Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 83143 

1 49 U.S.C. 30101, et seq. 

2 49 U.S.C. 30112, 30115. 

3Letter to C. Urmson, Google (Feb. 4, 2016), 

https://www.nhtsa.gov/interpretations/googlecompiled-response-12-nov-15-interp-request-4-feb16-final. 

4For 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. 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

The Department of Transportation 

Privacy Act Statement can be viewed in 

the Federal Register published on April 

11, 2000 (Volume 65, Number 70, pages 

19477–78) or by visiting http://

www.regulations.gov. 

Authority: 33 U.S.C. 1501, et seq., 49 CFR 

1.93(h). 

Dated: December 16, 2020. 

By Order of the Maritime Administrator. 

T. Mitchell Hudson, Jr., 

Secretary, Maritime Administration. 

[FR Doc. 2020–28044 Filed 12–18–20; 8:45 am] 

BILLING CODE 4910–81–P 

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. 

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 

83144 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 

5Some FMVSSs also specifically require certain 

items of equipment, such as a sun visor (FMVSS 

No. 201) or a brake pedal (FMVSS No. 135). 

6 49 U.S.C. 30115. 

7NHTSA 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. 

8For 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. 

9See 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’’). 

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

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. 

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. 

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

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. 

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

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

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 83145 

12 49 U.S.C. 30102(a)(10). 

13 49 U.S.C. 30111(a). 

14Chrysler 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. 

16See, United States v. Chrysler Corp. 158 F.3d 

1350 (DC Cir. 1998). 

17When 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. 

18 49 U.S.C. 30112. 

19 49 U.S.C. 30111. 20 49 U.S.C. 30115. 21 Id. 22See, 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%20

underride%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.’’) 

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. 

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 realworld 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. 

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 

§ 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. 

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

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 

83146 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 

23See, 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.’’). 

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. 

25See, 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. 

26Letter to A. Ughini Jr., Marcopolo SA (June 24, 

2002) https://isearch.nhtsa.gov/files/24423-2.html. 27For 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. 

28 76 FR 15903, 15908 (Mar. 22, 2011), Response 

to petition for reconsideration, Roof crush 

resistance. 

29The 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. 

30 Google’s interpretation request and NHTSA’s 

response can be found here: https://

www.regulations.gov/document?D=NHTSA-2016- 

0009-0001. 

31The Google interpretation uses the term ‘‘SelfDriving System’’ or ‘‘SDS’’ rather than the morecurrent term ‘‘ADS.’’ 

32Letter to C. Urmson, Google (Feb. 4, 2016), 

https://www.nhtsa.gov/interpretations/googlecompiled-response-12-nov-15-interp-request-4-feb16-final. 

33 Id. 

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. 

manufacturer] is under no obligation to 

repeat the procedures of the 

standards.’’ 23

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: 

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

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

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

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. 

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 selfcertification system for compliance, 

NHTSA’s verification of a 

manufacturer’s compliance . . . is based 

on our established test procedures.’’ 33

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 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 83147 

35See also 49 CFR 5.69 (‘‘Notice to the regulated 

party is a due process requirement.’’) 

36See 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.’’). 

37See id. 

testing using the test conditions and 

procedures specified in the FMVSS, 

Google must seek exemptions under 49 

CFR part 555. 

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. 

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

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, 

83148 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 

38See 85 FR 7826, 7834–36 (Feb. 11, 2020) 

(discussing request from Nuro, Inc. for an 

exemption from portions of FMVSS No. 111 test 

procedures). 39 49 CFR 571.126, S6.3.5. 

40 49 U.S.C. 30112, 49 U.S.C. 30115. 

41A 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). 

42A 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. 

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. 

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. 

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

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

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 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 83149 

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). 

45See 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). 

46This 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. 

47For 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. 

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

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

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

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 

83150 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 

48 49 U.S.C. 30118(a). 

49See 49 U.S.C. 30118(c)(2). 

50 49 U.S.C. 30111(a) (emphasis added). 

51See, e.g., 49 U.S.C. 30112 (a) and (c), 30116, 

and 30118–20 (emphasis added). 

52 49 U.S.C. 30102(a)(9). 

53Note that other aspects of the vehicle or 

equipment design, construction or performance 

could lead to a defect determination. 

54 49 CFR 214, S9. 

55Of course, evidence that the system fails 

sporadically, wears prematurely, or otherwise has 

problems, could be the basis for a defect 

determination. 

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. 

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 selfcertification. 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 noticeand-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 FMVSSsetting 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. 

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

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 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 83151 

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). 57 49 CFR part 512 

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. 

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-businessinformation for details. 

Will the agency consider late 

comments? 

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. 

83152 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 

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 

DEPARTMENT OF TRANSPORTATION 

[Docket Number: DOT–OST–2020–0254] 

Request for Information for the 

Inclusive Design Reference Hub 

AGENCY: Office of the Secretary of 

Transportation (OST), Department of 

Transportation. 

ACTION: Notice; request for information 

(RFI). 

SUMMARY: In July 2020, as part of an 

event celebrating the 30th anniversary 

of the Americans with Disabilities Act, 

DOT committed to undertake a new 

initiative to establish a library of 

resources for accessibility in 

automation, and work with outside 

experts to study voluntary best practices 

for ensuring accessibility in automated 

vehicles. DOT invites stakeholders to 

provide input on critical first steps in 

this process, the qualifications of 

entities that are best suited to perform 

this work, and considerations to ensure 

long-term sustainability of this 

initiative. This notice is not a 

Solicitation, and it does not seek the 

submission of formal, binding 

quotations/proposals. In the event OST– 

P determines that services will be 

procured, a formal Request for Quote/ 

Proposal will be issued. OST–P cannot 

and will not reimburse any organization 

for its time, effort, or costs expended in 

responding to this RFI. 

DATES: Responses to the RFI must be 

received by January 20, 2021, no later 

than 5:00 p.m. (ET) to ensure 

consideration of your views. 

ADDRESSES: Written comments may be 

submitted using any one of the 

following methods: 

• Electronic mail: Email comments to 

inclusivedesign@dot.gov with a courtesy 

copy to Robin.Gates@dot.gov. Responses 

must be provided as attachments to an 

email. It is recommended that 

attachments with file sizes exceeding 

25MB be compressed (i.e., zipped) to 

ensure message delivery. Responses 

must be provided as a Microsoft Word 

(.docx) attachment to the email, and be 

no more than 5 pages in length, with 12- 

point font and 1-inch margins. 

• Internet: To submit comments 

electronically, go to the Federal 

regulations website at http://

www.regulations.gov. Search by using 

the docket number (DOT–OST–2020– 

0254). Follow the online instructions for 

submitting comments. 

Respondents may answer as many or 

as few questions (see the questions 

below) as they wish. 

DOT will not respond to individual 

submissions or publish publicly a 

compendium of responses. A response 

to this RFI will not be viewed as a 

binding commitment to develop or 

pursue the project or ideas discussed. 

Respondents are requested to provide 

the following information at the 

beginning of their response to this RFI: 

• Company/institution name 

• Company/institution contact 

• Contact’s address, phone number, and 

email address 

Proprietary Information 

Because information received in 

response to this RFI may be used to 

structure future programs and/or 

otherwise be made available to the 

public, respondents are strongly advised 

to NOT include any information in their 

responses that might be considered 

business sensitive, proprietary, or 

otherwise confidential. However, 

respondents may choose to include such 

information in their submissions if they 

believe it will significantly assist DOT 

in the design of the program. 

Responses containing confidential, 

proprietary, or privileged information 

must be conspicuously marked as 

described below. Failure to comply with 

these marking requirements may result 

in the disclosure of the unmarked 

information under the Freedom of 

Information Act, 5 U.S.C. 552. 

If a response contains trade secrets or 

confidential commercial or financial 

information, the respondent must 

include a cover sheet identifying the 

specific pages containing that 

information. The cover sheet must also 

provide evidence that the respondent 

actually or customarily treats the 

information as private. 

In addition, the respondent must (1) 

mark the header and footer of every 

page that contains trade secrets or 

confidential commercial or financial 

information with ‘‘Contains 

Confidential Information Exempt from 

Public Disclosure’’ and (2) identify 

every line and paragraph containing 

such information with double brackets 

or highlighting. 

FOR FURTHER INFORMATION CONTACT: The 

monitored inbox at inclusivedesign@

dot.gov. You may also contact the 

Contracting Officer, Robin Gates, at 

Robin.Gates@dot.gov or (202) 366–1408. 

Please reference ‘‘RFI for Inclusive 

Design Reference Hub’’ in the subject 

line when submitting your response. 

DOT looks forward to your 

submission in response to this notice. 

SUPPLEMENTARY INFORMATION: 

Summary 

The purpose of this RFI is to collect 

input on a proposed initiative to 

establish and curate a library of existing 

technical specifications, voluntary 

consensus or consortia standards, and 

best practices and a roadmap of such 

resources that may be needed to enable 

accessibility of automated vehicles for 

persons with physical, sensory, and 

cognitive disabilities. This initiative, 

tentatively entitled the Inclusive Design 

Reference Hub, will involve 

consultation with a range of 

stakeholders. This RFI will serve to 

refine DOT’s vision, next steps, and 

long-term ownership and maintenance 

plan for this initiative. Respondents are 

encouraged to visit https://

www.transportation.gov/accessibility for 

more information on DOT’s accessibility 

initiatives. 

Background 

As transportation evolves, DOT is 

committed to a more accessible future 

and exploring accessibility 

opportunities that may materialize as 

vehicles and mobility services evolve. 

DOT encourages research into 

technologies that have the potential to 

remove barriers to accessibility in the 

transportation system and will seek to 

complement research done by leading 

academic institutions, the private sector 

and other entities to fill gaps that 

industry is not already covering. To this 

end, DOT recently announced its intent 

to establish a library of resources for 

accessibility in automation, and to work 

with outside experts to study voluntary 

best practices for ensuring accessibility 

in automated vehicles. 

Needs Statement 

DOT has made early investments 

intended to begin unlocking this 

potential through its Accessible 

Transportation Technologies Research 

Initiative (ATTRI), the Inclusive Design 

Challenge, the Complete Trip—ITS4US 

Deployment Program, and numerous 

research projects. Industry stakeholders 

and others have reported difficulty in