Multistate Coordination and Harmonization for AV Legislation (2024)

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NCHRP LRD 91 59 The downward harmonization approach has stalled out, and states are introducing statutes that are much more focused, follow ing guidance from literature, industry and the public. However, action has not focused specifically around harmoniza- tion within this process, but rather states have molded definitions and other terms into statutes in an ad-hoc process. The impetus behind these changes is not evident in testimony in legislative committee hearings. In some states the crashes that have been occurring have played a role in driving the legislative process, as well as other issues that are arising around privacy and liability. This may also be a function of technology sitting within one of the five phases of the Gartner Hype Cycle. This cycle has five key phases in a technologies life: innovation trigger, peak of inflated expectations, trough of disillusionment, slope of en- lightenment and plateau of productivity.725 The trough of disillu- sionment is where we are considered to be sitting as at mid-year 2023, defined as: Interest wanes as experiments and implementations fail to deliver. Producers of the technology shake out or fail. Investments continue only if the surviving providers improve their products to the satisfac- tion of early adopters.726 There are short-, medium- and long-term areas where states can be working toward a harmonized approach to managing AVs. In addition existing legal structures that harmonize our current legal regime or facilitate reciprocity, information shar- ing, and comity can play a foundational role in either setting up or amending existing structures to facilitate AV’s path into our society. A. Existing Harmonization Processes 1. Interstate Compacts, Agreements and Cooperation Certain interstate compacts currently facilitate reciprocity and comity for interstate drivers, so this model has been imple- mented uniformly. a. Driver License Compact The DLC727 is a voluntary interstate compact among 45 States and Washington, DC728 to maximize law enforcement efforts nationwide. The DLC was created to provide uniformity Governor Helped make State ‘Wild West’ for Driverless Cars, National Public Radio, (Mar. 20, 2018), https://www.npr.org/sections/thetwo- way/2018/03/20/595115055/arizona-governor-helped-make-state-wild- west-for-driverless-cars#:~:text=%22Arizona%20welcomes%20 Uber%20self%2Ddriving,%2C%22%20the%20Republican%20 governor%20said. 725 Hype Cycle: Interpreting Technology Hype, Gartner.Com, (2023), https://www.gartner.com/en/research/methodologies/gartner-hype- cycle?utm_source=google&utm_medium=cpc&utm_campaign=GTR_ NA_2022_GTR_CPC_SEM1_BRANDCAMPAIGNMQ&utm_ adgroup=141653137818&utm_term=hype%20cycles&ad=61836363209 3&matchtype=e&gad=1&gclid=EAIaIQobChMIhqLOsobk_ wIVWG5vBB1eGQl4EAAYASAAEgLBpPD_BwE . 726 Id. 727 See DLC, supra note 351. 728 States not in the DLC: Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin. Some believe that a national drivers’ Federal Information Security Management Act718 and GLBA.719 International standards are increasingly more important in the cybersecurity legal frameworks of AV regulation. Questions remain however, on educating the public on AV software up- dates, transparency on AV capabilities, fairness and consumer protection720 - especially in the case of L2+ and L3 AVs - in that consumers and the judicial system may not be equipped with the technical knowledge to legally delineate ADS versus human interactions. 721 VII. OPPORTUNITIES FOR HARMONIZATION Opportunities for harmonization between the states, and even with the federal government in the traditional federal roles will necessary to facilitate a smooth transition to an AV future. Notwithstanding the barriers and conflicts noted earlier there are glimpses of harmonization among industry standards - using terms developed by the ULC and the uptake by many states of SAE J3016 definitions to begin this path. However, as noted by NCHRP Web-Only Document 253 there are also challenges in instituting an upward versus a downward harmonization in terms of equilibrium for agreed upon standards and potential races toward lenient regulations and requirements.722 NCHRP Web-Only Document 253 also noted that the simple act of harmoniza tion should not be the end goal for states. There is a critical difference between upward and downward harmoniza- tion. In upward harmonization, states with less stringent regula- tory regimes harmonize with states with more stringent require- ments. In downward harmonization, the equilibrium for agreed upon standards is driven to the lowest common denominator by the states with the most lenient regulations and requirements.723 After 2015, a downward harmonization approach occurred in legislative activities as a reaction to states passing statutes for testing and piloting that required a permit fee, a delineation of area for testing, and reporting of ADS disengagements and crashes. This was most notably seen in the Arizona Governor’s choice to pursue an Executive Order 2015-09 encouraging self- driving cars to come to the state with little oversight.724 718 The Federal Information Security Modernization Act of 2014 (FISMA 2014), Public Law No: 113-283 (Dec. 18, 2014), https://www. congress.gov/bill/113th-congress/senate-bill/2521, (updates the Federal Government’s cybersecurity practices). 719 Gramm-Leach-Bliley Act, GLBA, 15 U.S.C. § 6801-6809 (1999). 720 Emma Himes, NHTSA Up in the Clouds: The Formal Recall Process & Over-the-Air Software Updates, Mich. Tech. L. Rev., 2021, at 165. 721 See Widen & Koopman, supra note 28 (detailed discussion of contributory negligence and roles of human driver versus ADS as “driver”). 722 See NCHRP Web-Only Document 253 supra note 2. 723 Id. 724 Executive Order 2015-09, Self-Driving Vehicle Testing and Piloting in the State of Arizona, available at: https://azmemory.azlibrary.gov/ nodes/view/95630. See also Mark Harris, Exclusive: Arizona Governor and Uber Kept – Self-Driving program Secret, Emails Reveal, (Mar. 28, 2018), https://www.theguardian.com/technology/2018/mar/28/uber- arizona-secret-self-driving-program-governor-doug-ducey. Arizona

60 NCHRP LRD 91 in court or pay the fine. If they fail to do so, the state where they were issued the citation will send notice of noncompliance to the Department so that her Colorado driver license will be revoked.738 This compact could be utilized, with amendment, to provide standardized methods to handle L3-5 AVs where the ADS is engaged, or a remote driver (whether computer or human) takes over the movement of the vehicle and an incident occurs that necessitates a moving traffic summons. c. Problem Driver Pointer System The Problem Driver Pointer System (PDPS)739 allows juris- dictions and other organizations to search the National Driver Register (NDR)740 data. The NDR is a repository of information on problem drivers provided by all 51 U.S. jurisdictions. Based on information received as a result of an NDR search, PDPS “points” the inquiring jurisdiction to the state of record (SOR), where an individual’s driver status and history information is stored. Based on the information received from the SOR, the is- suing state decides if the applicant is eligible to receive a new or renewed driver license. PDPS is developed and maintained by the NDR organization, which is part of NHTSA. As a national system database, the PDPS offers a venue to manage and moni- tor the records of L3-5 driver licenses (whether human or com- puter and/or company controlling). d. Driver’s License Agreement (DLA) The DLA is a voluntary, reciprocal agreement among mem- ber jurisdictions to promote the “one license-one driver control record” concept and to provide for the fair and impartial treat- ment of all drivers operating within their respective borders. It was developed in 2000. The DLA deals specifically with the issuance and retention of driver’s licenses, the update and maintenance of driver records, compliance with the laws and regulations relating to highway safety and federal mandates, as well as the exchange of information between member jurisdic- tions. The new DLA is touted to be a more efficient and effective agreement for the jurisdictions to share and transmit driver and conviction information.741 Three states have signed this agree- ment: Arkansas, Connecticut, and Massachusetts.742 The DLA’s goal is to promote a traffic safety program with a Uniform Driver License/Identification (DL/ID) Security System. 743 It has been heavily promoted by AAMVA to improve 738 See also, Texas DPS, Section 15: NRVC, https://www.dps.texas. gov/section/driver-license/faq/section-15-non-resident-violator- compact-nrvc#:~:text=If%20you%20are%20issued%20a%20 moving%20violation%20in,will%20appear%20in%20court%20or%20 pay%20the%20fine. 739 See AAMVA, supra note 351. 740 National Driver Register, NHTSA, https://www.nhtsa.gov/ research-data/national-driver-register-ndr. 741 See supra note 730. 742 Driver License Agreement, https://ballotpedia.org/Driver_ License_Agreement. 743 Id. among member jurisdictions when exchanging information with other members on convictions, records, licenses, with- drawals, and other data pertinent to the licensing process.729 The DLC promotes harmonization and reciprocity, although not uniformity,730 when states exchange information concern- ing license suspensions and traffic violations of non-residents and forward them to the state where they are licensed known as the home state. 731 Its motto is “One Driver, One License, One Record”. 732 The home state would treat the offense as if it had been committed at home, applying home state laws to the out- of-state offense.733 Most states voluntarily join the compact, after which it is adopted into state law.734 This compact could provide a platform how driver licenses for L3-5 AVs are harmonized across jurisdictions, as well as a forum for discussion with law enforcement on management of issuing moving violations. b. Non-Resident Violator Compact The Non-Resident Violator Compact (NRVC) 735was created to standardize methods used by the various jurisdictions to pro- cess nonresident violators receiving citations and their failure to appear or otherwise failure to comply with outstanding mov- ing traffic summons.736 Although the enforcement of laws is a state role, the NRVC 737allows member states to assist each other with enforcing driving laws. If a driver is issued a moving viola- tion in another state and they hold a Colorado driver license, for example, the NRVC compact allows them to be released on her own recognizance with the promise that they will appear database would create threats to personal privacy and risk identity theft and fraud. 729 Website page on Committees, AAMVA, https://www.aamva.org/ about/aamva-leadership/committees-working-groups/standing- committees/dlc-nrvc-executive-board. 730 The DLC is “voluntary,” so not all 50 states have adopted it. There has been much Congressional discussion on the pros and cons of voluntary compacts and creating a national driver’s license, with sovereignty and privacy issues. See Roger Cross, House Transportation and Infrastructure, Highways and Transit, AAMVA, Driver’s License Security Issues, Federal Document Clearing House Congressional Testimony, (September 5, 2002) available at https://advance-lexis-com. ezproxy.lib.utexas.edu/api/document?collection=news&id=urn:conten tItem:46P4-CR30-0003-12VG-00000-00&context=1516831. 731 DLC supra note 351. 732 DLC Fact Sheet, Pennsylvania DOT, https://www.dot.state. pa.us/public/dvspubsforms/BDL/BDL%20Fact%20Sheets/fs-dlc. pdf#:~:text=A%3A%20The%20DLC%20is%20a%20compact%20 among%2046,license%20whenapplication%20for%20a%20new%20 license%20is%20made%3B. 733 DLC, supra note 351. 734 Id. For example, Pennsylvania, became a member of the DLC on Jan. 1, 1995 and was adopted into Pennsylvania law as Act 1996-No. 149 on December 10, 1996. 735 Non Resident Voter Comact (NRVC), https://apps.csg.org// ncic/Compact.aspx?id=142. 736 AAMVA Committees. https://www.aamva.org/about/aamva- leadership/committees-working-groups/standing-committees/dlc- nrvc-executive-board. 737 NRVC, https://apps.csg.org/ncic/PDF/Nonresident%20Violator%20 Compact.pdf.

NCHRP LRD 91 61 more than 26,000 pounds (11,794 kilograms), and traveling in two or more jurisdictions, are likely registered under IRP.749 The IRP would be a logical place to manage truck platooning regis- tration issues, where platoons may be comprised of tractors and trailers from different jurisdictions, states and companies. 2. Utilizing the Compacts These compacts and agreements provide a logical forum to begin harmonization processes, and especially in the short term to minimize the effects of differences in definitions between statutes and regulations and provide cross-referencing and other definition delineation to reduce confusion and assist with comity. However, interstate compacts can take years or decades to fully function as they require enabling legislation passed by the states. As these compacts are often administered by a commission with ties to organizations or associations with legal experts, they also have in-house experience and expertise in mitigating bar- riers and conflicts and often work to promote interstate com- merce and cooperation. Whether by model laws, guidance, or promoting compacts and agreements, certain organizations can facilitate communication and cooperation between states. For example, The AAMVA750 has developed model programs in motor vehicle administration, law enforcement, and highway safety. AAMVA represents the state, provincial, and territorial officials in the United States and Canada who administer and enforce motor vehicle laws. AAMVA serves as an information clearinghouse in these areas, acts as the international spokes- person for these interests and, serves as a liaison with other levels of government and the private sector. 751 AAMVA also as- sists with electronic platforms that help states track driver re- cords752 and administers two interstate compacts affect drivers and vehicles: the DLC753 and NRVC754. AAMVA’s members are the public officials who administer the laws governing motor vehicle operation, driver credentialing, and highway safety enforcement.755 a. Utilize FMCSA Practices for Commercial Driver Licensing Another place that provides guidance in harmonization can be seen in commercial driver licensing. For example, the 749 Id. 750 AAMVA website, https://www.aamva.org/about. 751 Id. 752 State to State Verification Service (S2S), https://aamva.org/ technology/systems/driver-licensing-systems/state-to-state- verification-service-(s2s) (notes that DHS will look for S2S to be a part of the plan for REAL ID complaint states). 753 DLC, supra note 351. See also https://www.aamva.org/policy/ policy-positions/driver-license-compact#:~:text=Policy%20 Position%20on%20Driver%20License%20Compact%20AAMVA%20 supports,The%20jurisdiction%20of%20residence%20maintains%20 the%20driving%20record. 754 See (NRVC) supra note 351. See https://www.aamva.org/policy/ policy-positions/non-resident-violators-compact-(nrvc). 755 See supra note 730. the security of DL/ID cards issued by AAMVA’s members.744 Upon issuance of the driver’s license, the DLA would provide specificity regarding the retention of the license, the update and maintenance of driver records, compliance with the laws and regulations relating to highway safety and federal mandates, as well as the exchange of information between member jurisdic- tions. The DLA emerged as it would unify the DLC and NVRC, and would assist in increasing compliance as an AAMVA Compact Compliance Survey indicated that no member juris- diction was in full compliance with either Compact.745 e. Noncommercial License and Vehicle Reciprocity Noncommercial driving privilege reciprocity is governed by the 1943 Inter-American Convention on the Regulation of Inter-American Automotive Traffic746 and the North Atlan- tic Treaty Organization Agreement.747 In general these agree- ments provide reciprocal privileges for persons aged 18 to 75 for one year from date of entry into the United States, for private vehicles. Vehicles must have a registration certificate issued in accordance with the laws of the issuing country, and identify the vehicle and owner on the rear of the vehicle or on the license plate. Each driver must have a valid driver’s license that is trans- lated into English. This convention can be amended to allow reciprocity for AVs that enter into and out of the U.S. f. International Registration Plan for Commercial Trucks The International Registration Plan748 is a registration reciprocity agreement between the 48 U.S. states, Washington, DC, and 10 Canadian provinces that recognizes the registration of commercial motor vehicles issued by other jurisdictions. It was adopted in September 1972 and was last amended in Janu- ary 2024. Motor carriers register with and pay to one jurisdic- tion. The fee is based on the percentage of distance traveled in each jurisdiction according to the fee schedule of the jurisdic- tion. These fees are then sent to the IRP’s clearing house who then distribute to the relevant jurisdictions. The registered motor carriers receive one plate which is an “apportioned plate” and can travel through all IRP member jurisdictions with- out paying any further fees. According to the IRP commercial motor vehicles either alone or used in combination weighing 744 Driver License and Identification Standards, AAMVA, https:// aamva.org/topics/driver-license-and-identification-standards#?wst=4a 3b89462cc2cff2cbe0c7accde57421. (AAMVA is working with an ISO Committee on this card standard, with regard for encryption, digital certificates and security features.) 745 Id. 746 1943 Convention on the Regulation of Inter-American Automotive Traffic, The Organization of American States, https://www.oas. org/dil/treaties_C-11_Convention_on_the_Regulation_of_Inter- American_Auto-Motive_Traffic.PDF. 747 North Atlantic Treaty Organization Agreement, https://www. nato.int/cps/en/natohq/official_texts_17265.htm. 748 International Registration Plan (IRPINC). International Registration Plan, as amended Jan. 1, 2024, available at https://cdn. ymaws.com/www.irponline.org/resource/resmgr/publications/plan_1- 1-24.pdf.

62 NCHRP LRD 91 B. International Harmonization Activities The UNECE, the World Forum for the Harmonization of Vehicle Regulations (WP 29) creates technical rules and is assess ing proposals covering semi-automated and fully auto- mated driving functions.759 Many countries are part of this process and are party to the UN regulations that are promul- gated. The UN regulations have a legal basis in the “Adoption of Uniform Conditions of Approval and Reciprocal Recog- nition of Approval for Motor Vehicle Equipment and Parts (1958 Agreement)760 and it provides that state parties mutually recognize the “type approvals” that are made according to the UNECE Regulations. Harmonized traffic rules that were de- veloped in the UNECE framework can be found in the 1949 Geneva Convention and 1968 Vienna Convention(s) on Road Traffic.761 The UN amended the Vienna Convention of 1968 in 2016 to allow for AVs in traffic with conditions.762 In September 2020, WP.1, the Global Forum for Road Traffic Safety, voted for an amendment to the Vienna Convention which shall facilitate the responsible use of ADS. A new Article 34b provides that the driver requirement “is deemed to be satisfied” while the vehicle is using an ADS which complies with (i) domestic technical regulations, and any applicable international legal instrument concerning wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled vehicles, and (ii) domestic legislation on operation. In January 2022, 53 European coun- tries amended the Vienna Convention on Road Traffic (1968), to insert two new definitions and the proposed article (34b).763 Due to these changes L3 autonomous driving would arguably be authorized in Europe under the Vienna Convention (1968). 759 Automated Driving, UNECE, https://unece.org/automated- driving#accordion_3. 760 Agreement concerning the Adoption of Uniform Conditions of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts (Mar. 20, 1958, 335 U.N.T.S. 211). (Under the third revision of Oct. 20, 2017, Agreement concerning the Adoption of Harmonized Technical United Nations Regulations for Wheeled Vehicles, Equipment and Parts which can be Fitted and/or be Used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of these United Nations Regulations, E/ ECE/TRANS/505/Rev.3). 761 Convention on Road Traffic, Sep. 19, 1949, 3 U.S.T. 3008, 125 U.N.T.S. 3; Convention on Road Traffic, Nov. 8, 1968, 1042 U.N.T.S. 17.(Art, 8(1) and (5) of the Convention requires every vehicle to have a driver, who must be able to control it at all times). 762 Press Release, UNECE, UNECE paves the way for automated driving by updating UN intentional convention, (March 23, 2016) https://unece.org/press/unece-paves-way-automated-driving- updating-un-international-convention. See Vienna Convention Amendments, eff. Mar. 23, 2026, https://unece.org/DAM/trans/ doc/2014/wp1/ECE-TRANS-WP1-145e.pdf. 763 See UKG, Oct. 12, 2021, Explanatory memorandum: Proposal of Amendment to Art. 1 and Art. 34 BIS of the 1968 Convention on Road Traffic, https://www.gov.uk/government/publications/proposal- of-amendment-to-article-1-and-new-article-34-bis-of-the-1968- convention-on-road-traffic-ms-no52021. FMCSA worked with the states and AAMVA in 2014 to im- prove licensing, testing and training requirements for com- mercial drivers. FMCSA sets minimum standards for gaining a license, but states can set fees, processes, renewal and reinstate- ment procedures, and other checks, including augmenting the processes with their own skills and knowledge tests. b. Utilizing Organizations AASHTO and AAMVA as the two major entities represent- ing state agencies that develop, fund and manage the trans- portation systems and drivers also provide a natural space to assist with harmonization efforts. As an example, In July 2022 AAMVA released a third edition of Safe Testing and Deploy- ment of Vehicles Equipped with ADS Guidelines (SAE L3 and above).756 The report details recommendations for states for vehicles, driver licensing, law enforcement and other consid- erations, including cybersecurity, data collection, connected vehicles, platooning, automated delivery vehicles and low-speed automated shuttles and jurisdictional guidelines for safe test- ing and deployment of ADS vehicles and recommendations for manufacturers. AAMVA stated it was neutral on jurisdictional regulation of ADS technology. AAMVA also noted that a suc- cessful path to safe testing and deployment of technology must include appropriate government oversight developed with strong stakeholder engagement formed through partnerships. The administrative recommendations suggest identifying a lead agency and person to manage ADS-equipped vehicle commit- tees, developing strategies to address testing and deployment, examining jurisdictional laws to identify barriers, and utilizing NHTSA guidance. Each section provides a synopsis, recom- mendations, and benefits/challenges to their implementation. AAMVA also finalized a foreign reciprocity resource guide for its membership in October 2001.757 This project compiled informa tion on foreign driver’s license documents, practices and procedures that will enable its members to make more informed decisions when entering into bilateral agreements with foreign countries. It covers how to deal with foreign driver’s license as- sessment and verification of the person’s license. Topics con- tained in the resource guide are Legal Considerations; Model and Existing Driver’s License Reciprocity Agreements; Issues to Consider before entering into a reciprocity agreement; Model and Existing Enabling Legislation; Driver Licensing Standards; and Foreign Driver’s License Assessment and Verification of Driver Status.758 AAMVA has also put together a working group that is looking at cross-border coordination with Canada and Mexico and where it is expected that reciprocity of movement will continue with this new vehicle technology. 756 Safe Testing and Deployment of Vehicles Equipped with Automated Driving Systems Guidelines, AAMVA, (July 2022), https://www.aamva. org/assets/best-practices,-guides,-standards,-manuals,-whitepapers/ safe-testing-and-deployment-of-vehicles-equipped-with-automated- driving-systems-guidelines,-edition. 757 See Agreement, dated Jan. 8, 2003, https://www.aamva.org/ topics/driver-license-foreign-reciprocity?#?wst=4a3b89462cc2cff2cbe0 c7accde57421. 758 Id. See also supra note 730.