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

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

Topics: Federal Motor Vehicle Safety Standards

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

Jonathan Charles Morrison
National Highway Traffic Safety Administration
21 December 2020

[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]

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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.

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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.
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\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.
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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.
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\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).
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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.
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\6\ 49 U.S.C. 30115.
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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\
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\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.
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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.
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\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.
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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\
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\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'').
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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\
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\11\ See 49 U.S.C. 30115(a).

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[[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.
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\12\ 49 U.S.C. 30102(a)(10).
\13\ 49 U.S.C. 30111(a).
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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.
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\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.
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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.
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\18\ 49 U.S.C. 30112.
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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\
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\19\ 49 U.S.C. 30111.
\20\ 49 U.S.C. 30115.
\21\ Id.
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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\
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\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.'').
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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:
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\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\
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\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\
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\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.
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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\
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\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.
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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.
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\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.''
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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\
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\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.
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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.
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\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.
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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.'')
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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\
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\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.
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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).
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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.
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\39\ 49 CFR 571.126, S6.3.5.
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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\
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\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).
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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\
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\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.
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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\
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\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).
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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\
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\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\
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\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.
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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.
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\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).
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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\
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\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.
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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.
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\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).
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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?
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\57\ 49 CFR part 512
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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]
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[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Notices]
[Page 2732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: C1-2020-28107]

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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

Correction

In notice document 2020-28107 appearing on pages 83143-83152 in the
issue of Monday, December 21, 2020, make the following correction:
(1) On page 83143, in the second column, in the DATES section,
change ``January 20, 2021'' to read ``January 21, 2021.''

[FR Doc. C1-2020-28107 Filed 1-12-21; 8:45 am]
BILLING CODE 1301-00-D