83143 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Notices 
149 U.S.C. 30101, et seq. 
249 U.S.C. 30112, 30115. 
3Letter to C. Urmson, Google (Feb. 4, 2016), 
https://www.nhtsa.gov/interpretations/google- 
compiled-response-12-nov-15-interp-request-4-feb- 16-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 Act1(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.
2In 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.
4This 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 
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5Some FMVSSs also specifically require certain 
items of equipment, such as a sun visor (FMVSS 
No. 201) or a brake pedal (FMVSS No. 135). 649 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). 
10Id. 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,
5measured 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.’’
6In 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)
8and 
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.
9Thus, 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 
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1249 U.S.C. 30102(a)(10). 
1349 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). 
15Ibid., 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. 
1849 U.S.C. 30112. 1949 U.S.C. 30111. 
2049 U.S.C. 30115. 
21Id. 
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%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.’’) 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.’’
12Per the Safety Act, 
each standard must be practicable, meet the need for motor vehicle safety, and be stated in objective terms.
13Currently, 
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 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.’’
14Clear, 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.’’
15The test conditions 
and procedures both assist in providing notice of what performance is required under an FMVSS,
16and, 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.
18Second, 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.
19However, 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.
20Specifically, 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.
22NHTSA 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 
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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.’’). 
24In 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. 
2876 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. 
30Google’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 ‘‘Self- 
Driving System’’ or ‘‘SDS’’ rather than the more- current term ‘‘ADS.’’ 
32Letter to C. Urmson, Google (Feb. 4, 2016), 
https://www.nhtsa.gov/interpretations/google- compiled-response-12-nov-15-interp-request-4-feb- 16-final. 
33Id. 
34Id. (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.’’
32The 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 
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.’’
34The 
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 
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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.
35Manufacturers 
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.
36The 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, 
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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). 
3949 CFR 571.126, S6.3.5. 4049 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. 
4349 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.
38By 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,
39it 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 
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44In 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.
46In 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 
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4849 U.S.C. 30118(a). 
49See 49 U.S.C. 30118(c)(2). 5049 U.S.C. 30111(a) (emphasis added). 
51See, e.g., 49 U.S.C. 30112 (a) and (c), 30116, 
and 30118–20 (emphasis added). 
5249 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. 
5449 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.’’
48Should 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 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.’’
50Under 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;
51the 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.’’
52This 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. 
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.
53For 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.
54The 
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 
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5649 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). 
5749 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.
56Material 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.
57To 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? 
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. 
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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 
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