In December 2020, NHTSA posted a significant Notice of Interpretation with important ramifications for manufacturers of autonomous vehicles. The Notice Regarding the Applicability of NHTSA FMVSS Test Procedures to Certifying Manufacturers updates the Agency’s position taken in a 2016 letter to Google on the relationship between FMVSS and AVs with novel designs lacking traditional controls, e.g. a steering wheel, brake pedal, etc.

Traditionally, under NHTSAs self-certification process, manufacturers were not required to test a vehicle’s performance under the specific conditions of a particular FMVSS. Instead, generally speaking, they were permitted to self-certify using simulations or engineering analysis. But despite alternatives to certification through testing by the manufacturer, the FMVSS themselves still provided a means for actually testing vehicles against defined performance criteria. The issue in this recent notice, however, “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.” As with the previous 2016 Google interpretation, this is particularly significant for vehicles designed without manual controls like a steering wheel or brake pedal.

In its 2016 Google letter, NHTSA stated that a manufacturer could not certify a vehicle as compliant unless the Agency was able to perform testing using its FMVSS test conditions and procedures. Following that 2016 letter, manufacturers of autonomous vehicles with unique vehicle controls were essentially forced to pursue the burdensome FMVSS exemption process or risk enforcement actions by NHTSA for failure to properly certify their vehicle to the FMVSS test conditions.

But in this new interpretation NHTSA changed its course, stating that manufacturers of vehicles without traditional controls are not bound by the FMVSS test procedures as their basis for certification. The notice goes on to say:

“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.”

In making this change, NHTSA signaled a recognition that its previous approach could stifle innovation in the autonomous vehicle space. The new approach suggests the Agency does not want the strict FMVSS compliance approach to impose design constraints on manufacturers of vehicles with autonomous controls or ADAS features.

Despite this new interpretation, NHTSA’s recent interpretation  reaffirms that “[v]ehicles with novel designs are held to the same performance standards as vehicles with traditional designs” and manufacturers are required to exercise reasonable care in certifying these vehicles as compliant with FMVSS. The notice is less clear, however, on how manufacturers of ADS vehicles ought to certify these vehicles and how NHTSA might enforce non-compliance. NHTSA suggests that it might contract with independent laboratories to conduct compliance testing, using computer simulations or alternative testing scenarios. If a potential non-compliance is found, NHTSA may continue to investigate or issue a recall. Notably, the notice states that the introduction of new ADS designs will likely force the agency to adapt existing FMVSS test procedures to the novel vehicle configurations.

In sum, through this new notice of interpretation, NHTSA is cementing self-certification as the foundation of the Safety Act, while reducing the unpredictable nature of certification and/or exemption processes for AVs, and at the same time  preserving and emphasizing its authority to investigate and enforce non-compliance using alternative methods.

Notably, this notice follows NHTSA’s November ANPRM, which invited public input to provide the agency with information to help devise a “Framework for Automated Driving Safety.” These combined actions signal a possible shift in NHTSA’s historically passive approach to regulation of AVs and ADAS systems and more activity may be on the horizon in 2021.

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Photo of Jesse S. Halfon Jesse S. Halfon

Jesse S. Halfon is an attorney in the Automotive and Products Liability practice in Dykema’s Ann Arbor, Michigan office. Mr. Halfon is experienced in managing electronic discovery for class action and products liability cases. He has also managed caseloads at prior firms and…

Jesse S. Halfon is an attorney in the Automotive and Products Liability practice in Dykema’s Ann Arbor, Michigan office. Mr. Halfon is experienced in managing electronic discovery for class action and products liability cases. He has also managed caseloads at prior firms and corporations including involvement in all areas of case development and strategy, conducting jury and bench trials, drafting of pleadings as well as arguing evidentiary and dispositive motions.