal challenges. • Engaging with the Governor’s office and staffs as well as state legislative representatives (e.g., to assess the current political climate, to identify potential legislative champions and opportunities to include key members of the legislature and their staffs). Legislative action may be needed in some states to develop advisory groups or steering committees; this type of mandate is often a state’s initial C/ADS-related legislation. Some examples of recent legislative action include the following: Wisconsin. Executive Order 245 (2017) created the Governor’s Steering Committee on Autonomous and Connected Vehicle Testing and Deployment. The Committee is charged with identifying all agencies in the state with jurisdiction over testing and deployment of the vehicles, coordinating with the agencies to address concerns related to issues such as “vehicle registration, licensing, insurance, traffic regulations, equipment standards, and vehicle owner or operator responsibilities and liabilities under current law,” and reviewing current state laws and regulations that may impede testing and deployment, along with other tasks. Connecticut. CT Public Act No. 17-69 (June 27, 2017) establishes a task force to study “fully autonomous vehicles,” to evaluate the standards established by NHTSA regarding state responsibilities for regulating fully autonomous vehicles, the laws, legislation and regulations proposed or enacted by other states, and recommendations on how the state should regulate. Vermont. Act No. 38 (HB 494) (May 17, 2017) requires the DOT to convene a meeting of stakeholders with expertise on a range of topics related to “automated vehicles” and to report any recommendations, including proposed legislation, to the legislature. Stakeholder committee charters should clearly note the timeframe for the committee's activities, the committee's charge (e.g., complete an audit, provide opportunities for information sharing), and anticipated deliverables (e.g., a prioritized list of modifications), if any. 3.3 Consideration 3: Scan the Legislative and Regulatory Landscape Loftus-Otway and Gallun (updated 2018) provides an overview of the types of legislative actions that have taken place in the past years. This information is instructive and provides states with templates to consider. Especially relevant are the definitions states are considering for level 4–5 ADS-equipped vehicles, level 1 and 2 driving automation system platooning technologies, and C/ADS operators and manufacturers. A sampling of activity is included here to demonstrate the divergent measures that are quickly becoming law. These activities are important and progressive, but are equally concerning in that they have led to inconsistent laws and definitions across states. It is becoming clearer and more urgent, based on the varying definitions that are emerging in state laws, that codified federal guidance is needed soon and/or that associations like AAMVA or AASHTO quickly develop guiding documents that specifically address aspects of the law such as definitions. Again, development of consistent definitions is paramount in the short-term. Some examples of various definitions are included in Table 4.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 16 Table 4. Definition-Related Legislative Examples State/Term Definition California CA Veh Code § 38750 (through 2013 Leg Sess) Operator (of an autonomous vehicle) The person who is seated in the driver's seat, or if there is no person in the driver's seat, causes the autonomous technology to engage. Manufacturer (of an autonomous vehicle) The person that originally manufactures a vehicle and equips autonomous technology on an originally completed vehicle or, in the case of a vehicle not originally equipped with autonomous technology by the manufacturer, the person that modifies the vehicle by installing autonomous technology to convert it to an autonomous vehicle after the vehicle was originally manufactured. Arkansas Arkansas Code § 27-51-305 Driver-assistive truck platooning system (2)(d)Technology that integrates sensor array, wireless communication, vehicle controls, and specialized software to synchronize acceleration and braking between two (2) or more vehicles while leaving each vehicle's steering control and systems monitoring and intervention control of its human operator. Nevada NRS 484A.080 Driver Sec. 11.5.(2) If a vehicle is an autonomous vehicle, as defined in NRS 482A.030, and the automated driving system, as defined in NRS 482A.025, of the autonomous vehicle is engaged, “driver” means a person who causes the automated driving system of the autonomous vehicle to engage. Autonomous vehicle network company Section 14.24 : An entity that, for compensation, connects a passenger to a fully autonomous vehicle to provide transportation services or transports goods using a fully autonomous vehicle. Note: this task refers

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 17 State/Term Definition to TNCs in the automated environment as Automated Mobility as a Service or A-MaaS Texas Chapter 545, Sec. 545.451. Automated driving system 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 DDT for the vehicle on a sustained basis and fallback maneuvers necessary to respond to a failure of the system. Automated motor vehicle A motor vehicle on which an automated driving system is installed. Entire dynamic driving task 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 A natural person in an automated motor vehicle who controls the entire DDT and “Owner” has the meaning assigned by current statute (AN ACT relating to automated motor vehicles, 2017) Louisiana Section 1. R.S. 32:1(1.2) Autonomous technology 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 DDT 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

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 18 These are just a few examples of recent state legislative activity. In scanning the state landscape, state policy makers should take full advantage of these considerations and lead such associations as AAMVA, from a state motor vehicle code and law enforcement perspective, and AASHTO, through their work on the connected vehicle and infrastructure perspective, to assist states in an understanding and awareness of the landscape. 3.4 Consideration 4: Complete a Legal and Regulatory Inventory Audit and Determine the Best Route for Codification and Modification of Laws and Regulations This project’s legal and regulatory review provided a checklist of areas where key laws and regulations may need to be modified. (That checklist is provided in this document at Table 5). State legal professionals and advisory committees can use this checklist as an initial guide for conducting a legal and regulatory inventory audit. Based on the knowledge gained from past efforts, an audit should focus on state motor vehicle codes first. Other portions of state laws, particularly transportation, can be added later. It is also our recommendation that this audit—supported by a committee— should be completed in the near-term, ideally within 6 months. This audit should also review accompanying regulations as they interface with C/ADS-equipped vehicle deployment and suggested law changes. The results of this audit should form the basis for a master plan that will guide and inform all future legal action and interaction with state legislatures. The audit should not only identify laws and regulations that need to be changed and new programs that should be added, but should also consider which institution is best prepared to make these changes and the extent of citizen outreach that is necessary. Findings from the stakeholder outreach effort revealed that very few states have undertaken a detailed legal and regulatory inventory audit. Most states’ approaches to C/ADSs are more “casual” in nature and not detailed to specific areas of law. One of the key reasons for this is because most states are in C/ADS testing mode. However, due to the federal government’s automated driving systems policy (NHTSA, 2016; updated 2017), which focuses on testing, states are expected to begin addressing deployment regulations. A legal audit is the first step in addressing any needed changes in or additions to these regulations. Based on our review of state efforts, stakeholder input, the legal and regulatory inventory audit findings, and past experience in this area, the following should be considered when conducting a legal and regulatory inventory audit: • State motor vehicle agencies should take the lead. They are best equipped to understand implications to current vehicle and driver laws and also best suited to understand the implications to harmonization and state-to-state reciprocity. Other agencies should be involved as deemed necessary. • While some states continue to contemplate the advancement of level 4–5 ADS-equipped vehicles, the focus tends to be only on testing. A comprehensive focus on laws and regulations should cover not just testing but also deployment and the various models for deployment along with their specific and unique challenges. • It is unlikely that state legislatures will grant state agencies the unilateral authority to make regulation modifications without oversight once legal structure is in place for level 4–5 ADS- equipped vehicles, but states should consider requesting a more flexible approach to needed changes as technology evolves. One state in our study considered codifying basic level 4–5 ADS- equipped vehicle legislation and permitting the DMV to issue policy to address fast moving

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 19 changes, but the state's Legislature has yet to agree to this approach. One possible alternative is to legislate yearly formal updates and grant the DMV authority to issue and enforce policy until any changes can be modified in law. • As revealed through the legal and regulatory inventory audit and assessment (Wagner et al., 2018), there are fundamental laws that will require modification (as prioritized later in this Assessment). State policy makers should use this document as a guide to their legal review.5 The level 4–5 ADS-equipped vehicle landscape is a non-traditional landscape that requires a non- traditional response from state legislatures. DMVs will need laws with flexibility that create an entirely different paradigm, which may require state legislatures to let go of some of the more operational DMV oversight. In some states, regulations can take 12–24 months to modify or enact. As such, this avenue of change is not recommended, unless a state determines that rulemaking is a more expedient and flexible route to enacting change than through legislative action. The most flexible and expedient route, with ample opportunity for public and stakeholder input, should be determined by the state. North Carolina’s approach to C/ADS rules and regulations is worth noting here on two fronts: • The approach they took to enacting laws related to C/ADS operations. (An Act to Regulate the Operation of Fully Autonomous Motor Vehicles on the Public Highways of this State, 2017). • The extensive legal audit they did of their state motor vehicle code (Kimley-Horn, 2016). North Carolina chose to add a completely new article to its general statutes covering definitions, the regulation of level 4–5 ADS-equipped vehicles (including driver’s licensing requirements, vehicle registration, unattended vehicles, and the application of FMVSS local preemption), the creation of an ongoing Fully Autonomous Vehicle Committee, and other areas. While some stakeholders consulted did not recommend adding completely new sections to legislation, it is a consideration for states and may prove to be more expedient and flexible. Most jurisdictional stakeholders, however, noted that adding completely new sections to legislation, like North Carolina did, would be difficult, as current vehicle codes are too complex and laden with existing, interrelated case law to start from scratch. As part of North Carolina's C/AV Roadmap Development Project, a review of North Carolina's General Statutes Chapter 20 (Motor Vehicles) and Chapter 58 (Insurance) was performed. The ensuing report provided a summary table that included the relevant page number within the chapter, article and section number, section title, levels of automation where the comments should be considered, and the suggested focus of the discussion. The recommendations were developed to guide the appropriate working groups with a starting point for analysis. Their approach included comments on elements of the statutes possibly requiring revision(s) in response to the advancement of ADS technologies (Kimley-Horn, 2016). California took a legislative approach similar to North Carolina’s by adding specific C/ADS laws and regulations and updating them as changes in the market occurred. Further, Pennsylvania recently considered amending the current vehicle code by adding a new chapter for level 3–5 ADS-equipped vehicles with cross-references to existing code (AN ACT Amending Title 75 [Vehicles] of the Pennsylvania Consolidated Statutes, 2017). 5 Wagner et al. (2018) also present a systematic method for reviewing state legal and regulatory requirements that readers of this report may find useful.

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 20 No matter what the approach, a state motor vehicle code audit is an important overarching priority consideration. To assist with this process, it is important to continue to monitor activities from the federal government as well as the ongoing work of associations (such as AAMVA from a state motor vehicle code and law enforcement perspective and AASHTO from a C/ADS and infrastructure perspective). 3.5 Consideration 5: Determine Appropriate Policy Direction Regarding Federal Preemption and Local Restrictions. While both NHTSA and its counterparts at FMCSA have issued C/ADS policy guidance, neither has yet issued any regulatory provisions. This lack of definitive guidance for both testing and deployment, along with efforts in Congress surrounding federal preemption, make it murky at best for states to make decisions regarding federal preemption. Nonetheless, based on stakeholder input and current federal preemption surrounding motor carrier and commercial driving, it is recommended that decisions regarding the role federal preemption will play in modification of state motor vehicle codes be made early on. It is likely that vehicle standards will continue to be a federal role (i.e., the FMVSS), due to their importance for seamless nationwide C/ADS deployment. States should also consider what role they believe, as a matter of policy, federal definitions will play as state laws are modified and leave placeholders for these future laws. For example, states now codify in legislation the Commercial Motor Vehicle Safety Act of 1986. It is, however, necessary for states to use less specific language in the C/ADS area. This is especially true until federal guidance is more than just guidance. Similarly, strategic consideration should be given to what role local restrictions will be permitted or required to have regarding level 4–5 ADS-equipped vehicle deployment. This is especially relevant for A- MaaS deployment and the most recent introduction of ride share services. State and local preemption provisions are an important factor as states consider this overarching priority. When local ordinances and regulations are layered into level 4–5 ADS-equipped vehicle deployment law and regulation modifications, the situation becomes complex, especially for OEMs and technology companies. These types of strategic considerations need to be made early in the audit process, as do incorporated statute modification provisions for any statutes governing federal or local preemption. Examples of recent state efforts include the following: Colorado: Colorado SB 17-213 (June 1, 2017) declares the regulation of ADSs a matter of statewide concern, and, therefore, local authorities are prohibited from regulating these systems. The use of ADSs is authorized if the system is capable of conforming to every state and federal law applying to driving. If not, a person testing a system is required to coordinate with the Colorado state patrol and the Colorado DOT. Tennessee: Tennessee SB 0598 (May 6, 2015) prohibits local governments from banning the use of C/ADS technology Texas: Texas SB 2205 (June 15, 2017) regulates the operation of "automated motor vehicles" and "automated driving systems." The act precludes political subdivisions or state agencies from imposing a franchise or other regulation related to the operation of a C/ADS. Legislation such as that discussed above is important, as it employs a holistic perspective that includes all types of C/ADSs. Many issues, such as lane access and parking, which have traditionally been the jurisdiction of local governments will be important in the deployment of C/ADSs and related law modifications, particularly for A-MaaS deployments. With this in mind, it is important to:

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 21 • Include, as part of a state’s determination of its goals and objectives for C/ADSs, and as part of its legal audit, discussions with any advisory or steering committee on federal and state preemption. This is an important overarching priority for motor vehicle law modification considerations and a state’s legislative strategy. • Continue to monitor activities at the federal level, especially the efforts of Congress and any updates to NHTSA’s policy to consider federal preemption. 3.6 Consideration 6. Determine the Role of Stakeholders The appropriate role of manufacturers, technology companies, and other interests should be determined. Most stakeholders consulted for this project recognized the new roles that technology companies, manufacturers, dealers, A-MaaS providers, and fleet operators may play as C/ADSs are deployed (Serian et al., 2017). These interest groups, and the coalitions they have formed, are very much engaged in the federal direction of C/ADS regulation and are also engaged in current state stakeholder efforts. Areas such as product liability, consumer education, data privacy, and cyber security are all key stakeholder interests. States should determine the role for private interests based on their state’s objectives for deployment. In this regard, state stakeholders have noted that there must be transparency from these interest groups. A tendency to overstate technology capabilities, for instance, does not serve the best interests of states when determining needed law or regulation priorities. Future Congressional action (and federal preemption) may limit the need for involvement from stakeholders regarding vehicle performance, testing, vehicle standards, and other non-traditional state roles, but nonetheless, collaboration and/or coordination with OEMs and suppliers will be important based on what may be new roles for manufacturers and their dealers. The same applies to technology companies who are not traditional dealers. Figure 8 shows the percentage of stakeholders responding to questionnaires who recognized the need for significant new vehicle manufacturer and dealer responsibilities (Serian et al., 2017). Figure 8. Stakeholders' perceived need for significant new vehicle manufacturer and dealer responsibilities. 3.7 Consideration 7: Identify and Educate Legislative Champions State legislators, especially those in leadership roles in transportation and those involved in the stakeholder group, must be engaged in deliberations and state considerations for law and regulation modifications. Stakeholders responding to the questionnaire (Serian et al., 2017) also pointed out a current lack of legislative understanding, underscoring the need for states to begin legislative discussions in the short term. Such discussions should include C/ADS educational components to help legislators

NCHRP Web-Only Document 253, Vol. 3: Legal Modification Prioritization and Harmonization Analysis 22 understand necessary law and regulation modifications and the need to find ways to allow for continual and accelerated revisions based on technology changes. A subsequent activity for this NCHRP project will provide states with a guidance document on engaging the Legislature. 3.8 Overarching Legal and Regulatory Modifications Stakeholders uniformly noted that there are three areas that must be considered in the short term for law and regulation changes (Serian et al., 2017). 1. Definition Determinations. This is the first and foundational priority that states should consider, and has been consistently identified as such by stakeholders. The definitions of “driver,” “operator,” “drive,” and “operate” are key first steps. New terms in need of consistent definitions include “autonomous” or “automated” vehicle and a codification of the ADS-equipped vehicle levels based on SAE J3016 definitions. 2. Platooning Definitions and Associated Allowances. Stakeholders identified this as the second most important area to consider, as platooning capabilities continue to advance quickly. 3. Need for Model Definitions and Best Practices Language. Lastly, stakeholders noted that a model law may not be the best direction for advancing law and regulation changes. A preferred approach would be developing model definitions that could be used as a basis for states to consider along with best practices language. A detailed discussion for additional legal and regulatory modifications to be considered in the short-, mid-, and long-terms is provided in the following chapter.