[Federal Register Volume 85, Number 245 (Monday, December 21, 2020)]
[Notices]
[Pages 83143-83152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28107]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0119]


Notice Regarding the Applicability of NHTSA FMVSS Test Procedures 
to Certifying Manufacturers

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Notice of interpretation; request for comments.

-----------------------------------------------------------------------

SUMMARY: The National Traffic and Motor Vehicle Safety Act (Safety Act) 
prohibits the sale, manufacture for sale, import or introduction into 
interstate commerce of a motor vehicle or item of motor vehicle 
equipment, unless fully compliant with all applicable Federal motor 
vehicle safety standards (FMVSS). The FMVSS set a threshold of 
performance that a vehicle or equipment item must attain, at a minimum, 
to meet the need for safety. The Safety Act also requires a 
manufacturer or distributor of a motor vehicle or motor vehicle 
equipment to certify that the vehicle or equipment complies with 
applicable FMVSS. This notice reestablishes NHTSA's longstanding 
position that the FMVSS test conditions and procedures apply to NHTSA's 
compliance testing, and that manufacturers are not required to ensure 
that their vehicles are designed in such a manner as to ensure that the 
vehicles are capable of being tested pursuant to such standards as a 
condition of self-certification. This notice also discusses NHTSA's 
enforcement with respect to vehicles with novel or innovative designs 
that preclude them from being tested for FMVSS compliance using NHTSA's 
FMVSS test procedures. This notice supersedes prior contrary statements 
the Agency has made--including those in NHTSA's 2016 letter of 
interpretation to Google, Inc.--stating that manufacturers could not 
validly certify FMVSS compliance unless NHTSA could verify compliance 
using the FMVSS test procedures.

DATES: NHTSA is inviting public comment on this document. The comment 
closing date is January 20, 2021. NHTSA will post a public response to 
major concerns raised in the comments.
    You may submit comments to the docket number identified in the 
heading of this document by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: 1200 New Jersey Avenue SE, West 
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays. To be sure someone is 
there to help you, please call (202) 366-9322 before coming.
     Fax: 202-493-2251.
    Regardless of how you submit your comments, please be sure to 
mention the docket number of this document.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation section of this document.
    Note that all comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act discussion below regarding 
documents submitted to the agency's dockets.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or the street 
address listed above. Follow the online instructions for accessing the 
dockets.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an organization, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.dot.gov/privacy.html.

FOR FURTHER INFORMATION CONTACT: Daniel Koblenz or Kerry Kolodziej, 
Office of Chief Counsel, Telephone: 202-366-2992, Facsimile: 202-366-
3820. The mailing address for these officials is: National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, 
DC 20590.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The National Traffic and Motor Vehicle Safety Act \1\ (the Safety 
Act) requires that motor vehicles meet two separate requirements before 
they may be sold or otherwise introduced into interstate commerce in 
the United States: (1) they must be compliant with the FMVSS, and (2) 
they must be certified as compliant by a manufacturer exercising 
reasonable care.\2\ In a 2016 letter of interpretation to Google, 
Inc.,\3\ NHTSA stated, without substantive discussion, that 
manufacturers could not validly certify vehicles as compliant with 
FMVSS unless the vehicles were capable of being tested using the test 
procedures associated with those standards.\4\ This interpretation 
imposed major design restrictions on motor vehicles, because it 
effectively required manufacturers not only to certify that a motor 
vehicle complies with the substantive requirements of all applicable 
FMVSS, but also to design the vehicle in such a way that NHTSA would be 
able to conduct each element of each test procedure specified within 
each applicable regulation.
---------------------------------------------------------------------------

    \1\ 49 U.S.C. 30101, et seq.
    \2\ 49 U.S.C. 30112, 30115.
    \3\ Letter to C. Urmson, Google (Feb. 4, 2016), https://www.nhtsa.gov/interpretations/google-compiled-response-12-nov-15-interp-request-4-feb-16-final.
    \4\ For purposes of this notice, the term ``test conditions and 
procedures'' refers to the preparatory steps NHTSA takes prior to 
measuring the performance of a motor vehicle or item of motor 
vehicle equipment when checking for FMVSS compliance. NHTSA designs 
test conditions and procedures both to ensure that vehicle 
performance is measured under realistic driving conditions 
(representative of the real-world situation posing the safety risk), 
and to eliminate or control variables that reduce the objectivity of 
the compliance test. Test procedures are incorporated into the 
regulatory text alongside the performance requirement with which 
they are associated. NHTSA's Enforcement office publishes test 
procedures on NHTSA's website to provide more detail into how NHTSA 
conducts a compliance test. https://www.nhtsa.gov/vehicle-manufacturers/test-procedures.
---------------------------------------------------------------------------

    It should be noted the 2016 Google interpretation addressed a 
situation involving a novel, theoretical design of a vehicle that 
lacked driving controls, including the absence of a steering wheel and 
a brake pedal. Heretofore, the

[[Page 83144]]

FMVSS were designed such that their threshold requisite levels of 
performance were defined in the context of the test procedures and 
conditions set forth in the standards,\5\ measured under those 
procedures and conditions, and applied to the vehicle in the assessment 
of compliance. However, in the situation presented by the Google 
inquiry, certain test conditions or procedures could not be conducted 
on the vehicle as specified in the FMVSS. For example, in FMVSS No. 
126, Electronic stability control, the test procedures specify the use 
of a steering machine test device that makes precise movements of the 
steering wheel in order to perform the ``sine with dwell'' maneuver. 
This is not possible to do on a vehicle with no steering wheel.
---------------------------------------------------------------------------

    \5\ Some FMVSSs also specifically require certain items of 
equipment, such as a sun visor (FMVSS No. 201) or a brake pedal 
(FMVSS No. 135).
---------------------------------------------------------------------------

    Faced with the question of how such procedures are implicated by 
novel designs, the 2016 Google interpretation determined that it is not 
possible for a manufacturer to certify compliance with a standard if 
NHTSA does not ``have a test procedure or other means of verifying such 
compliance.''
    Upon further consideration of the question of what the Safety Act 
requires of certifying manufacturers, NHTSA believes the 2016 Google 
Interpretation construed the certification requirement too 
restrictively, and was not in full accordance with the Safety Act or 
prior Agency interpretations of the statute. Previous NHTSA 
interpretations of the Safety Act held that manufacturers are not 
required to test a vehicle's performance using the test conditions and 
procedures in an FMVSS to certify compliance with a standard. Rather, 
interpretations held the test conditions and procedures in an FMVSS 
simply establish the means by which the Agency would evaluate 
compliance with an applicable FMVSS. Manufacturers were free to use 
other methods to certify the compliance of their products, provided 
that the vehicles met the standards when NHTSA tests the vehicles using 
the procedures, and under the conditions specified in the FMVSS.
    The certification requirement set out in the Safety Act, states 
that ``[a] manufacturer or distributor of a motor vehicle or motor 
vehicle equipment shall certify to the distributor or dealer at 
delivery that the vehicle or equipment complies with applicable motor 
vehicle safety standards prescribed under this chapter.'' It also 
states that ``[a] person may not issue the certificate if, in 
exercising reasonable care, the person has reason to know the 
certificate is false or misleading in a material respect.'' \6\ In 
NHTSA interpretations prior to the 2016 Google interpretation, the 
Agency had interpreted this certification requirement such that 
manufacturers were permitted to certify vehicles using means other than 
that specified in an FMVSS at issue. NHTSA specifies test conditions 
and procedures in the FMVSS and on NHTSA's website to provide 
transparency, clarity and notice as to how NHTSA will measure the 
requisite performance in its compliance tests. For example, if a 
standard establishes performance requirements specifying that a vehicle 
must provide occupant crash protection by limiting the crash forces 
measured by a particular test dummy used in a crash test specified in 
the standard, the standard's test procedures provide the conditions and 
procedures NHTSA will use to assess conformance to the performance 
requirements.
---------------------------------------------------------------------------

    \6\ 49 U.S.C. 30115.
---------------------------------------------------------------------------

    Test procedures, and the conditions under which they are conducted, 
serve an important role in the FMVSS: They provide context to the 
performance requirement and provide notice to the industry of NHTSA's 
methodology for determining compliance with the minimum performance 
standards established in the FMVSS. However, they are not performance 
requirements themselves. Although performing the test in the manner the 
FMVSS directs is one path a manufacturer may follow when certifying 
compliance with an FMVSS requirement, manufacturers are not required to 
use the test conditions and procedures in the standard to certify 
compliance. A manufacturer may base its certification on, for example, 
simulations or engineering analyses if it exercised reasonable care in 
certifying that the vehicle would meet the standard when tested by 
NHTSA using the standard's test conditions and procedures.\7\
---------------------------------------------------------------------------

    \7\ NHTSA has also stated that the reasonableness of the basis 
for certifying depends on many factors, including the resources 
available to the manufacturer. For example, a small manufacturer's 
efforts to certify compliance might not be held to the same level as 
a large manufacturers' efforts to ascertain its vehicles' 
compliance.
---------------------------------------------------------------------------

    The issue addressed by this notice, and by the 2016 Google 
interpretation, regards the situation where NHTSA is not able to test a 
vehicle in accordance with the FMVSS test conditions and procedures due 
to its design. The Agency stated, in part, that a manufacturer cannot 
validly certify a vehicle as compliant unless NHTSA can perform 
compliance testing using its FMVSS test conditions and procedures. The 
impact of this new interpretation was effectively to convert the FMVSS 
test conditions and procedures from the method by which NHTSA validates 
FMVSS compliance to the only valid method of certification. In other 
words, per the 2016 Google Interpretation, vehicles on which the FMVSS 
test conditions or procedures cannot be run, such as vehicles that 
operate using an Automated Driving System (ADS) \8\ and that are not 
equipped with conventional manual controls necessary for testing, could 
not be certified as FMVSS compliant. Instead, the 2016 Interpretation 
concluded that manufacturers of these unique vehicles would either have 
to pursue an exemption from certain FMVSSs or wait until the Agency 
issued amendments to the FMVSS test conditions and procedures 
accommodating the new designs.
---------------------------------------------------------------------------

    \8\ For purposes of this notice, Automated driving system (ADS) 
means the hardware and software that are collectively capable of 
performing the entire dynamic driving task on a sustained basis, 
regardless of whether it is limited to a specific operational design 
domain. SAE International (SAE) J3016, ``Taxonomy and Definitions 
for Terms Related to On-Road Motor Vehicle Automated Driving 
Systems.'' ADS refers to SAE driving automation levels 3, 4, and 5.
---------------------------------------------------------------------------

    Following the issuance of 2016 Google Interpretation, some 
manufacturers continued to certify as compliant vehicles that are 
unable to be precisely tested in accordance with NHTSA's test 
procedures, while other manufacturers felt restricted from doing so.\9\ 
Thus, NHTSA decided that it was important to revisit this issue.\10\
---------------------------------------------------------------------------

    \9\ See Nuro, Inc.; Grant of Temporary Exemption for a Low-Speed 
Vehicle With an Automated Driving System, 85 FR 7826, 7834-36 (Feb. 
11, 2020) (discussing request from Nuro, Inc. for an exemption from 
portions of FMVSS No. 111 test procedures).
    \10\ Id. at 7834-35 (indicating that ``NHTSA intends to clarify 
the application of test procedures in a subsequent notice'').
---------------------------------------------------------------------------

    As discussed in today's notice, NHTSA has revisited the issues 
raised in the 2016 Google Interpretation, and determined that some of 
the views articulated in that interpretation were premised on an 
erroneous reading of the Safety Act's certification requirement. While 
the manufacturer of a motor vehicle must produce vehicles that comply 
with all applicable FMVSS and must exercise reasonable care in 
certifying compliance, the Safety Act does not require that a 
manufacturer ensure that NHTSA can validate the manufacturer's 
certification through the FMVSS test conditions and procedures when it 
certifies the vehicle.\11\
---------------------------------------------------------------------------

    \11\ See 49 U.S.C. 30115(a).

---------------------------------------------------------------------------

[[Page 83145]]

    Accordingly, NHTSA is rescinding the portions of the 2016 Google 
Interpretation stating that manufacturers must ensure that NHTSA could 
conduct the FMVSS test procedures on the vehicle using the test 
conditions and procedures specified in the standard. Instead, the 
Agency clarifies that for those vehicles with designs that preclude 
testing under existing FMVSS test conditions and procedures, a 
manufacturer acting in good faith and exercising reasonable care may 
certify the vehicle as compliant even if the Agency cannot conduct the 
exact test procedure set forth in the standard. NHTSA's decision to 
rescind portions of the 2016 Google Interpretation, and a brief 
explanation of how NHTSA may continue to enforce the requirements of 
the Safety Act and regulations with respect to vehicles that cannot be 
tested using NHTSA's test procedures, are discussed below.

II. Background

a. Safety Act

    The Safety Act authorizes NHTSA to regulate the performance of 
motor vehicles and motor vehicle equipment through the issuance and 
enforcement of FMVSS. The Safety Act defines a ``motor vehicle safety 
standard'' as ``a minimum standard for motor vehicle or motor vehicle 
equipment performance.'' \12\ Per the Safety Act, each standard must be 
practicable, meet the need for motor vehicle safety, and be stated in 
objective terms.\13\ Currently, there are in force more than 60 FMVSS 
that regulate a wide variety of aspects of vehicle performance. These 
standards are codified at 49 CFR part 571.
---------------------------------------------------------------------------

    \12\ 49 U.S.C. 30102(a)(10).
    \13\ 49 U.S.C. 30111(a).
---------------------------------------------------------------------------

    While all FMVSS necessarily set performance standards that vehicles 
or equipment must meet, the FMVSS also include test conditions and 
procedures that provide context to the required performance. For 
example, in the FMVSS No. 208 occupant protection requirements for the 
50th percentile adult male dummy belted test (S5.1.1), the performance 
standard is the maximum permissible level of certain injury metrics 
(e.g., chest deflection) that are experienced by a dummy in a crash of 
up to 35 mph, whereas the test conditions and procedures describe the 
circumstances under which NHTSA will measure these metrics. The test 
conditions and procedures describe how NHTSA prepares a vehicle for 
compliance testing and measures its performance to determine whether it 
complies with the standard. NHTSA designs test conditions and 
procedures to ensure that vehicle performance is measured under 
realistic operating conditions representative of the real-world 
situation posing the safety risk, that tests and test results are 
repeatable and reproducible, that manufacturers are provided with 
notice of how tests will be performed, and to maintain the objectivity 
of the Agency's compliance testing.
    It is critical that the FMVSS set forth procedures that are 
designed so that ``the question of whether there is compliance with the 
standard can be answered by objective measurements and without recourse 
to any subjective determination.'' \14\ Clear, objective test 
procedures ensure that the same results are produced from lab-to-lab 
and from vehicle-to-vehicle, ``and that compliance is based upon 
readings obtained from measuring instruments as opposed to the 
subjective opinions of human beings.'' \15\ The test conditions and 
procedures both assist in providing notice of what performance is 
required under an FMVSS,\16\ and, if written into regulatory text, 
establish by regulation how NHTSA will establish whether a vehicle 
complies with the FMVSS in the context of a compliance 
investigation.\17\ However, manufacturers that otherwise have a good 
faith basis for certification are not required to test to the FMVSS 
when they certify a product or follow the test conditions and 
procedures in an FMVSS if testing is part of their certification 
process.
---------------------------------------------------------------------------

    \14\ Chrysler Corp. v. Dep't of Transp., 472 F.2d 659, 675 (6th 
Cir. 1972) (citing House Report 1776, 89th Cong. 2d Sess.1966, p. 
16).
    \15\ Ibid., at 676.
    \16\ See, United States v. Chrysler Corp. 158 F.3d 1350 (DC Cir. 
1998).
    \17\ When it is possible for NHTSA to perform the FMVSS test 
conditions and procedures with a vehicle, the results of testing the 
vehicle using the test conditions and procedures form the basis for 
any noncompliance finding.
---------------------------------------------------------------------------

    Per the Safety Act, new motor vehicles must meet two requirements 
before they are sold or otherwise introduced into interstate commerce 
in the United States. First, the vehicle must meet all applicable FMVSS 
that are in effect on the date of manufacture.\18\ Second, the vehicle 
must be covered by a manufacturer certification issued under 49 U.S.C. 
30115. By certifying a vehicle under Sec.  30115, a manufacturer 
assumes responsibility for compliance with all applicable FMVSS. For 
vehicles, the manufacturer affixes a certification label on the 
vehicle, and for equipment the FMVSS generally require the manufacturer 
to provide its certification by marking the equipment with the letters 
``DOT'' in a prescribed location.
---------------------------------------------------------------------------

    \18\ 49 U.S.C. 30112.
---------------------------------------------------------------------------

    The Safety Act requires NHTSA to establish through rulemaking the 
requirements for compliance with the FMVSS, i.e., by setting 
performance standards.\19\ However, in addition to requiring actual 
compliance with applicable FMVSS, the Act itself expressly established 
a separate requirement that manufacturers exercise ``reasonable care'' 
when certifying compliance.\20\ Specifically, a manufacturer may not 
certify a vehicle under Section 30115 if, in exercising ``reasonable 
care,'' the manufacturer has reason to know the certification is false 
or misleading in any material respect.\21\
---------------------------------------------------------------------------

    \19\ 49 U.S.C. 30111.
    \20\ 49 U.S.C. 30115.
    \21\ Id.
---------------------------------------------------------------------------

    Under the system of self-certification established by the Safety 
Act, NHTSA does not pre-approve vehicles, through testing or other 
means, before they can be sold or otherwise introduced into interstate 
commerce. Instead, as described above, vehicles must be certified as 
compliant by the manufacturer. NHTSA's enforcement of the FMVSS 
typically involves the Agency purchasing already-certified new vehicles 
to test for compliance with the FMVSS. In addition, NHTSA conducts 
other enforcement activities to help ensure compliance with other legal 
requirements in the Safety Act.

b. NHTSA's Longstanding Interpretation of the Certification Requirement

    Prior to 2016, NHTSA repeatedly stated the FMVSS test procedures 
are for NHTSA's own use, and need not be used by manufacturers, who may 
instead use different test conditions and procedures or non-testing 
methodologies (such as engineering analyses) as a reasonable basis for 
certification.\22\ NHTSA has held this position since at least the 
early 1970s, when it stated: ``The National Traffic and Motor Vehicle 
Safety Act does not require a manufacturer to test vehicles by any 
particular method. . . . [The

[[Page 83146]]

manufacturer] is under no obligation to repeat the procedures of the 
standards.'' \23\
---------------------------------------------------------------------------

    \22\ See, e.g., letter to F. Smidler, Wabash Nat'l Corp. (Apr. 
29, 1997), https://isearch.nhtsa.gov/files/13241-2.pja.html (``The 
test procedures in the standard describe how NHTSA will test guards 
for compliance with the standard's requirements, and are not binding 
upon guard manufacturers. They may certify their guards based on 
other kinds of testing or even engineering analysis, if these 
provide a reasonable basis for certification.''); letter to K. 
Manke, Dakota Manufacturing (Apr. 15, 2008), https://isearch.nhtsa.gov/files/07-005971as%20underride%20guards.htm. 
(``Keep in mind that the test procedures in FMVSS No. 223 describe 
how NHTSA will test guards for compliance with the standard's 
requirements, and are not binding upon guard manufacturers. A 
manufacturer is not required to use the standard's procedures when 
certifying compliance with the standard.'')
    \23\ See, e.g., 39 FR 40858 (Nov. 21, 1974) (``The National 
Traffic and Motor Vehicle Safety Act does not require a manufacturer 
to test vehicles by any particular method . . . . [the manufacturer] 
is under no obligation to repeat the procedures of the 
standards.''); see also 38 FR 12935 (May 17, 1973) (``Manufacturers 
should understand that they are not required to test their products 
in any particular manner, as long as they exercise due care that 
their products will meet the requirements when tested by the NHTSA 
under the procedures specified in the standard.''); 36 FR 5856 (Mar. 
30, 1971) (``Manufacturers have the responsibility of insuring, by 
any methods that constitute due care, that their products meet the 
requirements at the stated level. Normally this is done by setting 
their own test conditions slightly on the `adverse side' of the 
stated level.'').
---------------------------------------------------------------------------

    NHTSA repeated the position on numerous instances over the decades 
that followed, including in both rulemaking notices and letters of 
interpretation, that ``reasonable care'' \24\ does not require 
manufacturers to perform the FMVSS test procedures to certify a vehicle 
or equipment.\25\ Expanding on this issue in one such interpretation, 
NHTSA explained:
---------------------------------------------------------------------------

    \24\ In 1994, the Safety Act was recodified and the statutory 
language was modified ``without substantive change'' from ``due 
care'' to ``reasonable care.'' Pub. L. 103-272.
    \25\ See, e.g., 76 FR at 15905, 15908 (Mar. 22, 2011) 
(``[M]anufacturers are not required to test their products in the 
manner specified in the relevant safety standard, or even to test 
the product at all, as their basis for certifying that the product 
complies with all relevant standards. A manufacturer may evaluate 
its products in various ways to determine whether the vehicle or 
equipment will comply with the safety standards and to provide a 
basis for its certification of compliance. Depending on the 
circumstances, the manufacturer may be able to base its 
certification on actual testing (according to the procedure 
specified in the standard or some other procedure), computer 
simulation, engineering analysis, technical judgment or other means 
. . . . manufacturers can use their judgment, including engineering 
or technical judgment, to certify vehicles. Testing, as provided in 
the FMVSS, is not required as a matter of law to certify a vehicle. 
Instead, sound judgment may be used.'') (footnote omitted). See 71 
FR at 28183-84 (Sept. 1, 2006), letters to S. Trinkl, DEKRA 
Automobil GmbH (Dec. 30, 2004), https://isearch.nhtsa.gov/files/Trinkl.1.html, F. Anderson, BrakeQuip Int'l, Inc. (Aug. 12, 2003), 
https://isearch.nhtsa.gov/files/GF005279.html, to D. Dawkins, 
Chrysler Corp. (Oct. 2, 1992), https://isearch.nhtsa.gov/files/7714.html, to D. Cole, Nat'l Van Conversion Ass'n, Inc. (Nov. 1, 
1988), https://isearch.nhtsa.gov/files/3140o.html.

    Vehicle manufacturers certifying compliance with the safety 
standards are not required to follow the compliance test procedures 
set forth in the applicable standard. The standards specify the 
procedures NHTSA would use in compliance testing. However, vehicle 
manufacturers must exercise reasonable care in certifying that their 
products meet applicable standards. It may be simplest for a 
manufacturer to establish that it exercised `reasonable care' if the 
manufacturer has conducted testing that strictly followed the 
compliance test procedures set forth in the standard. However, 
`reasonable care' might also be shown using modified test procedures 
if the manufacturer could demonstrate that the modifications were 
not likely to have had a significant impact on the test results. In 
addition, it might be possible to show `reasonable care' using 
engineering analyses, computer simulations, and the like.\26\
---------------------------------------------------------------------------

    \26\ Letter to A. Ughini Jr., Marcopolo SA (June 24, 2002) 
https://isearch.nhtsa.gov/files/24423-2.html.

    It should be noted, however, that in past Agency interpretations, 
NHTSA could generally conduct the FMVSS test procedure on the vehicle 
to assess compliance. Thus, the past letters often pointed out that 
manufacturers may use a basis other than the testing specified in the 
FMVSS for their certification, but are responsible for ensuring that 
the vehicle or equipment meets the FMVSS when testing by NHTSA in 
accordance with the standard.\27\
---------------------------------------------------------------------------

    \27\ For example, in the letter to A. Ughini Jr., Marcopolo SA 
(June 24, 2002), NHTSA also stated: ``Please note that, while the 
exercise of `reasonable care' may relieve a manufacturer of 
liability for civil penalties in connection with the manufacture and 
sale of noncomplying vehicles, it does not relieve a manufacturer of 
the responsibility to discontinue sales of vehicles or notify 
purchasers of the noncompliance and remedy the noncompliance without 
charge to the purchasers, if either the manufacturer or this agency 
determines that vehicles do not comply with all applicable safety 
standards.'' https://isearch.nhtsa.gov/files/24423-2.html.
---------------------------------------------------------------------------

    Nonetheless, NHTSA has repeatedly made clear that ``[t]esting, as 
provided in the FMVSS, is not required as a matter of law to certify a 
vehicle.'' \28\ The Safety Act requires only that vehicles comply, and 
that manufacturers certify, using reasonable care, that a motor vehicle 
complies. The test conditions and procedures in the FMVSS are not 
themselves motor vehicle safety standards as that term is defined in 
the Safety Act.\29\
---------------------------------------------------------------------------

    \28\ 76 FR 15903, 15908 (Mar. 22, 2011), Response to petition 
for reconsideration, Roof crush resistance.
    \29\ The Safety Act defines ``motor vehicle safety standard'' to 
mean ``a minimum standard for motor vehicle or motor vehicle 
equipment performance.'' 49 U.S.C. 30102. Test conditions and 
procedures are not aspects of motor vehicle or motor vehicle 
equipment performance; they are steps NHTSA takes to prepare a motor 
vehicle or motor vehicle equipment to have its performance measured.
---------------------------------------------------------------------------

c. 2016 Google Interpretation

    NHTSA's position regarding manufacturer obligations to certify a 
motor vehicle had been consistent for several decades, until NHTSA 
responded to a 2016 interpretation request from Google asking the 
Agency to clarify how the FMVSS would apply to a vehicle that lacks 
manual driving controls and is exclusively operated by an Automated 
Driving System (ADS).\30\ \31\ As noted above, with most past Agency 
interpretations, NHTSA could conduct the FMVSS test procedure to assess 
compliance, so the Agency could determine compliance and compare its 
results to that of the manufacturer. Thus, the Google interpretation 
request presented a novel issue in that the Google vehicles could not 
be tested for compliance to certain FMVSS because their advanced 
designs lacked traditional controls used in the FMVSS test conditions 
and procedures.
---------------------------------------------------------------------------

    \30\ Google's interpretation request and NHTSA's response can be 
found here: https://www.regulations.gov/document?D=NHTSA-2016-0009-0001.
    \31\ The Google interpretation uses the term ``Self-Driving 
System'' or ``SDS'' rather than the more-current term ``ADS.''
---------------------------------------------------------------------------

    NHTSA responded to Google's request in an interpretation letter 
dated February 4, 2016. In this letter, NHTSA stated that if the Agency 
was unable to verify a vehicle's compliance using the existing FMVSS 
test conditions and procedures, NHTSA would consider that standard as 
not ``allowing'' a manufacturer of an ADS vehicle to certify compliance 
with it. The interpretation's discussion of FMVSS test conditions and 
procedures reasoned that ``[a]s self-driving technology moves beyond 
what was envisioned at the time when standards were issued, NHTSA may 
not be able to use the same kinds of test procedures for determining 
compliance.'' \32\ The letter stated that ``since the Safety Act 
creates a self-certification system for compliance, NHTSA's 
verification of a manufacturer's compliance . . . is based on our 
established test procedures.'' \33\
---------------------------------------------------------------------------

    \32\ Letter to C. Urmson, Google (Feb. 4, 2016), https://www.nhtsa.gov/interpretations/google-compiled-response-12-nov-15-interp-request-4-feb-16-final.
    \33\ Id.
---------------------------------------------------------------------------

    On reconsideration of the Google interpretation, NHTSA believes it 
incorrect in some respects. Although the letter recognized that test 
procedures are for NHTSA's use in compliance testing, it stated that 
``in order for NHTSA to interpret a standard as allowing certification 
of compliance by a vehicle manufacturer, NHTSA must first have a test 
procedure or other means of verifying such compliance.'' \34\ The 
letter repeated similar assertions in its discussion of specifically 
applicable standards, and suggested that, for Google to certify its 
vehicles with designs that prevented compliance

[[Page 83147]]

testing using the test conditions and procedures specified in the 
FMVSS, Google must seek exemptions under 49 CFR part 555.
---------------------------------------------------------------------------

    \34\ Id. (Emphasis added.) We note that, in addition to the fact 
that the interpretation appeared to establish a policy not based in 
NHTSA's statutory authority, the interpretation should have cited 49 
U.S.C. 30115--not the standards promulgated pursuant to the Safety 
Act--as the legal provision that allows or disallows certification. 
This quoted sentence attempts to give the FMVSS agency (in this 
case, meaning power or effect) they lack over what is required for a 
valid certification.
---------------------------------------------------------------------------

    Under NHTSA's 2016 Google Interpretation of NHTSA's authority, a 
manufacturer of an ADS vehicle without the manual controls necessary to 
conduct some FMVSS compliance tests cannot certify it as FMVSS 
compliant. Therefore, to the extent that, for example, a conventional 
steering wheel may be needed for compliance testing, the Google 
Interpretation is design restrictive and compels use of certain 
controls or attributes as a condition of certifying the vehicle meets 
all applicable FMVSS. On reconsideration, NHTSA does not believe the 
Safety Act requires that manufacturers ensure that their vehicles are 
equipped to accommodate portions of certain test procedures as a 
condition of certification. After further examination, the Agency 
concludes that this approach stifles innovation and unfairly punishes 
manufacturers seeking to implement innovative technologies, without the 
safety or other justification that would be required to support a 
design-specific standard.

III. Reaffirmation of NHTSA's Position on Certification

    With this notice, NHTSA is reestablishing its previous position 
that the Safety Act requires that a manufacturer exercise ``reasonable 
care'' in certifying that the vehicle meets the performance criteria in 
the FMVSS; certification by the manufacturer does not require the 
manufacturer ensure that NHTSA is able to verify compliance by 
performing the test procedures established in the FMVSS. NHTSA's 
statement in the 2016 Google Interpretation that a vehicle cannot be 
certified unless the vehicle is designed in such a way that NHTSA can 
perform the test procedures or replicate the test conditions in the 
FMVSS, is inconsistent with the Safety Act's certification requirement. 
Accordingly, that aspect of the 2016 Google Interpretation is 
rescinded.
    A manufacturer may certify compliance with the FMVSS in a manner 
that differs from the test described in the FMVSS. If the 
manufacturer's basis for certification demonstrates that the 
manufacturer exercised ``reasonable care'' in making its certification, 
it may so certify, even if the vehicle were designed in such a way that 
the FMVSS test conditions and procedures cannot be performed. FMVSS 
test conditions and procedures provide notice to the public of the 
parameters of the procedures NHTSA will undertake to determine 
compliance with the performance standards. Above all, however, the 
vehicle must comply with the standard. As discussed later in this 
notice, if NHTSA cannot conduct the test, the Agency will pursue other 
means to determine whether the vehicle meets the need for motor vehicle 
safety identified in the standard.
    Per 49 U.S.C. 30115, a manufacturer is required to certify that a 
vehicle complies with ``applicable motor vehicle safety standards 
prescribed under [the Safety Act]'' (emphasis added). The Safety Act 
defines the term ``motor vehicle safety standard'' as ``a minimum 
standard for motor vehicle or motor vehicle equipment performance.'' 49 
U.S.C. 30102(a)(9) (emphasis added). Fundamentally, the reason the 2016 
Google Interpretation is inconsistent with the Safety Act is that, by 
maintaining that manufacturers must ensure that compliance with the 
FMVSS can be verified using the specific test conditions and procedures 
in the FMVSS, it effectively required those manufacturers to follow 
those specific conditions and procedures to certify the vehicle. Test 
conditions and procedures are not minimum performance criteria; they 
are a set of preparatory actions that are taken to set up a scenario 
for one way in which performance will be measured.
    For those vehicles whose design and configuration allow NHTSA to 
conduct testing employing existing test conditions and procedures, the 
Agency is bound by that specific method of measuring performance, which 
provides the regulated industry with fair notice of how the Agency will 
test for compliance. See United States v. Chrysler Corp., supra.\35\ 
Manufacturers are not so bound as to their basis for certification. It 
is for this reason that, as noted earlier, NHTSA has long stated that 
manufacturers could use methods such as engineering analysis or 
computer simulations, which do not involve physically running the FMVSS 
test procedures, to provide a basis for certification. The FMVSS test 
procedures do not foreclose other methods of exercising reasonable care 
in certifying that a vehicle complies with applicable minimum 
performance standards.
---------------------------------------------------------------------------

    \35\ See also 49 CFR 5.69 (``Notice to the regulated party is a 
due process requirement.'')
---------------------------------------------------------------------------

    Requiring that vehicles be designed in such a way that the FMVSS 
compliance test can be run fundamentally alters the statutory scheme 
from one where the Agency sets ``minimum standard[s] for motor vehicle 
or motor vehicle equipment performance'' to one in which the agency is 
dictating designs that accommodate a particular method of testing, 
without expressly stating as much when establishing the FMVSS through 
rulemaking. To the extent that test procedures introduce design 
constraints not found in the standard's performance requirements, 
interpreting test procedure compatibility as a mandatory requirement 
hinders innovation of all types, including innovative technological 
methods of meeting or exceeding the actual performance standards that 
constitute the FMVSS. Such an approach undermines the safety-innovation 
goals behind the Safety Act's self-certification approach.
    In addition to these legal and practical reasons, NHTSA is also 
rescinding the portions of the 2016 Google Interpretation related to 
the application of the FMVSS test procedures to certifying 
manufacturers based on procedural concerns. The 2016 Google 
Interpretation did not acknowledge that it represented a change.\36\ 
The Agency's longstanding position that manufacturers do not have to 
test using the FMVSS test procedures to certify their products 
undoubtedly engendered serious reliance interests that should have been 
taken into account when considering a change.\37\
---------------------------------------------------------------------------

    \36\ See FCC v. Fox, 556 U.S. 502, 515 (2009) (``[T]he 
requirement that an agency provide reasoned explanation for its 
action would ordinarily demand that it display awareness that it is 
changing position. An agency may not, for example, depart from a 
prior policy sub silentio or simply disregard rules that are still 
on the books.'').
    \37\ See id.
---------------------------------------------------------------------------

IV. Implications of This Return to NHTSA's Position on Certification

a. Certification of Vehicles and Equipment With Innovative Designs

    By clarifying that manufacturers are not required to ensure that 
the test conditions and procedures in the FMVSS can be performed when 
they certify the vehicle, this notice confirms that manufacturers have 
more flexibility than described in the 2016 Google Interpretation to 
certify vehicles with innovative designs, including ADS vehicles that 
are not equipped with manual controls or other features that are 
referenced in the FMVSS test conditions or procedures. Importantly, 
however, NHTSA distinguishes the situation where the FMVSS specifies a 
substantive performance or other requirement that the vehicle cannot 
meet because of an innovative design from one where the innovative 
design omits a feature that is an instrumental means to satisfying such 
performance requirement. In the former situation,

[[Page 83148]]

manufacturers are not permitted to certify vehicles as compliant if 
they do not meet all applicable performance standards, including any 
particular section of a performance standard or subcomponent thereof. 
For example, FMVSS No. 135, ``Light vehicle brake systems,'' 
specifically requires that service brakes be activated by means of a 
foot control (S5.3.1). Today's notice reaffirming the Agency's position 
on certification would not permit the manufacturer of a vehicle without 
a brake pedal to certify the vehicle as compliant, because such a 
vehicle would not meet the substantive requirement of S5.3.1. Unless 
and until NHTSA conducts a rulemaking to remove or modify that 
requirement, a manufacturer must seek an exemption from S5.3.1 if that 
manufacturer wishes to build a vehicle not equipped with a foot 
control. If, however, FMVSS No. 135 did not specifically require in 
S5.3.1 that the service brakes be actuated by a foot control, a 
manufacturer would be able to certify a vehicle without that foot 
control even though the Road test procedures and performance 
requirements in S7 of the standard require that certain forces be 
applied to the brake pedal in the course of testing.
    The 2016 Google Interpretation restricted the extent to which 
manufacturers of ADS vehicles could incorporate innovative design 
features into these vehicles, since it effectively required 
manufacturers either to equip a vehicle with all motor vehicle 
equipment referenced in an applicable FMVSS test procedure, or seek an 
exemption.\38\ By reestablishing that manufacturers can certify their 
vehicles as compliant even if one or more FMVSS test procedures cannot 
be performed, NHTSA confirms that manufacturers have flexibility in 
designing vehicles to meet the FMVSS. This also reduces the need for a 
manufacturer to seek exemptions from FMVSS test procedures under 49 
U.S.C. 30113.
---------------------------------------------------------------------------

    \38\ See 85 FR 7826, 7834-36 (Feb. 11, 2020) (discussing request 
from Nuro, Inc. for an exemption from portions of FMVSS No. 111 test 
procedures).
---------------------------------------------------------------------------

    The impact this return to NHTSA's prior position will have on the 
ability of manufacturers of ADS vehicles without some manual controls 
to certify FMVSS compliance can be illustrated using FMVSS No. 126, 
``Electronic Stability Control for Light Vehicles.'' FMVSS No. 126 
requires that most light vehicles be equipped with an electronic 
stability control (ESC) system that automatically adjusts the vehicle's 
brakes to prevent loss of vehicle control. The performance criteria in 
the standard require that the vehicle cannot exceed certain limits on 
the yaw rate and lateral displacement of the vehicle's center of 
gravity when the vehicle is tested in accordance with the standard's 
test conditions and procedures. However, because the standard's test 
conditions state that ``a steering machine programmed to execute the 
required steering pattern must be used'' to execute the FMVSS test 
procedures,\39\ it would not be possible to run the compliance test on 
a vehicle that is not equipped with a conventional steering wheel 
compatible with existing steering machines. Thus, under the 2016 Google 
Interpretation, a manufacturer would not be permitted to certify such a 
vehicle to FMVSS No. 126 absent an exemption--even if the vehicle's ESC 
system would meet the standard when tested on an otherwise identical 
vehicle with manual controls.
---------------------------------------------------------------------------

    \39\ 49 CFR 571.126, S6.3.5.
---------------------------------------------------------------------------

    By contrast, under today's return to NHTSA prior position, a 
manufacturer will be able to certify an ADS vehicle without a steering 
wheel as compliant with FMVSS No. 126 if the manufacturer has, pursuant 
to 49 U.S.C. 30115, exercised reasonable care to ensure that the 
vehicle complies with the performance requirements in the standard. A 
valid basis for certification does not require that the manufacturer 
recreate the exact test conditions and use the exact methods described 
in the FMVSS No. 126 test procedures. Rather, the manufacturer must 
ensure that its basis for certifying compliance with the standard 
reasonably demonstrates that the vehicle's ESC system achieves the 
performance levels required. A basis for certification could consist of 
simulation, testing performed with alternative ways of controlling the 
vehicle, or even alternative testing scenarios that demonstrate that 
the ESC maintains vehicle stability to the same degree as a compliant 
vehicle tested in accordance with the test procedures.

b. Enforcement

    The return to NHTSA's position on certification may have 
implications for NHTSA's enforcement with respect to vehicles that it 
is unable to test using the FMVSS test conditions and procedures. NHTSA 
is confirming that such vehicles may be certified as compliant by a 
manufacturer exercising ``reasonable care,'' notwithstanding 
circumstances where the Agency is unable to use all aspects of the 
FMVSS test procedures to verify compliance independently. However, 
while this may impact how NHTSA exercises its oversight, it does not 
relieve a manufacturer of such vehicles of any obligations under the 
Safety Act or NHTSA regulations.
    NHTSA reemphasizes that the Safety Act requires that vehicles must 
both comply with all applicable FMVSS and be certified as compliant by 
a manufacturer exercising reasonable care before they may be sold or 
otherwise introduced into interstate commerce.\40\ NHTSA enforcement 
actions commonly address the requirement of actual compliance and 
result in recalls independent of any finding that the manufacturer's 
certification was improper.\41\
---------------------------------------------------------------------------

    \40\ 49 U.S.C. 30112, 49 U.S.C. 30115.
    \41\ A recall is required when a manufacturer ``decides in good 
faith that the vehicle or equipment does not comply with an 
applicable motor vehicle safety standard.'' 49 U.S.C. 30118(c)(2). 
NHTSA may also make a decision that a vehicle or equipment does not 
comply. 49 U.S.C. 30118(a)-(b).
---------------------------------------------------------------------------

    As explained above, the Safety Act requires that every vehicle must 
comply with applicable FMVSS regardless of design. If a vehicle does 
not comply with these applicable performance standards, due to its 
design or for any other reason, it is noncompliant and generally may 
not be sold or otherwise introduced into interstate commerce.\42\ In 
the case of a vehicle whose advanced design impairs NHTSA's ability to 
apply all FMVSS test procedures and conditions outlined within the 
FMVSS, the minimum performance standards in the FMVSS still apply and 
the manufacturer's obligations under the Safety Act remain unchanged. 
If the vehicle is determined, by the manufacturer or Agency, to be 
noncompliant, the Safety Act requires that the manufacturer notify 
owners, purchasers and dealers, and remedy the noncompliance without 
charge--even if the manufacturer had certified compliance using 
reasonable care.\43\
---------------------------------------------------------------------------

    \42\ A noncompliant vehicle, however, may be subject to a 
statutory exception or qualify for an exemption. See 49 U.S.C. 
30112(b), 30113-14.
    \43\ 49 U.S.C. 30118-30120.
---------------------------------------------------------------------------

    To be clear, the Agency's position as described in this notice does 
not render any FMVSS inapplicable to ADS vehicles, or any other 
vehicles. Manufacturers of such vehicles must determine, through the 
exercise of reasonable care, whether their vehicles comply with the 
FMVSS. If they do, they may certify the vehicles as compliant. Like all 
manufacturers, if they or NHTSA later determine that a vehicle does not 
in fact comply, they must recall it.
    Of course, NHTSA's inability to test a vehicle using an established 
FMVSS test condition or procedure does have some

[[Page 83149]]

impact on the regulatory tools at the Agency's disposal to conduct 
oversight and enforcement activities. Independent verification of FMVSS 
compliance through testing has long been a backbone of NHTSA's 
enforcement program prior to the 2016 Google Interpretation, and will 
remain an integral part of its enforcement program subsequent to this 
interpretation. NHTSA enforces FMVSS compliance by conducting 
compliance testing. NHTSA decides what vehicles it will test to various 
FMVSS. The Agency contracts with independent laboratories to conduct 
compliance testing on its behalf, in accordance with the FMVSS test 
conditions and procedures. If an apparent noncompliance is found, NHTSA 
typically continues its investigation by asking the manufacturer 
various questions, including those relating to the manufacturer's basis 
for certification. Manufacturers have an opportunity to rebut any 
apparent noncompliance found by the Agency. If NHTSA does not believe 
that the manufacturer has rebutted an apparent noncompliance, the 
Agency pursues a recall.\44\
---------------------------------------------------------------------------

    \44\ In most cases, a manufacturer agrees to conduct a recall 
without NHTSA taking additional formal steps. If the manufacturer 
does not agree to a recall, the Agency may send the manufacturer a 
recall request letter and may utilize the statutory process for 
ordering a recall. See 49 U.S.C. 30118(a)-(b).
---------------------------------------------------------------------------

    NHTSA emphasizes that the FMVSS enforcement framework remains an 
effective and critical method of enforcing the Federal safety 
standards. While the Agency is returning to its longstanding position 
that manufacturers are not required to certify compliance using the 
test conditions and procedures in the FMVSS, NHTSA will hold a 
manufacturer responsible for a noncompliance when a vehicle fails a 
compliance test using those procedures. The compliance tests adopted 
into the FMVSS accurately and objectively demonstrate the vehicle's 
performance measured under the conditions and procedures to which it 
was subjected. A vehicle's failure of the FMVSS compliance test is 
prima facie evidence of noncompliance. The FMVSS test procedures are 
generally designed to replicate or represent the real-world 
circumstances giving rise to the safety need underlying the performance 
mandated by the FMVSS. The test assesses the performance of the vehicle 
relative to the minimum necessary to meet a safety need determined 
through the rulemaking process. A failure of the FMVSS compliance test 
is evidence of a failure to attain the minimum level of performance set 
by the standard to meet the safety need. NHTSA can and generally will 
pursue a violation of the Safety Act for the nonconformance based on a 
failure of that test alone.
    The traditional enforcement framework is applicable to vehicles 
that are designed in such a way that NHTSA can use its FMVSS test 
conditions and procedures fully. However, as explained above, the 
Safety Act permits manufacturers to certify vehicles as FMVSS compliant 
even if they are designed in a way that does not allow the Agency to 
use its existing FMVSS test procedures, such as vehicles without the 
manual controls that are needed for the test procedures. A gap between 
a manufacturer's ability to certify compliance and NHTSA's ability to 
verify compliance using the FMVSS test procedures has always been a 
possibility. However, since many of the manual controls referenced in 
FMVSS test procedures are not mandated equipment, it is only with the 
recent advent of ADS technology that manufacturers have realistically 
started to consider developing production vehicles without manual 
controls. As NHTSA expects that the Agency will confront this issue 
should manufacturers begin producing vehicles without such controls 
(until NHTSA amends its FMVSS test procedures to accommodate vehicles 
without manual controls), this notice is intended to provide 
transparency into the methods by which the Agency expects to exercise 
its oversight.
    Specifically, for vehicles for which NHTSA cannot fully utilize its 
existing FMVSS test conditions or procedures, NHTSA first maintains 
that by choosing to introduce these new designs, manufacturers do so 
with knowledge that the Agency will likely be forced to adapt existing 
test procedures to novel vehicle configurations. Instead of, or in 
addition to testing, NHTSA may focus additional efforts on 
investigating the manufacturer's basis for certification. NHTSA may 
request information and documentation from a manufacturer regarding its 
method of certification. For example, if a manufacturer used alternate 
test procedures, NHTSA may review those procedures and test results to 
evaluate whether they demonstrate the vehicle complies with the 
standard and/or whether the manufacturer exercised reasonable care. In 
addition to information gathering, NHTSA may perform other inquiries or 
analyses, such as testing in the same manner as the manufacturer, or 
applying the Agency's own engineering judgment in an investigation as 
to whether the vehicle complies with all applicable FMVSS and/or 
whether the manufacturer exercised reasonable care. If NHTSA finds an 
apparent noncompliance, and the manufacturer has not rebutted the 
apparent noncompliance, the Agency can and likely will pursue a recall. 
If a manufacturer's basis for certifying does not satisfy the 
requirement of ``reasonable care'' then, in general, it is not 
permitted to sell or otherwise introduce into interstate commerce its 
vehicles that lack a valid certification, and may be subject to civil 
penalties.\45\
---------------------------------------------------------------------------

    \45\ See 49 U.S.C. 30112(a)(1). A manufacturer that violates the 
certification requirement is also liable for civil penalties and may 
be subject to additional action, as appropriate. 49 U.S.C. 
30165(a)(1); see 49 U.S.C. 30163(a)(1) (actions to enjoin violations 
of the Safety Act).
---------------------------------------------------------------------------

    With respect to compliance, there are several methods by which 
NHTSA may continue to exercise its oversight over vehicles for which 
NHTSA cannot fully utilize its existing FMVSS test conditions or 
procedures. To the extent that NHTSA's FMVSS test conditions and 
procedures can enable the Agency to conduct a partial compliance test, 
it may do so. In other words, NHTSA may omit testing those aspects of a 
FMVSS for which its test procedures do not apply to a particular 
design, while otherwise using its established test procedures to 
conduct a compliance test.\46\ In such cases, NHTSA will need to 
consider the extent to which various aspects of its test procedures are 
independent from the aspects that cannot be used with a particular 
design. In addition, certain aspects of compliance may also be verified 
through visual inspections, without need for testing.\47\
---------------------------------------------------------------------------

    \46\ This approach has been codified in FMVSS No. 214, ``Side 
impact protection,'' regarding the moving deformable barrier (MDB) 
test (S7). The MDB test is designed so that a 50th percentile male 
dummy is seated in the front outboard seating position on the side 
struck by the MDB, and with a 5th percentile adult female test dummy 
seated in the rear outboard seating position on the same struck 
side. In S5(b)(3), General exclusions, FMVSS No. 214 states that 
passenger cars, multipurpose passenger vehicles, trucks and buses 
are excluded from the MDB test as applied to the rear seat ``for 
rear seating areas that are so small that [the 5th percentile adult 
female test dummy used in the test] cannot be accommodated according 
to the positioning procedure specified in S12.3.4 of this 
standard.'' For those vehicles where the rear seating position is 
too small to fit the 5th female dummy, the MDB test is nonetheless 
conducted with the 50th percentile male dummy in the front seat.
    \47\ For example, a vehicle may be noncompliant because it lacks 
a required telltale, or an item of equipment may be noncompliant 
because it does not contain a required label.
---------------------------------------------------------------------------

    The Agency may also rely on other investigative techniques to 
evaluate a vehicle's compliance with the FMVSS. The Safety Act 
specifically contemplates that the Agency may make noncompliance (or 
safety-related defect) determinations through methods

[[Page 83150]]

beyond testing and inspection. Specifically, the Act provides that 
NHTSA ``shall notify the manufacturer of a motor vehicle or replacement 
equipment immediately after making an initial decision (through 
testing, inspection, investigation, or research carried out under this 
chapter, examining communications under section 30166(f) of this title, 
or otherwise) that the vehicle or equipment contains a defect related 
to motor vehicle safety or does not comply with an applicable motor 
vehicle safety standard prescribed under this chapter.'' \48\ Should 
the Agency's research, information gathering, or other forms of 
investigation reveal an apparent noncompliance, the Agency would 
discuss the findings with the affected manufacturer. This information 
could result in a manufacturer ``decid[ing] in good faith that the 
vehicle . . . does not comply with an applicable motor vehicle safety 
standard,'' and thus initiating a recall.\49\ Alternatively, the Agency 
could conduct further investigation, or proceed with ordering a recall 
based on the evidence it has collected.
---------------------------------------------------------------------------

    \48\ 49 U.S.C. 30118(a).
    \49\ See 49 U.S.C. 30118(c)(2).
---------------------------------------------------------------------------

    As an example, if a manufacturer used an alternative test procedure 
to test its vehicles for compliance with the FMVSS, the Agency's 
evaluation of those test procedures might reveal a flaw in methodology, 
which could result in overstating the vehicle's performance. If the 
error was significant enough to impact the vehicle's compliance (i.e., 
the vehicle did not achieve the performance required by the standard), 
that error could result in a noncompliance determination or finding 
that the manufacturer failed to exercise reasonable care in certifying 
compliance.
    As noted above, this notice has no impact on a manufacturer's 
obligations under the Safety Act to manufacture vehicles that fully 
comply with the FMVSS (absent an exception or exemption), and that are 
certified as compliant based on the exercise of reasonable care. 
NHTSA's oversight and enforcement of these requirements continues 
irrespective of whether it can fully test a vehicle based on its 
existing FMVSS test procedures. The Safety Act is premised on a system 
of self-certification. Vehicles with novel designs are held to the same 
performance standards as vehicles with traditional designs. NHTSA's 
enforcement program will continue to evaluate a wide variety of 
vehicles to verify their compliance.
    Finally, NHTSA emphasizes that, where the Agency is able to 
evaluate compliance using the FMVSS test conditions and procedures--as 
is the case with almost all vehicles, the results of such a compliance 
test would be the basis for the Agency's compliance determination. The 
test conditions and procedures in the FMVSS remain the primary method 
by which NHTSA will assess compliance with the FMVSS. They were 
established through notice-and-comment rulemaking procedure and 
establish the threshold levels of safety required of vehicles. 
Therefore, if a vehicle fails to meet the minimum performance criteria 
when tested according to the test conditions and procedures established 
in the FMVSS, that failure is prima facie evidence of a noncompliance 
(evidence sufficient for a manufacturer to ``decide[ ] in good faith 
that the vehicle or equipment does not comply with an applicable motor 
vehicle safety standard'' (49 U.S.C. 30118(c)(2))). It is only where 
NHTSA is unable to apply or reasonably adapt the established test 
conditions and procedures to a vehicle to assess compliance, such as 
due to the absence of traditional manual controls, that NHTSA would 
look to its other investigatory tools to form a basis for a 
noncompliance finding.

c. Motor Vehicle Safety as the Nexus Between FMVSS and Defect 
Obligations

    The Safety Act's compliance and defect authorities are 
complementary. Pursuant to the Safety Act, NHTSA is required to 
prescribe ``motor vehicle safety standards'' (FMVSS), which must ``meet 
the need for motor vehicle safety.'' \50\ Under the Safety Act, motor 
vehicles and motor vehicle equipment must not contain any ``defect 
related to motor vehicle safety.'' The recall and sale prohibition 
provisions of the Safety Act for noncompliance with FMVSS and when 
there exists a ``defect related to motor vehicle safety'' are 
effectively identical; \51\ the common use of ``motor vehicle safety'' 
is worthy of note. The Safety Act defines ``motor vehicle safety ``as 
``the performance of a motor vehicle or motor vehicle equipment in a 
way that protects the public against unreasonable risk of accidents 
occurring because of the design, construction, or performance of a 
motor vehicle, and against unreasonable risk of death or injury in an 
accident, and includes nonoperational safety of a motor vehicle.'' \52\ 
This common term, which is the driving force behind both FMVSS-setting 
and defect determinations, acts to link NHTSA's execution of its 
authorities against unreasonable safety risks inherently, both in 
setting FMVSS and in overseeing the safety of vehicle design, 
construction, and performance.
---------------------------------------------------------------------------

    \50\ 49 U.S.C. 30111(a) (emphasis added).
    \51\ See, e.g., 49 U.S.C. 30112 (a) and (c), 30116, and 30118-20 
(emphasis added).
    \52\ 49 U.S.C. 30102(a)(9).
---------------------------------------------------------------------------

    When NHTSA establishes a performance standard in the form of an 
FMVSS, the Agency is declaring the requisite minimum threshold metric 
to meet the need for motor vehicle safety in that aspect of 
performance. In so doing, the Agency bars itself from declaring a 
vehicle defective solely on performance meeting that specific and 
discrete threshold.\53\ For instance, the side impact protection 
requirements of FMVSS No. 214 require each vehicle to meet vehicle-to-
pole test requirements when tested under the conditions specified in 
the standard.\54\ The requirements must be met when test dummies 
representing a 50th-percentile adult male and a 5th-percentile female 
are used in the test (S9.2). In the pole test, the vehicle's side 
protection system must perform in a manner that limits the 
accelerations measured by the test dummy's head in the test. When using 
the 50th-percentile male test dummy, the dynamic performance 
requirements that must be met in the test include a head injury 
criterion (HIC) that is not to exceed 1000 (S9.2.1). If the test dummy 
used in a compliance test of a vehicle tested under the conditions of 
the standard records a HIC of 850, absent other information indicating 
the existence of an unreasonable safety risk, the Agency legally cannot 
declare the protection system defective based on that HIC value alone, 
as the vehicle satisfied the threshold the Agency has established as 
meeting the need for motor vehicle safety.\55\
---------------------------------------------------------------------------

    \53\ Note that other aspects of the vehicle or equipment design, 
construction or performance could lead to a defect determination.
    \54\ 49 CFR 214, S9.
    \55\ Of course, evidence that the system fails sporadically, 
wears prematurely, or otherwise has problems, could be the basis for 
a defect determination.
---------------------------------------------------------------------------

    However, just as evidence of FMVSS compliance can serve as a 
logical constraint as to the existence of a potential defect, evidence 
of FMVSS non-compliance can serve as evidence of a defect. In other 
words, evidence that a vehicle would not likely meet a performance 
standard established in an FMVSS, even if the Agency could not 
precisely apply FMVSS test procedures, is evidence the vehicle failed 
to attain the minimum standard for motor vehicle performance set by 
NHTSA. Such a failure can demonstrate that the vehicle failed to 
``protect[ ] the public

[[Page 83151]]

against unreasonable risk of accidents occurring because of the design, 
construction, or performance of a motor vehicle,'' or ``against 
unreasonable risk of death or injury in an accident.'' Such evidence is 
indicative of not only a noncompliance, but also the existence of a 
defect related to motor vehicle safety, which potentially can serve as 
the basis of a defect finding.
    For instance, FMVSS No. 302 establishes requirements for the 
flammability resistance of certain materials in a vehicle's interior 
compartment.\56\ Material shall not burn, nor transmit a flame front 
across its surface, at a rate of more than 102 millimeters (4 inches 
per minute) (S4.3(a)). Under the standard's test procedures, a specimen 
of material is tested in a metal burn cabinet. Each specimen of 
material to be tested must be a rectangle 102 millimeters (4 inches) 
wide by 356 millimeters (14 inches) long, wherever possible, to fit 
between two matching U-shaped frames (S5.2.1, S5.1.3). If NHTSA were 
unable to obtain a specimen from the vehicle large enough to fit in the 
U-shaped frames, the Agency may not be technically capable of meeting 
specifics of the setup requirements of the test procedure. But in 
setting the standard's actual performance requirements, the Agency has 
declared the requisite threshold metric that meets the need for motor 
vehicle safety. If the Agency were to have reason to believe that a 
material used in a vehicle would transmit a flame front at a higher 
rate than specified in FMVSS No. 302 (e.g., in performing an 
examination, the Agency finds that the material combusts immediately), 
it has sufficient authority to pursue a recall of the vehicle based on 
its complementary compliance and defect authorities. The manufacturer's 
duty to ensure its vehicles comply with the standard, and is free from 
defects related to motor vehicle safety, is not affected by the 
Agency's ability to utilize the test procedures fully. Thus, if the 
vehicle does not comply with the standard, the manufacturer must 
fulfill its recall obligations. If the manufacturer does not do so, the 
Agency could investigate the apparent noncompliance, and if necessary, 
potentially use its defect authority to pursue a recall of the vehicle. 
In sum, in addition or as an alternative to evaluating a vehicle's 
compliance with the FMVSS and certification, in appropriate 
circumstances, the Agency may consider whether a particular vehicle 
poses an unreasonable risk to motor vehicle safety. In all 
circumstances, if the Agency has information that indicates a potential 
noncompliance or other safety concern with a vehicle, it will take 
appropriate action.
---------------------------------------------------------------------------

    \56\ 49 CFR 571.302. The materials are: Seat cushions, seat 
backs, seat belts, headlining, convertible tops, arm rests, all trim 
panels including door, front, rear, and side panels, compartment 
shelves, head restraints, floor coverings, sun visors, curtains, 
shades, wheel housing covers, and any other interior materials, 
including padding and crash-deployed elements, that are designed to 
absorb energy on contact by occupants in the event of a crash 
(S4.1). Child restraint systems also must meet FMVSS No. 302 (49 CFR 
571.213, S5.7).
---------------------------------------------------------------------------

V. Request for Comment

    Given the importance of the issues addressed in this notice, and 
consistent with the requirements in 49 CFR part 5.41 and Executive 
Order 13891, ``Promoting the Rule of Law Through Improved Agency 
Guidance Documents,'' the Agency is requesting comments on the 
implications of this interpretation, which may inform future Agency 
rulemaking actions.
    How long do commenters have to submit comments?
    We are providing a 30-day comment period.
    How do commenters prepare and submit comments?
     Comments must be written in English.
     To ensure that comments are correctly filed in the Docket, 
commenters should include the Docket Number shown at the beginning of 
this document in their comments.
     If persons are submitting comments electronically as a PDF 
(Adobe) File, NHTSA asks that the documents be submitted using the 
Optical Character Recognition (OCR) process, thus allowing NHTSA to 
search and copy certain portions of the submissions. Comments may be 
submitted to the docket electronically by logging onto the Docket 
Management System website at http://www.regulations.gov. Follow the 
online instructions for submitting comments.
     Commenters may also submit two copies of their comments, 
including the attachments, to Docket Management at the address given 
above under ADDRESSES.
    Commenters should note that pursuant to the Data Quality Act, in 
order for substantive data to be relied upon and used by the agency, 
the data must meet the information quality standards set forth in the 
OMB and DOT Data Quality Act guidelines. Accordingly, we encourage 
commenters to consult the guidelines in preparing comments. OMB's 
guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines.
    How can commenters be sure that their comments were received?
    If commenters wish Docket Management to notify them upon them 
receipt of their comments, they should enclose a self-addressed, 
stamped postcard in the envelope containing their comments. Upon 
receiving their comments, Docket Management will return the postcard by 
mail.
    How do commenters submit confidential business information?
    If a commenter wishes to submit any information under a claim of 
confidentiality, it should submit three copies of your complete 
submission, including the information claimed to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. In addition, commenters 
should submit two copies, from which they have deleted the claimed 
confidential business information, to Docket Management at the address 
given above under ADDRESSES. When they send a comment containing 
information claimed to be confidential business information, they 
should include a cover letter setting forth the information specified 
in NHTSA's confidential business information regulation.\57\ To 
facilitate social distancing during COVID-19, NHTSA is temporarily 
accepting confidential business information electronically. Please see 
https://www.nhtsa.gov/coronavirus/submission-confidential-business-information for details.
    Will the agency consider late comments?
---------------------------------------------------------------------------

    \57\ 49 CFR part 512
---------------------------------------------------------------------------

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated 
above under DATES. To the extent possible, we will also consider 
comments that Docket Management receives after that date. If Docket 
Management receives a comment too late for us to consider, we will 
consider that comment as an informal suggestion for future 
consideration.
    How can the public read the comments submitted by other people?
    Persons may read the comments received by Docket Management at the 
address given above under ADDRESSES. The hours of the Docket are 
indicated above in the same location. Persons may also see the comments 
on the internet. To read the comments on the internet, go to http://www.regulations.gov.

[[Page 83152]]

Follow the online instructions for accessing the dockets.
    Please note that, even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
we recommend that interested persons periodically check the Docket for 
new material.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.94, 1.95, 501.5, and 501.8.
Jonathan Charles Morrison,
Chief Counsel.
[FR Doc. 2020-28107 Filed 12-18-20; 8:45 am]
BILLING CODE 4910-59-P


