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NHTSA Revisits Previous Guidance on FMVSS Test Procedures, Opening Path for Innovative Vehicle Designs for Automated Vehicles; Invites Public Comment

December 22, 2020

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On December 21, 2020, the National Highway Traffic Safety Administration (NHTSA) published a Notice of interpretation that revises some previous guidance on options for certifying compliance with Federal Motor Vehicle Safety Standards (“FMVSS”). Specifically, it supersedes a 2016 interpretation letter to Google, Inc., where NHTSA stated that manufacturers could not certify FMVSS compliance unless vehicles were capable of being tested using certain test procedures associated with the standards. The notice clarifies that manufacturers can certify compliance with FMVSS using other reasonable testing methods. This clears a path for manufacturers to design vehicles in innovative ways (such as without steering wheels) without necessarily needing to ask for an FMVSS exception, as long as vehicles otherwise comply with FMVSS.

The December guidance draws a distinction between FMVSS requirements and the test procedures to ensure compliance. Manufacturers of motor vehicles sold in the United States must certify that vehicles comply with all applicable FMVSS. In addition to particular performance standards, FMVSS often include specific test procedures describing how the agency verifies compliance with particular standards. For instance, FMVSS No. 126 (“Electronic stability control systems for light vehicles”) requires that certain vehicles be equipped with electronic stability control systems that are capable of, among other things, applying brake torque individually to all wheels using a control algorithm. FMVSS No. 126 also describes a test procedure in which the agency uses equipment to change the angle of the vehicle’s steering wheel while the vehicle is in motion.

NHTSA’s December interpretation provides that, while test procedures provide transparency on how NHTSA will test for FMVSS compliance, they are not themselves performance requirements. While manufacturers must certify compliance with FMVSS performance standards, they need not design vehicles such that compliance can be certified using the specific test procedures described in the regulations.

NHTSA states that this guidance is consistent with the Safety Act and affirms a “longstanding interpretation” that FMVSS test procedures are “for NHTSA’s own use, and need not be used by manufacturers,” who may have other good faith bases to certify FMVSS compliance. NHTSA indicates that its 2016 interpretation was “incorrect,” construed the testing requirements “too restrictively,” and that the 2016 approach “stifles innovation and unfairly punishes manufacturers seeking to implement innovative technologies.”

NHTSA notes, however, that some FMVSS requirements may impact design choice. For instance, FMVSS No. 135 (“Light vehicle brake systems”) requires light vehicle brakes be activated by “foot control.” For such requirements, manufacturers would still need to seek exemptions from the agency to deviate from those designs, at least until such requirements are removed or modified through NHTSA’s rulemaking processes.

NHTSA’s notice of interpretation also provides guidance on how it may test and ensure compliance where vehicles may not be tested using FMVSS test procedures. For example, NHTSA may review a manufacturer’s alternative test procedures it used in certifying compliance and use its “own engineering judgment” in determining whether vehicles comply with FMVSS. Where a manufacturer is found to have certified FMVSS compliance without “reasonable care” or a vehicle is determined to be defective, the agency may issue recalls or penalties.

NHTSA requests public comment on the implications of this interpretation, which “may inform future Agency rulemaking actions.” Comments are due by January 20, 2021.

NHTSA also has revisited test procedures through other ANPRMs. For example, on December 10, NHTSA invited comments on test procedures that may be candidates for replacement, repeal, or modification. NHTSA included as examples procedures that assume certain design choices, such as a vehicle having a conventional internal combustion engine, or that otherwise fail to account for modern vehicle design. That ANPRM requests comments on whether certain test procedures should be updated for newer systems, such as rain sensor technology, and more generally. Comments on that ANPRM are due by February 8, 2021.

If you have questions or concerns about this notice of interpretation, ANPRM, or any other topics related to automated vehicle regulation, or would like to submit a comment to NHTSA, O’Melveny attorneys are available to assist you.


This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Melody Drummond Hansen, an O'Melveny partner licensed to practice law in California, the District of Columbia, and Illinois, and Jason A. Orr, an O'Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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