Multistate Coordination and Harmonization for AV Legislation (2024) / Chapter Skim
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Pages 37-58
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From page 37... ...
NCHRP LRD 91 37 light. In this instance, the ASDE may be ultimately held liable for such offenses as ASDE is the entity that applied for authorization of the AV.
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38 NCHRP LRD 91 Many states have adopted SAE J3016 terminology into statute. SAE J3016 however, is not a safety standard, but a terminology standard that defines some combinations of behaviors as levels, without taking into account whether the result will be safe in practice.455 For example, a L3 AV may change into many modes over one vehicle trip.456 The ULC's UAOVA incorporated SAE J3016 components but made changes for legal clarity to ADS, "dedicated automated vehicle", DDT, MRC, and "operate".457 ULC in its comments to its definition of AV noted it had excluded vehicles that had only a drive assistance system, because this was designed with expectation that a human driver would monitor the road, even when the system was steering, accelerating and braking.
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NCHRP LRD 91 39 operating L3-5 AVs, not for operating L2 AVs.467 States that regulate L3 AVs as "fully automated vehicles" (but not L2) are missing this safety and policy gap of L2+ that industry intends to expand upon.468 SAE J3016 does not allow for an AV to be in both levels simultaneously.469 Some experts have even suggested replacing the SAE J3016 levels in state laws with four operational modes due to thorny liability questions over when and how an ADS shifts duties to the human driver.
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40 NCHRP LRD 91 public notice on possible case law development for AV civil and criminal liability questions. Fairness to all stakeholders, including test drivers like one charged with negligent homicide478 and pedestrians like the female pedestrian who died when struck by self-driving car must dominate these questions as law and policy develops to accommodate AV innovation and provide legal certainty to all parties.
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NCHRP LRD 91 41 2021 and May 15, 2022, including six fatal incidents.491 One can see the difference between the L2 and L3 results here, but many factors are involved, such as volume of AVs on the road, volume of passengers, and time and geographical limits on L3 use on public streets. As more AV makers seek and achieve access to more public roads,492 adding to the existing AVs on public roads,493 the traffic mix will change and safety may become a challenge for local jurisdictions, especially for emergency responders494 and law enforcement.495 There is no specific tort case law containing principles for allocating fault and liability among all the parties.
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42 NCHRP LRD 91 own safety standards.503 When issues arise as to whether state law claims are preempted by the NHTSA, express and implied preemption issues can complicate this unclear legal arena. As AVs deploy on public roads, the absence of a federal standard specific to an AV device may create confusion as to whether common law tort claims are wiped out,504 although NHTSA retains for states the state domain over common law claims.505 More clarity may be needed in the future as to when federal standards expressly preempt state law claims, especially if courts must struggle with how software fits into "negligent design" case law versus design defects506 in strict liability claims.
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NCHRP LRD 91 43 federal government has not adopted the vehicle type-approval regulation of EU countries like Germany,516 which means that it may be more permissive in allowing OEMs to test level 3 – 5 AVs on public roads in the USA. As noted in section 4 several states have already banned the ability for local government or political subdivisions to control or regulate AVs.517 There are legal and policy reasons for and against this municipal preemption.
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44 NCHRP LRD 91 type of policy removes direct voter accountability and responsiveness at a local level, and removes ability of local government to manage local streets and curb irresponsible behavior by AV developers.530 This trend may be changing, as seen in the passage of Pennsylvania's HB 2398 that became law in 2020. There is also the potential conflict that may emerge around FMVSS standards surrounding AV performance.
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NCHRP LRD 91 45 ing a system failure due to transmission problems, or the ADS may fail to send alerts to the remote driver at all.538 Remote operation creates a new path for seller negligence in which the product must not be unreasonably dangerous during normal use. Manufacturers who install industry-standard automation technology may benefit from state of the art defenses.
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46 NCHRP LRD 91 injury, property damage, or pain and suffering resulting from the intended use of an unsafe or defective product. How will AV cases incorporate the three theories of legal recovery under product liability law: Recovery under Manufacturer's Defect, Recovery under Insufficient/Unclear warnings or instructions, and Recovery under Design Defect is not yet known.
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NCHRP LRD 91 47 The most obvious issue in such proposals is who will be liable. There are several possibilities: the automotive company (car manufacturer)
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48 NCHRP LRD 91 partial-automation technology when a new car is delivered and when software is updated.571 Confusion over AV automation capabilities and levels can create many problems, which states must address. As an example although plaintiffs sued Tesla for ADAS-AV related fraud,572 negligent misrepresentation and violation of the California False Advertising Law (Cal.
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NCHRP LRD 91 49 device cases in the future for legal direction on how to treat software defects that cause severe injuries or fatalities and not just economic loss. For example, in Louisiana, in Corley v.
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50 NCHRP LRD 91 mandatory legal car insurance requirements. Although states have maintained this regulatory framework for decades, the federal government could, as with other areas, rescind the delegation and create a federal regulatory framework, as it has done in the banking arena.
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NCHRP LRD 91 51 saying that it is a motor vehicle on which an ADS is installed.608 Contrast that with Arizona, which has classified FAV as an SAE defined L4 or 5 in automation,609 as have some other states.610 Using SAE levels of automation611 may be problematic for legal purposes as there is a difference between strict rules and flexible conduct standards.612 The J3016 generally assigns levels based on a manufacturer's design intent:613 This means the manufacturer determines the assignment of automation level, which is subjective and varies by company, impeding legal certainty.614 The NTMVSA and NHTSA's regulations require vehicle and equipment manufacturers to certify that their vehicles or vehicle equipment comply with all applicable FMVSS.615 A vehicle manufacturer, distributor, dealer, rental company, or repair business generally may not knowingly make inoperative any part of a device or element of design installed in or on a motor vehicle in compliance with an applicable FMVSS. NHTSA has the authority to issue regulations that exempt regulated entities from the make inoperative provision616 if the Agency finds that the exemption would be consistent with motor vehicle safety and with 49 U.S.C.
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52 NCHRP LRD 91 Arizona operators must submit a law enforcement interaction plan that addresses the protocol developed by the Arizona Depart ment of Public Safety and certifies to AZDOT that the vehicle meets certain standards and is titled, registered, licensed and insured. To add to the confusion, the same Arizona law states: When engaged, the ADS is considered the driver or operator of the autonomous vehicle for the purpose of assessing compliance with applicable traffic or motor vehicle laws and is both: 1.
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NCHRP LRD 91 53 with limited exceptions,639such as a limited private right of action for certain privacy violations. The bill would be enforceable by the FTC and by state attorneys general, as well as state privacy authorities in civil actions.640 This bill would also give consumers rights of access, correction, deletion, opt out, and portability.
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54 NCHRP LRD 91 so this may be why the states have moved to bridge the gap on data privacy legislation. Although federal legislation proposed on AVs658 has included a privacy component, these bills did not pass.
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NCHRP LRD 91 55 the expectation of privacy (not trespass) has continued to evolve – as have our technologies that track "the whole of [our]
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56 NCHRP LRD 91 and/or data sharing, profiling, consent, sensitive data, children's rights, and privacy policies.684 While the WPA never became law, it appears to have influenced bills in various states.685 Three of the six 2023 states (Indiana,686 Iowa,687 and Tennessee688) have passed bills with requirements that are more business-friendly than Virginia's law.
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NCHRP LRD 91 57 as well as international laws697 such as the GDPR in EU. Privacy regimes and data protection in various states and countries are not uniform, but the tech industry has already been wrestling with disclosure, breaches and consumer consent issues in the software arena.
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58 NCHRP LRD 91 updated its general data breach notification law in HB 5310708 and Texas updated its law in June, 2021.709 Both Utah and Connecticut have enacted laws providing that certain types of cybersecurity programs/requirements may be the basis for an affirmative defense against data breach lawsuits710 These laws, as well as Ohio's law,711 include national and international cybersecurity frameworks that satisfy the laws' requirements, such as: NIST SP 800-171,712800-53713 and 800-53a;714 the ISO/IEC 27000 family of standards;715 the FedRAMP Security Assessment Framework;716 the Center for Internet Security's Critical Security Controls for Effective Cyber Defense framework;717 708 Connecticut Public Act 21-59 (2021) , https://www.cga.ct.
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