Multistate Coordination and Harmonization for AV Legislation (2024)

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NCHRP LRD 91 3 MULTISTATE COORDINATION AND HARMONIZATION FOR AV LEGISLATION Lisa Loftus-Otway and Susanna Gallun, Center for Transportation Research at the University of Texas at Austin, Austin, TX INTRODUCTION A. Project Purpose and Work Approach This project was commissioned to provide guidance for multi state coordination and harmonization for Automated Vehicle (AV) legislation for Level 3 through 5 vehicles. The project: • Reviewed federal and state statutes, regulations, executive orders, memos, policy documents and other materials on AV1 developed by federal agencies, state and local agencies and juris dictions, and other parties to gain a baseline per- spective and intel ligence on the current state of play. • Conducted a literature search within law journals and industry media. • Gathered case law and collated this around thematic areas and identified where terminology, legal doctrines, and other key regulatory issues are discussed in dicta. • Reviewed existing compacts in place governing driver licensing, vehicle registration. Reviewed the Uniform Law Commission’s (ULC) Draft Uniform Automated Operation of Vehicles Act (UAOVA) developed in 2019 and Society of Automotive Engineers (SAE) J3016: Taxonomy and Defini- tions for Terms Related to On-Road Motor Vehicle Auto- mated Driving Systems. • Identified conflicts and barriers that may impact harmoni- zation efforts. Researchers utilized a key list of AV regulation issues that were delineated by federal/state or other domain to develop this structure. Within this matrix, researchers identified areas where United States Code (U.S.C.), Code of Federal Regulations (C.F.R.), Interstate Compacts, or model law areas existed, along with intersecting traditional state areas of control. Figure 1 shows the major domains traditionally regulated by the federal government and state governments. In short, the federal gov- ernment traditionally regulates the vehicles and equipment, and the states regulate the human driver and vehicle operation. The interplay of these relationships and obligations may change over time as AV deployment occurs. Due to the federalist structure of the US government, the federal government plays a nonexclusive role in regulating 1 Note that any mention of “AV” refers to “automated vehicle” not “autonomous vehicle.” This is discussed infra. Not all driving automation systems are “autonomous” but may be deemed “cooperative”. Confusion over this term persists. For more see § 7.1.1. of the SAE J3016:2021, SAE J3016: Apr. 2021, SAE J3016 Recommended Practice: Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles, https://www.sae.org/standards/content/j3016_202104/. the driving of vehicles in conjunction with the states. Under the preemption doctrine, if state law and federal law conflict, fed- eral law displaces, or preempts, state law, due to the Supremacy Clause (US Const. art. VI, §  2.). This means that the United States has traditionally carved out certain duties for the federal government and for the states in the regulation of driving and vehicles. In many ways, the issues and areas identified within the American Association of Motor Vehicle Administrators’ ( AAMVA’s) 2022 report and TRB’s NCHRP Web-Only Docu- ment 2532 report remain much the same in identifying chal- lenges, conflicts, barriers and areas that may translate for harmonization without significant statutory involvement. This review of law journal articles from 2014-2022 found no articles that discussed harmonization between jurisdictions in any sub- stantive way.3 Most of the documents reviewed did not focus on the current needs of pedestrians and cyclists—with the excep- tion of reports by National Association of City Transportation Officials (NACTO)4 and Pedestrian Bike Information Center (PBIC).5 To contextualize and frame decision-making, researchers utilized definitions of harmonization, conflict, and barriers from Merriam-Webster and legal dictionaries. (See Table 1.) The review of harmonization that was presented in NCHRP Web-Only Document 253, Vol 3 was also used. AVs in the United States are currently regulated by an in- consistent patchwork of state laws and executive orders, and no federal law. In the interests of spurring advances, the federal government has hitherto chosen not to heavily regulate AVs, but rather set high-level policy goals and foster technological innovation. Therefore, at the moment the United States does not 2 Tammy E. Trimble, Lisa Loftus-Otway, Susanna Gallun, et al., NCHRP Web-Only Document 253: Implications of Connected and Automated Driving Systems, Vol: 3 Legal Modification Prioritization and Harmonization Analysis, (Transportation Research Board of the National Academies of Sciences, Engineering and Medicine, 2018). 3 Articles focused upon: overview of AVs and challenges therein, products and state tort liability, challenges to remedy issues with over- the-air software updates in current vehicles and potential safety implications, determining ‘fault’ in a crash, failure to comply with standards, manufacturer liability, artificial intelligence challenges, including reasonable robot standards, programming and software challenges, cybersecurity challenges, critiques on congressional acts, surveys and roadmaps on legal issues, competing visions of autonomous futures, discrimination, privacy and cybersecurity. 4 NACTO, Blueprint for Autonomous Urbanism: Second Edition, (Aug. 27, 2019). 5 PBIC, Automated and Connected Vehicles, https://www.pedbikeinfo. org/topics/automatedvehicles.cfm.

4 NCHRP LRD 91 Figure 1: Interplay between federal and state domains for AVs Federal Domain • Vehicle Safety Standards • Interstate Commerce • Interstate/International Mobility • Cybersecurity • Product Liability • Privacy • Communication • Interstate Law Enforcement • Federal Agency Roles & Responsibilities State Domain • Registration • Driver Licensing • Vehicle Inspection • Personal Injury • Personal Liability • Vehicle and Driver Insurance • Traffic Laws: Civil and Criminal • Law Enforcement • State Agency Roles & Responsibilities Table 1: Definitions: Conflict, Barrier, and Harmonization. Term Merriam-Webster Black’s Law Dictionary World Law Dictionary Conflict Noun: competitive or opposing action of incompatibles: antagonistic state or action (as of divergent ideas, interests, or persons) Verb: to be different, opposed, or contradictory: to fail to be in agreement or accord Friction that happens when incompatible parties or differences. To be incompatible (where two things cannot exist together) Barrier Noun: something material that blocks or is intended to block passage of something immaterial that impedes or separates (behavioral and trade barriers are given as examples) Something that prevents movement, access, communication or understanding Harmonization Verb: to bring into consonance or accord Changing differences on different measurements and procedures or schedules to make them uniform and compatible. The act of bringing the laws of multiple jurisdictions in line with each other

NCHRP LRD 91 5 • Providing a platform for a network effect to function effec- tively for A-Maas use cases and transit provision and offer- ing mobility equity options to consumers by facilitating the deployment of AVs; • Ensuring vulnerable road users7 are taken into consider- ation in developing legislation and regulations. There are, however, potential shortcomings from harmoni- zation, which flow-out from the nascent nature of this technol- ogy which is still evolving. These include: • Creating unforeseen problems if rules are harmonized too early and these rules are inappropriate, inadequate or have major flaws, and may take time to remedy due to states that have bicameral legislatures for example. • Hamper innovation by restricting a product, technology or industry or leveling onerous costs and/or time barriers of conflicts. • Harmonization may be unnecessary if technology can ad- just to changing parameters or requirements through soft- ware coding or over-the-air updates when entering a new jurisdiction with a differing legal requirement. 2. Longer Term: Consequences of Not Harmonizing There are longer term implications to not harmonizing laws. First and foremost, the current patchwork of laws with no federal input creates risks for industry and the general public. The cur- rent vehicle and driver regulation system is over a hundred years old and has had stable, well-defined processes over the past fifty years. Consumers understand the federal and state processes for driving a vehicle, earning a driver’s license, insuring a vehicle, deter mining vehicle liability and navigating the purchase of items and services, such as extended warranties etc. Advanced driver assistance systems (ADAS) L1-2 and recently L2+ that are available on vehicles today may create a false perception of safety if not sufficiently described to the user of the vehicle, especially in terms of understanding the concept of having to take control of the vehicle as driving conditions change. The public may need to be educated on the differences between L2 and L3 to reduce con- fusion.8 In addition, as vehicles with L3 and above are deployed without pedals or a steering wheel, providing law enforcement with the ability to know that this vehicle is an AV L3 and above type vehicle will be required for numerous reasons: (i) inter- action with passengers in the vehicle, (ii) developing probable cause to stop a vehicle and (iii) inter facing with the opera ting systems of the vehicle if an emergency stop is necessary. For the traditional areas of vehicle safety in terms of design, hardware and software and manufacturing standards, federal preemption in this area will very likely be necessary to create a playing field for manufacturers. Finally harmonization efforts may be necessary to incorporate certification and other stan- 7 Vulnerable road users are often pedestrians, those on bicycles, wheelchair users, children, and older adults. 8 L2+ is not an SAE term, yet it appears on industry sites, confusing many. Understanding L2+ in Five Questions, Mobileye. com, (July 22, 2020), https://www.mobileye.com/blog/understanding- l2-in-five-questions/. have a federal regulatory framework for them. Although fed- eral legislation has been proposed, none has yet been enacted regarding the full deployment of AVs on public roads.6 The National Highway Transportation Safety Administra- tion’s (NHTSA) previously released AV Policy guidance stressed innovation over regulation. However, with full public deploy- ment of Level 3–5 AVs on public roads, the goal of encouraging innovation must be balanced with the need for interstate legal certainty, safety, and consistency, requiring a reevaluation of current legal regimes and principles, including that of federal preemption. As AV technology at Level 3 (L3) and above continues to evolve and to grow in market share within vehicles there will be changes to current legal structures that will be necessary. Whether this requires full-harmonization, or the use of existing compacts or agreements and reciprocity will have to be deter- mined by the states, based upon any federal preemptive direc- tions that may be taken. 1. Placing Harmonization Into this Context The current patchwork approach to AV legislation has been driven from multiple points of perspective. The earliest legisla- tion enacted from 2011-2016, was a reaction to the perspective of imminent deployment that was permeating news media and in the large tranches of funding that venture capital, software developers, Original Equipment Manufacturers (OEM) and the ride-hailing companies were investing in AVs. The approach varied dramatically, with California adopting a highly regulated approach to testing and deployment on a defined and geofenced roadway, versus a more laissez faire approach that Nevada, for example, enshrined within its 2012 law that allowed deployment on its public roadways. At the federal level, NHTSA’S approach came from a policy background, with no federal statute to drive its traditional regulatory approach. Recent iterations of state legislation have attempted to encapsulate specific definitions around the technology, often enshrining definitions from the SAE J3016 levels, the ULC’s 2019 UAOVA, all while trying to provide a space for testing and deployment in what has been a fast-moving technology space. This led to calls for harmonization efforts to begin, to ensure the seamless movement of vehicles across state lines, and to cre- ate a consistent playing field for manufacturers, transit opera- tors and the general public who would purchase or utilize these vehicles. The benefits of harmonization include: • Establishing consistency and clarity across political bound- aries to reduce complexity for product development, manu- facturing and deployment, potentially reducing costs; • Improving and clarifying enforcement; • Facilitating a seamless system for the free flow of goods, commerce, and services, and assisting the potential to uti- lize platooning, which is anticipated to enhance safety, and reduce emissions; 6 H.R. 3388 and S. 1885 (115th Cong 2017-2019.), H.R. 8350 (116th Cong. 2019-2021), and H.R. 3711 (117th Cong.) 2022-2023.