ID: GF009787

Mr. Dale Kardos
Dale Kardos & Associates, Inc.
3906 Huntington Street, NW
Washington, DC 20015




Dear Mr. Kardos:

This responds to your letter asking whether a "keyless-go" key-locking system being contemplated by your client would meet the requirements of S4.2 of Federal motor vehicle safety standard (FMVSS) No. 114, Theft protection.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements.  The following represents our opinion based on the facts you provided in your letter.

Your letter describes a "keyless-go" system that unlocks the door when an electronic key code is transmitted from the key to the vehicle.If the door is opened following transmission of the key code to the vehicle, the steering column is automatically unlocked.For engine activation, an operator must insert the key into the electronic ignition lock. As soon as the key is removed from the electronic ignition lock, the steering column locks, the immobilizer is activated, and the electronic key code is removed from the system.

You ask if S4.2 of FMVSS No. 114 permits a system that unlocks the steering column when an electronic key code is transmitted from the key to the vehicle, and the driver opens the door.

S4.2 of FMVSS No. 114 reads as follows:

Each vehicle shall have a key-locking system which, whenever the key is removed, prevents:

(a) The normal activation of the vehicle's engine or motor; and

(b) Either steering or forward self-mobility of the vehicle or both.

We note that the standard does not specify under what conditions a steering column may become unlocked.However, the system described in your letter appears to operate in the manner consistent with the requirements of S4.2 because removal of the key from the electronic ignition lock prevents activation of the engine and locks the steering.

NHTSA has issued several letters of interpretation pertaining to keyless systems similar to the one described in your letter (see our 7/17/2002 and 8/15/2002 letters to unnamed parties).You may find these letters useful in ascertaining whether your system complies with other requirements in FMVSS No. 114.

I hope you find this information helpful.If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

2 Enclosures
ref:114
d.2/22/05

ID: GFES04-2-000636

The Honorable John J. Duncan, Jr.
U.S. House of Representatives
Washington, DC 20515-4202

Dear Congressman Duncan:

Thank you for your letter on behalf of your constituent, Mr. Jon Schaffer.
Mr. Schaffer is interested in marketing a new product and asks whether the Federal motor vehicle safety standards (FMVSSs) permit flashing stop lamps. As discussed below, the answer is no.

By way of background, the National Highway Traffic Safety Administration is authorized to issue motor vehicle safety standards that apply to the manufacture and sale of new motors and new motor vehicle equipment, in order to reduce the number of fatalities and injuries that result from motor vehicle crashes.

The Federal standard applicable to lighting equipment is FMVSS No. 108, Lamps, Reflective Devices and Associated Equipment.The relevant section of that standard reads as follows:

"S5.5.10 The wiring requirements for lighting equipment in use are:


(a) Turn signal lamps, hazard warning signal lamps, and school bus warning lamps shall be wired to flash;
(b) Headlamps and side marker lamps may be wired to flash for signaling purposes;
(c) A motorcycle headlamp may be wired to allow either its upper beam or its lower beam, but not both, to modulate from a higher intensity to a lower intensity in accordance with section S5.6;
(d) All other lamps shall be wired to be steady-burning" [emphasis added].

In short, S5.5.10(d) of FMVSS No. 108 mandates that all lamps be steady burning, unless otherwise permitted. In the present case, stop lamps do not fall under any exception enumerated in S5.5.10 (a) through (c). Accordingly, stop lamps must be steady burning and cannot be flashing.

We believe that motor vehicle safety is best promoted by standardization of lighting signals. The information currently provided by signal lamps, such as stop lamps, is well understood by the driving public, is instantly recognized and unambiguously informative.

While we recognize that a new idea for the operation of signal lighting might improve safety, we have taken the position that, given the safety benefits associated with the standardized operation and meaning of required lighting, the burden is on the proponents of a new signaling idea to demonstrate that the use of the new idea would yield a positive safety benefit large enough to more than offset the adverse safety effects of giving up the standardized operation and meaning of signal lights. We have enclosed a copy of a November 4, 1998, Federal Register notice which fully explains our policies concerning evaluating new signal lighting ideas.

In his letter to your office, Mr. Schaffer mentioned a Tennessee law permitting flashing stop lamps on motorcycles.For your reference, enclosed please find our January 14, 2004, letter to the manager of City of Memphis Motor Vehicle Inspection Bureau, in which we inform him that FMVSS No. 108 does not permit flashing stop lamps on motorcycles.

With respect to Mr. Schaffers question about Federal preemption of State laws, 49 U.S.C. 30103(b)(1) provides in pertinent part:

"Preemption. When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter."

This means that, under 49 U.S.C. 30103(b)(1), a State cannot authorize flashing stop lamps since the applicable Federal motor vehicle safety standard prohibits such lighting devices.

We further note that installation of a non-steady burning lamp by a manufacturer, dealer, distributor, or motor vehicle repair business after the initial sale is subject to the restrictions of 49 U.S.C. 30122, which prohibits "making inoperative, in whole or in part" any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. Depending on the circumstances, installation of a non-steady burning lamp after the initial sale of a vehicle could be viewed as a violation of this "make inoperative" provision.

I hope you find this information helpful. If you need further assistance, please contact Stephen Wood, Assistant Chief Counsel for Vehicle Safety Standards and Harmonization,at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:108
d.2/6/04

ID: glazingquestions23315

Byung-Jae Yoon, President
Dae Kwang Special Glass Co., Ltd.
25-2, Palyong-Dong
Changwon-Si
Kyeong-Nam 641-405, Korea





Dear Mr. Yoon:

Your letter to the National Highway Traffic Safety Administration (NHTSA) regarding the use of your DOT code has been referred to my office for reply. I apologize for the delay in responding. You ask 1) whether you can mold the DOT code on glass that you manufacture for off-road equipment, 2) whether you must self-certify your products, 3) whether your "coding plan," as provided through an example, is correct, and 4) whether your DOT code needs to be updated every two to three years.

By way of background information, NHTSA has the authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. For that reason, NHTSA does not approve or conduct testing of products prior to their introduction into the retail market. Rather, we enforce compliance with the standards by purchasing vehicles and equipment and testing them. We also investigate safety-related defects.

Pursuant to NHTSA's authority, the agency has established FMVSS No. 205, Glazing Materials (49 CFR 571.205). FMVSS No. 205 incorporates by reference the American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways" Z-26.1-1977, January 26, 1977, as supplemented by Z26.1a, July 3, 1980 (ANS Z26)." FMVSS No. 205 and ANS Z26 specify performance requirements for various types of glazing (called "items") and specify the locations in vehicles in which each item of glazing may be used.

You first ask whether you may mold your DOT code on your products manufactured for use on off-road equipment. The answer is yes. However, all glazing that is marked with the DOT code must comply with the marking and certification requirements set forth in FMVSS No. 205. S6 of Standard No. 205 establishes marking and certification requirements for manufacturers and distributors of glazing materials. S6.1 requires every "prime glazing material manufacturer" (defined in S6.1 of Standard No. 205 as "one who fabricates, laminates, or tempers the glazing material") to mark all glazing materials it manufactures in accordance with section 6 of ANS Z26. S6.3 requires each prime glazing manufacturer to certify each piece of glazing designed to be cut into components for use in motor vehicles pursuant to the requirements of our statute at 49 U.S.C. 30115. Each manufacturer or distributor who would not be considered a "prime glazing material manufacturer," but who cuts a section of glazing material to which Standard No. 205 applies, must comply with the requirements set forth in S6.4 and S6.5 of Standard No. 205. For sections of glazing that are cut by the manufacturer or distributor, the manufacturer or distributor must mark it in accordance with section 6 of ANS Z26 (S6.4) and certify it in accordance with 49 U.S.C. 30115.

Second, you ask whether your own certification showing that your products passed your own test requirements meeting FMVSS No. 205 is "good enough when they require us to issue certification." Each of the FMVSSs specifies the test conditions and procedures that NHTSA will use to evaluate whether a vehicle or equipment item conforms to the standard's performance requirements. However, the agency does not require a manufacturer to crash test vehicles or to evaluate its products only in the manner specified in the safety standards. A manufacturer may choose any means of evaluating a vehicle or equipment item to determine whether it complies with the requirements of the applicable FMVSS, provided that the vehicle or item does comply.

Third, you ask several questions regarding your "coding plan" for your products. As a preliminary matter, the designations AS1 and AS2 are codes required on glazing materials by section 6 of ANS Z26 which describe the locations in which the items of glazing are used. These items of glazing must meet the prescribed tests and locations described in sections 4 and 5 of ANS Z26 and in FMVSS No. 205. A copy of ANS Z26 is enclosed. Based on the information provided in your letter, your coding plan does not appear to be correct as different types of glazing, e.g., laminated and tempered, are typically not combined in the same piece of glazing. Coding as described in your letter (AS1 and AS2 with arrows) typically specifies different items of glazing based on differing levels of transparency. (In your letter you incorrectly refer to Items 1 and 2 as AS1 and AS2.) Further, laminated and tempered glass, depending on various factors such as location in vehicle, use, and transparency, may possibly be characterized as item 3 through item 16 glazing. For this reason, you need to examine each item listed in FMVSS 205 and ANS Z26 to determine how to classify and label your glazing. If, after examining FMVSS No. 205 and ANS Z26, you write us again with more information about a particular item of glazing or a glazing code, we would be happy to provide an interpretation as to whether it is correct.

Fourth, you ask whether your DOT code needs to be renewed every two to three years. The answer is no. Under our current requirements, you may continue to use your manufacturer code mark assigned by DOT indefinitely.

For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:205
d.4/1/02

ID: GM3.crs

Via Facsimile and Regular Mail

Howard A. Silverman, Esquire
General Motors Corporation
Legal Staff
Mail Code 480-106-304
Research Engineering Building
30500 Mound Road
Warren, Michigan 49090-9055





Dear Mr. Silverman:

This is in response to your letter of June 7, 2000, requesting an interpretation of the vehicle certification regulations at 49 CFR Part 567. Section 567.4(g) of those regulations prescribes the contents of the certification label that manufacturers are required to affix to new motor vehicles. One item of information that the certification label must contain is the name of the vehicle's manufacturer. Section 567.4(g)(1) provides that the "full corporate or individual name of the actual assembler of the vehicle" must be stated on the certification label, unless any of three specified exceptions apply. The only pertinent exception is the one stated at section 567.4(g)(1)(i). That section provides that "[i]f a vehicle is assembled by a corporation that is controlled by another corporation that assumes responsibility for conformity with the standards, the name of the controlling corporation may be used."

In your letter, you have asked whether General Motors Corporation's (GM's) name can appear on the certification label of the future Hummer H2. You state that GM is solely responsible for the design of this vehicle, which is based on a current GM model. You further state that GM is solely responsible for manufacturing and purchasing all of the parts used to make the vehicle, with the exception of those that you identify as "indirect materials." As described in your letter, these parts will be shipped by GM and its suppliers to an assembly plant built and operated by AM General Corporation (AMG) as a subcontractor to GM, where the vehicles will be assembled and finished. The vehicles will then be delivered to GM for inspection, acceptance, and shipment to GM dealers, which will be exclusively responsible for their sale to the public. Pursuant to a contract that it has entered with AMG, GM will provide the new vehicle warranty to dealers and customers. Your letter states that GM is further "responsible for warranty and recall campaign administration and for representing GM and AMG in connection with any requests for information and allegations about alleged safety defects or noncompliance with safety or emissions laws and regulations."

In light of these circumstances, you contend that it is appropriate for GM's name to appear on the certification label for the Hummer H2 because "GM is the 'manufacturer,' as that term is used in the certification statute," and "the assembler is 'controlled' by GM and GM has assumed responsibility for conformity with the Federal Motor Vehicle Safety Standards, as provided in 567.4(g)(1)(i)." You observe that GM's agreement with AMG provides that GM has "responsibility for product engineering related to the [Hummer H2], including but not limited to testing, certification and compliance with applicable governmental regulations and shall be considered the Original Equipment Manufacturer of the [Hummer H2]." Noting that "GM is the final decision-maker on recalls and conducts recall campaigns," you state that with respect to this vehicle, "GM has assumed responsibility for conformity with standards and the consequences of non-conformity."

You further contend that with respect to the Hummer H2, GM "controls" AMG in the sense that is contemplated within the certification regulations. Although you acknowledge that GM owns no AMG stock, you assert that GM's "control" over AMG is evidenced by the fact that under its agreement with AMG, GM is responsible not only for product engineering, but also "has the right to approve the Vehicle Assembly Specifications and Quality Control Standards." Additionally, you note that "GM has the opportunity to inspect the vehicle assembly process and to inspect vehicles before accepting them."

You note that in an October 13, 1981 letter to Paccar, Inc., this Office stated that Paccar's name could appear on the certification labels for vehicles assembled by Kenworth Mexicana, a Mexican affiliate. The letter observed that even though Paccar owned only a 49 percent interest in Kenworth Mexicana, it was responsible for the design of the vehicles produced in Mexico and exercised control over all matters relating to their compliance with safety standards. In this circumstance, the letter concluded that Paccar's name could appear on the certification label, notwithstanding its less than majority interest in the Mexican company. The letter noted that

the agency has previously stated in one of its interpretations that the "purpose of the manufacturer's designation in the certification regulations is to identify the company that has primary technical responsibility for conformity of the design and quality control of the assembly." Particularly with respect to the design aspects, Paccar meets this test.

Applying this interpretation, you suggest that NHTSA's focus should be on whether the company that seeks to have its name appear on the certification label has "primary technical responsibility" for the vehicle. You contend that "[w]hether that responsibility is established by contract or by partial ownership is not material." You observe that "GM will have total, not just primary, responsibility for conformity of the design of [the Hummer H2]," and that "GM's responsibility for these vehicles is no less than was Paccar's even though GM does not own AMG stock."

Notwithstanding the broad responsibility that you have identified GM as assuming with respect to the Hummer H2, we have concluded that GM may not be identified as the manufacturer on the certification labels to be affixed to those vehicles. In reaching this conclusion, we are principally motivated by the fact that AMG, and not GM, will be the "actual assembler" of the Hummer H2, and that GM does not "control" AMG, in the sense that it lacks any equity interest in that company. Unless GM were the "actual assembler" of the Hummer H2, or "controlled" the actual assembler, there is no basis for its name to appear on the certification label as the vehicle manufacturer under the express requirements of 49 CFR 567.4(g)(1), or under the exception to those requirements stated at 49 CFR 567.4(g)(1)(i).

In contrast to this circumstance, we observed in our letter of October 13, 1981, permitting Paccar to be identified as the manufacturer of vehicles assembled by Kenworth Mexicana, that Paccar held a 49 percent ownership interest in Kenworth Mexicana, the maximum permitted under Mexican law. We further noted that allowing Paccar to be identified as the manufacturer in this instance was in keeping with the reasons the agency had articulated for adopting the "controlling corporation exception to the requirement that the vehicle assembler's name must appear on the certification label." The letter stated that this exception was adopted

in recognition of the fact that "particularly in some foreign countries, assembly of a vehicle may be performed by a subsidiary corporation controlled by a parent that is the generally known 'nameplate company.'" The agency determined that in such a situation, "no important purpose is served by requiring the name of a lesser-known subsidiary corporation on the label." See 34 FR 11360, July 9, 1969.

Because GM owns no stock in AMG, and because both companies are domestic entities, these factors, which influenced our decision to allow Paccar to be identified as the manufacturer of vehicles assembled by Kenworth Mexicana, are not present here.

If GM wishes its name to appear on the certification label for the Hummer H2, there is nothing to preclude the label from stating that the vehicle was manufactured by AMG for GM. We are aware of circumstances in which such wording has been used on the certification labels of vehicles manufactured by one company for another. Enclosed for your reference is a copy of such a certification label, from a 1997 Ford Aspire, which identifies the vehicle as being manufactured "by Kia Motors Co. for Ford Motor Co." Please note that if the certification label states that the vehicle was manufactured by AMG for GM, AMG would have responsibility for the vehicle with respect to all requirements imposed under the Corporate Average Fuel Economy program.

If you have any further questions regarding vehicle certification, feel free to contact Coleman Sachs of my staff at 202-366-5238.

Sincerely,

Frank Seales, Jr.
Chief Counsel

Enclosure

ref:567
d.11/15/00

ID: Google -- compiled response to 12 Nov 15 interp request -- 4 Feb 16 final

Chris Urmson

Director, Self-Driving Car Project

Google, Inc.

1600 Amphitheatre Parkway

Mountain View, CA 94043

Dear Dr. Urmson:

This responds to your November 12, 2015 letter[1] requesting that the National Highway Traffic Safety Administration (NHTSA) interpret a number of provisions in the Federal Motor Vehicle Safety Standards (FMVSSs) as they apply to Google’s described design for motor vehicles that it is in the process of developing and testing.  According to Google, those self-driving vehicles (SDVs) are “fully autonomous motor vehicles, i.e., vehicles whose operations are controlled exclusively by a Self-Driving System (SDS).”  The SDS is an artificial-intelligence (AI) “driver,” which is a computer designed into the motor vehicle itself that controls all aspects of driving by perceiving its environment and responding to it.[2]  Thus, Google believes that the vehicles “have no need for a human driver.” 

In this response, NHTSA addresses each of Google’s requests for interpretation, and grants several of them.   In some instances, the issues presented simply are not susceptible to interpretation and must be resolved through rulemaking or other regulatory means.  NHTSA believes that many of these issues may be resolved on an interim basis through well-supported exemption petition(s), and invites Google to file such petitions.  In other instances, if Google is able to provide sufficient additional information and evidence, it may be possible to resolve open issues through interpretations.

INTRODUCTION

Google describes its vehicles as having what NHTSA’s May 2013 Preliminary Statement of Policy Concerning Automated Vehicles calls Level 4 Full Self-Driving Automation.  According to that Statement, a Level 4 vehicle

is designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip. Such a design anticipates that the driver will provide destination or navigation input, but is not expected to be available for control at any time during the trip. This includes both occupied and unoccupied vehicles. By design, safe operation rests solely on the automated vehicle system.

Google is asking for interpretations to determine how it would certify its SDV to the FMVSS.  In essence, Google seeks to produce a vehicle that contains L4 automated driving capabilities, and removes conventional driver controls and interfaces (like a steering wheel, throttle pedal, and brake pedal, among many other things).  Given that the SDS controls all aspects of driving, and given Google’s belief that the SDS consistently will make the optimal decisions for the SDV occupants’ safety (as well as for pedestrians and other road users), the company expresses concern that providing human occupants of the vehicle with mechanisms to control things like steering, acceleration, braking, or turn signals, or providing human occupants with information about vehicle operation controlled entirely by the SDS, could be detrimental to safety because the human occupants could attempt to override the SDS’s decisions.  While the L4 automation is the impetus behind these design decisions, it is Google’s design decisions that create the uncertainty over how to apply the FMVSS to Google’s proposed vehicle. 

Google’s design choices in its proposed approach to the SDV raise a number of novel issues in applying the FMVSSs.  Those standards were drafted at a time when it was reasonable to assume that all motor vehicles would have a steering wheel, accelerator pedal, and brake pedal, almost always located at the front left seating position, and that all vehicles would be operated by a human driver.  Accordingly, many of the FMVSSs require that a vehicle device or basic feature be located at or near the driver or the driver’s seating position.  For vehicles with an AI driver that also preclude any occupant from assuming the driving task, these assumptions about a human driver and vehicle controls do not hold.  As 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.  And since the Safety Act creates a self-certification system for compliance, NHTSA’s verification of a manufacturer’s compliance (and thus, the agency’s ability to enforce against non-compliance) is based on our established test procedures.

In order to determine where to place vehicle devices and features, or whether to provide them at all, Google has asked who or what is to be considered the “driver” and which seating position is considered to be the “driver’s seating position” in its SDV.  49 CFR 571.3 defines “driver” as “the occupant of a motor vehicle seated immediately behind the steering control system.”  Because Google’s SDV design purposely does not have any mechanism by which human occupants could steer or otherwise “drive” the vehicle, it would be difficult in several instances to determine who the “driver” would be in its SDV, and thus to determine how to certify its motor vehicle design to certain FMVSS provisions that reference that “driver.”  To attempt to solve this challenge, Google has offered different interpretations of “driver” or “driver’s seating position” for NHTSA’s consideration, varying with the specific requirement or circumstances, and requests that we confirm its interpretations.

Specifically, Google suggests two potential interpretations of “driver” and one potential interpretation for “driver’s position” or “driver’s designated seating position” in the context of its described motor vehicle design:

• NHTSA could interpret the term “driver” as meaningless for purposes of Google’s SDV, since there is no human driver, and consider FMVSS provisions that refer to a driver as simply inapplicable to Google’s vehicle design;
• NHTSA could interpret “driver” and “operator” as referring to the SDS; or
• NHTSA could interpret “driver’s position” or “driver’s designated seating position” as referring to the left front outboard seating position, regardless of whether the occupant of that position is able to control the vehicle’s operation or movements.

Google then applies these suggested interpretive approaches to a number of FMVSS provisions in order to justify being able to certify its intended motor vehicle design as compliant with the FMVSSs, without having to change the design in ways that Google finds problematic. 

We will address each of Google’s suggested interpretations in turn.  The critical point of NHTSA’s responses for many of the requested interpretations is that defining the driver as the SDS (or the driver’s position as the left front position) does not end the inquiry or determine the result.  Once the SDS is deemed to be the driver for purposes of a particular standard or test, the next question is whether and how Google could certify that the SDS meets a standard developed and designed to apply to a vehicle with a human driver.  Related, 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.

While some of Google’s requested interpretations may be permissible given the facts presented here, we wish to make clear that many of the other requests present policy issues beyond the scope and limitations of interpretations and thus will need to be addressed using other regulatory tools or approaches.  NHTSA further notes that in a number of instances (in particular, several included in Table B), it may be possible for Google to show that certain standards are unnecessary for a particular vehicle design.  To date, however, Google has not made such a showing.  We note that these interpretations are confined to the specific facts and circumstances set forth in Google’s letter, and that they do not apply to other facts and circumstances.  We also emphasize that the interpretations NHTSA is issuing are subject to change or revocation if new or different facts or information comes to light.

DISCUSSION

NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (“Safety Act,” 49 U.S.C. Chapter 301) to issue FMVSSs that set performance requirements for new motor vehicles and new items of motor vehicle equipment.  Under the Safety Act, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make determinations as to whether a product conforms to the FMVSSs outside of a NHTSA compliance test.  Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSSs that are in effect on the date of manufacture.  Manufacturers are also responsible for ensuring that their products are free of safety-related defects.  NHTSA enforces compliance with the FMVSSs by testing vehicles and regulated equipment.  NHTSA also investigates safety-related defects and conducts related enforcement and recall actions. 

As a foundational starting point for the interpretations below, NHTSA will interpret “driver” in the context of Google’s described motor vehicle design as referring to the SDS, and not to any of the vehicle occupants.  We agree with Google its SDV will not have a “driver” in the traditional sense that vehicles have had drivers during the last more than one hundred years.  The trend toward computer-driven vehicles began with such features as antilock brakes, electronic stability control, and air bags, continuing today with automatic emergency braking, forward crash warning, and lane departure warnings, and continuing on toward vehicles with Google’s SDV and potentially beyond.  No human occupant of the SDV could meet the definition of “driver” in Section 571.3 given Google’s described motor vehicle design – even if it were possible for a human occupant to determine the location of Google’s steering control system, and sit “immediately behind” it, that human occupant would not be capable of actually driving the vehicle as described by Google.  If no human occupant of the vehicle can actually drive the vehicle, it is more reasonable to identify the “driver” as whatever (as opposed to whoever) is doing the driving.  In this instance, an item of motor vehicle equipment, the SDS, is actually driving the vehicle. 

NHTSA will consider initiating rulemaking to address whether the definition of “driver” in Section 571.3 should be updated in response to changing circumstances, as contemplated by Executive Order 12866, Regulatory Planning and Review.  Section 5, Reducing Regulations, of that Order provides that each federal regulatory agency will

[i]n order … to determine whether regulations promulgated by the executive branch of the Federal Government have become unjustified or unnecessary as a result of changed circumstances …  periodically review its existing significant regulations to determine whether any such regulations should be modified or eliminated so as to make the agency’s regulatory program more effective in achieving the regulatory objectives …

NHTSA recognizes that it can take substantial periods of time to develop some rulemaking proposals and final rules, including time spent obtaining review of those proposals and seeking and analyzing public comments.  NHTSA further understands that the time it takes to conduct rulemakings may, in some instances, make such proceedings ill-suited as first-line regulatory mechanisms to address rapidly-evolving vehicle technologies.  That said, there are limits to the result the agency may reach in an interpretation, even if it believes that result might be sound policy.  An interpretation describes an agency’s view of the meaning of an existing statute or regulation.  It can make sense of the overall legal framework and provide clarity for regulated entities and the public.  For example, an interpretation may clarify a statutory or regulatory term or provide crisper and more detailed lines than the regulation or statute being interpreted.  An interpretation may not, however, make a substantive change to the statutory or regulatory regime or to the clear language of a provision.  In particular, an interpretation may not adopt a new position that is irreconcilable with or repudiates existing statutory or regulatory provisions.   

In many instances, interpreting the term “driver” in a manner that Google has requested does not necessarily change the requirements of the regulation or otherwise fully resolve the issue Google seeks to address. Because the interpretations provided by this letter do not fully resolve all of the issues Google has raised, Google may wish to explore the interim step of seeking exemptions.  Exemptions are available under 49 U.S.C. 30114 and 49 CFR Part 555 for manufacturers able to demonstrate that features of their products provide equivalent levels of safety to those required by the FMVSS.  

1. “Priority Interpretive Issues”

Google requested NHTSA’s interpretation of several “priority interpretive issues” related to the absence of a human driver.  Google also provided two tables, Attachments A and B, listing FMVSS provisions for which Google requested that NHTSA interpret the “driver” or “operator” to be the SDS (provisions in Attachment A) and other provisions for which Google requested that NHTSA interpret “driver” to be the human occupant seated in the left front designated seating position (primarily provisions in Attachment B).  We address these interpretation requests in the order presented by Google’s November 12 letter.

FMVSS No. 135, “Light Vehicle Brake Systems”

Deeming the SDS to be the “driver” of a motor vehicle does not excuse that vehicle from compliance with the brake requirements of applicable standards.  FMVSS No. 135 contains requirements for service brakes and associated parking brake systems.  Among these requirements is S5.3.1, which states that service brakes “shall be activated by means of a foot control,” and also that “control of the parking brake shall be independent of the service brake control, and may be either a hand or foot control.”  Google’s described motor vehicle design does not include hand or foot controls for either the service brakes or the parking brake.  Google argues that because the SDS will control all aspects of braking, it would not be necessary or beneficial for safety for a human occupant to be able to brake the vehicle.  Google therefore requests that NHTSA interpret these provisions regarding the activation or control of braking systems to be inapplicable to its described motor vehicle design.  Similarly, Google requests that NHTSA interpret S6.5.1 of FMVSS No. 135 to allow the service brake system performance requirements to be met if the SDS activates the service brakes, rather than “solely by use of the service brake control” as the provision directs. 

We agree that Google’s SDS may be deemed to be the driver for purposes of compliance with these provisions.  Given that there will be no foot (or even hand) control to be activated – indeed, given that the SDS will have neither feet nor hands to activate brakes – we understand that Google’s described vehicle design would not comply with S5.3.1 as written.  We also understand Google’s assertions that the SDS will be able to activate the brakes electronically such that its vehicle will “stop [] safely and in accordance with all performance requirements of FMVSS No. 135.”  The fact that the SDS may be programmed to perform the tests enumerated in FMVSS No. 135 does not, however, overcome the plain language of S5.3.1.  NHTSA would need to commence a rulemaking to consider how FMVSS No. 135 might be amended in response to “changed circumstances” in order to ensure that automated vehicle designs like Google’s, i.e., ones that control all braking through an AI driver and do not provide brake controls to vehicle occupants, have a way to comply with the standard.  Such a rulemaking would also consider S6.5.1 and any other provisions that implicate the potential use of a foot-actuated service brake control.  In the interim, Google may wish to consider petitioning the agency for an exemption from these provisions.[3]

FMVSS No. 101, “Controls and Displays”

FMVSS No. 101 contains requirements for location, identification, color, and illumination of motor vehicle controls, telltales, and indicators.  S5.1.1 requires the controls listed in Tables 1 and 2 of the standard to be “located so that they are operable by the [belted] driver.”  S5.1.2 requires the telltales and indicators in those Tables and their identification to be “located so that, when activated, they are visible to a [belted] driver.”  Google states that its motor vehicle will not have any of the controls listed in Tables 1 and 2 because there will not be a human driver in its vehicle.  Further, Google believes that allowing the human occupants to affect the operation of, for example, lamps or turn signals otherwise controlled by the SDS could be detrimental to safety.  Google therefore asks that NHTSA interpret S5.1.1 to be inapplicable to its motor vehicle design, or that NHTSA interpret Google’s SDS to be the “driver” for the purposes of S5.1.1.  For S5.1.2, Google says it will equip its vehicle’s occupant compartment with the telltales and indicators required by other FMVSSs (like the telltales/indicators for malfunctions of the brake system, electronic stability control system, or tire pressure monitoring system).  For purposes of placement of those telltales and indicators, Google requests that NHTSA interpret the “driver position” to be the left front seating position.

Because we interpret “driver” as referring to the SDS, we agree with Google that the controls listed in Tables 1 and 2 may simply be operable by the SDS and need not be located so that they are available to any of the human occupants of the motor vehicle.  Similarly, telltales and indicators must also be “visible” to the SDS.  For purposes of both S5.1.1 and S5.1.2, we interpret the SDS to be the “driver.”  However, we have no defined way at this time of verifying Google’s compliance with this interpretation of these requirements.  Thus, if Google certified its compliance with these provisions consistent with this interpretation, NHTSA would be unable to conduct confirmatory testing to satisfy ourselves that the Google vehicle is compliant.  Therefore, unless and until NHTSA has a standard and testing procedures to confirm compliance with S5.1.1 and S5.1.2, or a standard providing equal or greater safety, it cannot conclude that Google’s SDV is compliant with those requirements.  In order to determine what “operable by” and “visible to” the SDS mean, and to establish procedures for testing compliance with those requirements using its existing regulatory tools, NHTSA would be required to conduct a rulemaking.

In the interim, Google may wish to petition the agency for an exemption from these provisions.[4]  Additionally, we agree with Google that it could be beneficial to vehicle occupants to be aware of certain aspects of vehicle status through telltales and indicators while they are traveling in the vehicle.  Given the historical status of the left front seating position as the location of the human in charge of vehicle operation, we agree that Google may voluntarily locate telltales and indicators so that they are visible to that position.  However, if it is foreseeable that a different seating position is more likely to be occupied, it may make more sense for the telltales and indicators to be located so that they are visible in another position.

FMVSS No. 108, “Lamps, Reflective Devices, and Associated Equipment”

FMVSS No. 108 contains requirements for original and replacement lamps, reflective devices, and associated equipment.  Google states that it “recognizes that all vehicles must comply with all of the performance requirements of FMVSS No. 108 with respect to external lamps and reflectors,” but asks that NHTSA interpret S6.6.1 of FMVSS No. 108 to allow certain internal controls “to be excluded from the occupant compartment, as long as their functions are performed by the vehicle autonomously.”  S6.6.1 requires all vehicles covered by FMVSS No. 108 to be “equipped with a turn signal operating unit, a turn signal flasher, a turn signal pilot indicator, a headlamp beam switching device, and an upper beam headlamp indicator meeting the requirements of S9.” 

With respect to turn signal operating units, Google requests that NHTSA interpret the term “operator” in the S4 definition of “turn signal operating unit” to mean the SDS.  That definition states that the unit is “an operating unit that is part of a turn signal system by which the operator of a vehicle causes the signal unit to function.”  Google notes that, in its vehicle, the turn signals will be operated and controlled by the SDS.  Google’s letter also addresses S9.1.1, which requires that the “turn signal operating unit…must be self-canceling by steering wheel rotation and capable of cancellation by a manually operated control.”  Google requests that NHTSA interpret this provision to be met by Google’s SDS since there would not be any steering wheel or conventional turn signal stalk.  Google also argues that providing either a steering wheel or the ability to control turn signal operation to the vehicle occupants could be detrimental to safety.  Google further asks that NHTSA “expressly acknowledg[e]” that a steering wheel is not required by the FMVSS.  The supplemental information Google provided on January 11, 2016 stated that the SDV’s turn signal operating unit self-cancels based on the position of the steering rack (which is controlled by the SDS), “which is what happens in a conventional vehicle by virtue of the link between the steering rack, steering column, and steering wheel,” and that Google therefore believes that the SDV complies with S9.1.1.

With respect to the S9.4 requirement for headlamp beam switching devices, which provides that “[e]ach vehicle must have a means of switching between lower and upper beams designed and located so that it may be operated conveniently by a simple movement of the driver’s hand or foot,” Google again states that the SDS will control headlamp beam switching “fully and appropriately” and that human occupant control over such functions could be detrimental to safety.

For purposes of these provisions of FMVSS No. 108, we interpret the SDS to be the “driver.”  We also agree that the “operator” of a turn signal operating unit is the SDS, because NHTSA has typically used “driver” and “operator” interchangeably in its interpretations over time.  We further agree that a steering wheel is not expressly required by any FMVSS.  We agree with Google that, as described, the SDV appears to be designed to self-cancel the turn signal operating unit as NHTSA would have intended, had vehicles without steering wheels been available when FMVSS No. 108 was developed.  Similar to the provisions of FMVSS No. 135, however, the fact that the SDS may be programmed to cancel the turn signal and switch headlamp beams does not overcome the (other) plain language of S9.1.1 and S9.4.  Even if we agree that Google’s self-cancelation for the turn signal operating unit is consistent with our intent in S9.1.1., that provision further expressly requires that the turn signal be capable of cancellation by a “manually operated control.” We understand Google’s argument that in the case of the SDV, manual cancelation of the turn signal operating unit by a human occupant could interfere with decisions already made by the SDS in ways that could affect safety.  However, this is an issue that cannot be addressed through interpretation alone.  Similarly, S9.4 specifically requires operation of headlamp switches by movement of the “driver’s hand or foot”.[5]  Under existing test procedures, we cannot verify Google’s compliance with these express requirements. 

Unless and until NHTSA has a standard and testing procedures to confirm compliance with these provisions, it cannot interpret Google’s SDV as compliant with these standards and requirements.  In order to determine what requirements would be appropriate, and to establish procedures for testing compliance with those standards, using its existing regulatory tools, NHTSA would be required to conduct a rulemaking.  NHTSA would need to consider how it could propose to amend FMVSS No. 108 in order to ensure that automated vehicle designs like Google’s, i.e., those that control all lighting and signals through the AI driver and do not provide lighting or signal controls to vehicle occupants, have a way to comply with the standard.  Meanwhile, Google may wish to petition the agency for an exemption from these provisions.  An exemption petition could seek to demonstrate that Google’s SDV would provide an equivalent level of safety to that provided by compliance with the FMVSS.[6] 

1. Interpretive Issues regarding “Miscellaneous Provisions in Other FMVSS”

Google also requested interpretation of several other “miscellaneous provisions in other FMVSS” relating to the absence of a human driver.

FMVSS No. 111, “Rear Visibility”

FMVSS No. 111 contains requirements for rear visibility devices and systems, requiring that vehicles have external and internal rear view mirrors to provide the driver with certain fields of view around and behind the vehicle.  FMVSS No. 111 also requires that vehicles display a rearview image (of a specified area of certain dimensions behind the vehicle) to the vehicle operator.  Google asks that NHTSA interpret these provisions as requiring that the specified view be provided to the SDS, rather than to the human occupant.  Google further requests that “the vehicle would be deemed compliant if the SDS receives sensor input at least equivalent to the images a driver would be able to view through mirrors and a rear visibility system meeting the field of view and other performance requirements of the standard.”

As above, because we are interpreting “driver” and “operator” in this instance to refer to the SDS, we agree that the information required by the provisions of FMVSS No. 111 that must be provided to the “driver” or “operator” may be provided to the SDS.  Here again, we have no defined way at this time of verifying Google’s compliance with this interpretation of those requirements.  Thus, if Google certified its compliance with these provisions consistent with this interpretation, NHTSA would be unable to conduct confirmatory testing to satisfy ourselves that such certification was valid. 

Therefore, unless and until NHTSA develops and adopts appropriate performance criteria and test procedures for evaluating whether the sensor input received by the SDS provides enough information to ensure that the SDS is as well informed by its sensors of the conditions behind and around it as a human driver of a conventional vehicle that meets the existing requirements of FMVSS No. 111 (or a standard providing equal or greater safety), it cannot interpret Google’s SDV as compliant with these standards and requirements.  This would need to be undertaken through rulemaking.  NHTSA may also consider as part of such a rulemaking whether there is benefit to conveying this information to human occupants in the case of vehicle designs like the Google SDV.  Google may wish to petition the agency for an exemption from these provisions, in which it could seek to demonstrate that its SDV would provide an equivalent level of safety to that provided by compliance with the FMVSS.[7] 

FMVSS No. 114, “Theft Protection and Rollaway Prevention”

FMVSS No. 114 contains requirements intended to reduce the incidence of crashes resulting from theft and accidental rollaway of vehicles.  Among these requirements is S5.3, which requires vehicles with an automatic transmission that includes a “park” position to have a system that “requires the service brake to be depressed before the transmission can be shifted out of ‘park.’”  Google states that its vehicle will not have any brake pedal, and that its SDS “will determine the appropriate transmission position and will not select a position other than park unless the service brake is first applied by the SDS.”  Google therefore requests that NHTSA interpret S5.3 as met by this described approach.

We agree that the language of S5.3 requiring the service brake to be depressed does not necessarily require the service brake itself to be pressed or applied by any particular object or function, such as a human foot.  We also agree that if the SDS is controlling the service brake, in theory, it would be able to make the decisions that would accomplish the intent of this provision.  In order for NHTSA to assess compliance of Google’s vehicle with this standard, however, we would need more information regarding how the SDS applies the service brake.  We would also intend to develop and adopt through rulemaking performance standards and test procedures for evaluating how (for example) the SDS “determines the appropriate transmission position” and avoids “selecting a position other than park unless the service brake is first applied.”  NHTSA might also consider as part of such a rulemaking the safety intent of the standard, and how human occupants should be protected when the vehicle is making decisions about when to initiate movement.  Google may wish to petition the agency for an exemption from these provisions.[8] 

FMVSS No. 126, “Electronic Stability Control Systems”

FMVSS No. 126 contains performance and equipment requirements for electronic stability control (ESC) systems.  Google argues that because its vehicle will not have a steering wheel, and the SDS will control all aspects of steering, NHTSA should interpret the relevant provisions of FMVSS No. 126 “to allow compliance with the performance requirements of the standard to be tested on the basis of appropriate steering inputs provided by the SDS.”  Google cites in particular the definition of an ESC system in S4 as referring to “a means to monitor driver steering inputs” and the test conditions in S6 and test procedures in S7, which refer to steering wheel velocity and angle.

Test procedure provisions in S7 (such as S7.5.2, S7.5.3, S7.6, S7.6.1, S7.9.3, and others) refer specifically to measurement of “steering wheel angle,” which is, literally, a measurement of the angle of the steering wheel in degrees.  Without a steering wheel, we agree that Google cannot certify its vehicle design to such provisions.  As above, in order for NHTSA to assess compliance of Google’s vehicle with this standard, we would need to determine how to evaluate the SDS’ control of the steering inputs, and whether and how to modify test conditions and procedures to address more clearly the situation of a vehicle with steering controlled entirely by an AI driver, with no mechanism for the vehicle occupants to affect the steering.  Google could petition for exemption from the relevant provisions of FMVSS No. 126

and the agency could work to develop alternate test procedures.  Over the longer term, NHTSA would need to undertake rulemaking to incorporate test procedures into FMVSS No. 126 to provide a clearer path to compliance for similar future vehicle designs.

Google’s letter concludes with two attachments, summarily listing numerous additional provisions for which it seeks interpretation.  Attachment A lists “Requirements for which the ‘Driver’ or ‘Operator’ should be considered to be the Self-Driving System.”  The letter provides no further explanation or justification for those requested interpretations.  Attachment B provides a similar list of FMVSS “Requirements for which the ‘Driver’ should be considered to be a person seated in the left front designated seating position.”  We address these numerous items in Attachments A and B in Tables A and B, to this letter, respectively (attached).  The Tables in those attachments reproduce each of Google’s requests in the first three columns, and provide NHTSA’s response in the final column.

In closing, we note that, in some instances, it may be possible for Google to provide more information and explanations that would allow NHTSA to expand or otherwise revise interpretations set forth in this letter.  If Google believes it can address concerns and limitations expressed in this letter that prevent us from providing the full interpretation it seeks, we encourage the company to submit more information to do so. In addition, as discussed above, Google may wish to seek exemptions from standards and requirements addressed in this letter. I hope this information provided in this letter and its attachments is helpful.  If you have further questions, please feel free to contact me at (202) 366-2830, or Steve Wood, Assistant Chief Counsel for Vehicle Safety Standards and Harmonization, at (202) 366-2992.

                                                                        Sincerely yours,

                                                                        Paul A. Hemmersbaugh

                                                                        Chief Counsel

III.  Table A

NHTSA interprets the SDS to be the “driver” or “operator” for the following specific FMVSS provisions.  As discussed above, we have no defined way at this time of verifying Google’s compliance with this interpretation of these requirements.  Thus, if Google certified its compliance with these provisions consistent with this interpretation, NHTSA would be unable to conduct confirmatory testing to satisfy ourselves that such compliance was valid.  Therefore, unless and until NHTSA develops performance criteria and test procedures for evaluating whether the SDS satisfies the FMVSS provision in question to be met, or a standard providing equal or greater safety, it cannot interpret Google’s SDV as compliant with these standards and requirements.  Google may wish to petition the agency for exemption from these petitions in the interim.

1. Table B

For specific FMVSS provisions set forth on Google’s Attachment B, Google requested that NHTSA interpret the human occupant seated in the left front designated seating position (‘DSP’) as the “driver.”  As discussed above, NHTSA defines “driver” for purposes of the FMVSS at 49 CFR 571.3.  We also discuss above the need to amend that definition in light of the possibility that Google raises, that an AI driver could be the sole means of driving a vehicle.  Given the focus of the definition of “driver” as, essentially, the entity that controls steering, and given that Google’s proposed vehicle design gives the human occupant no means to steer the vehicle, the human occupant of the left front DSP could not be the driver.  Moreover, interpreting “driver” as the human occupant of the left front DSP in the instances below that Google cites would not, in most cases, provide Google with a means of certifying that its proposed vehicle design complies with the applicable standard, because the agency would need to establish standards and tests to verify that the design complies. 

It may be that for some of these provisions, the elimination of a human driver makes the provision unnecessary, as Google implies in its letter.  NHTSA will consider these issues further and looks forward to receiving additional information from Google to assist us in this consideration.  For the following provisions, we are therefore continuing to interpret “driver” as referring to the SDS, and discuss what steps would need to be taken next in order to provide a path forward:

[1] Google also submitted a supplemental letter date January 11, 2016, providing more detailed information on its approach to canceling the turn signal, which is discussed below.

[2] NHTSA considers this AI driver to be an item of motor vehicle equipment within the meaning of 49 U.S.C. 30102 and other applicable law and regulations.

[3] Google may also wish to reconsider its view that a pedal may never be needed in any circumstance, and that there is not a risk of harm associated with a pedal’s absence.

[4] Google may also wish to reconsider its view that the controls listed in Tables 1 and 2 of S5.1.1 may never be needed in any circumstance, and that there is not a risk of harm associated with their absence.

[5] We note that S9.4.1 of FMVSS No. 108 provides a mechanism by which a manufacturer can certify a “semi-automatic headlamp beam switching device,” but Google did not ask for interpretation of this provision, nor do we have enough information to assess whether Google’s proposed design would comply with this provision.

[6] Google may also wish to reconsider its view that a steering wheel and the vehicle occupants’ ability to control any lighting and signals may never be needed in any circumstance, and that there is not a risk of harm associated with their absence.

[7] Google may also wish to reconsider its view that rear visibility devices and systems may never be needed in any circumstance, and that there is not a risk of harm associated with their absence.

[8] Google may also wish to reconsider its view that a pedal may never be needed in any circumstance, and that there is not a risk of harm associated with a pedal’s absence.

[9] We note that NHTSA has previously interpreted this provision as prohibiting automatic (i.e., non-driver initiated) control of turn signal lamp flashing, but we do not consider this interpretation as inconsistent with those, because in this instance we are interpreting the “driver” (the SDS, given that the human occupants have no mechanism by which they can drive the vehicle) as being the entity controlling the vehicular hazard warning signal operating unit.  NHTSA would like to explore further with Google the instances in which Google would intend for the SDS to flash the hazard warning signals.

ID: gower

Edward Gower, Esq.
Chief Counsel
Illinois Department of Transportation
DOT Administration Building, Room 300
Springfield, IL 62764

Dear Mr. Gower:

In response to a request by Larry Wort, Chief of the Bureau of Safety Programs, I have reviewed the provisions of Senate Bill No. 52, now awaiting action in the Illinois General Assembly, to determine whether the provisions relating to school buses would conflict with applicable Federal law. My review leads me to conclude that there is a conflict that could result in Federal preemption in some circumstances. I am specifically concerned about the bill's redefinition of "school bus."

By way of background information, Chapter 301 of Title 49 of the U.S. Code (Safety Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards applicable to new motor vehicles and equipment prior to sale to the first retail purchaser. Following the first retail purchase, the use of vehicles becomes a matter of state concern. The Safety Act further provides that a Federal standard preempts any state or local standard applicable to the same aspect of performance that is not identical to the Federal standard. 49 U.S.C. 30103(b)

NHTSA defines a "bus" as a passenger motor vehicle designed to carry more than 10 persons, and further defines a "school bus" as a bus that is sold for purposes that include carrying students to and from school or related events, except a bus sold for operation as a common carrier in urban transportation. 49 CFR 571.3.

Senate Bill No. 52 proposes to amend the definition of "school bus" in section 1-182 of 625 ILCS by excluding

3. A motor vehicle designed for the transportation of not less than 7 nor more than 16 persons that is operated by or for a public or private primary or secondary school, including any primary or secondary school operated by a religious institution, for the purpose of transporting not more than 15 students to and from interscholastic athletic or other interscholastic or school sponsored activities.

There is thus an inconsistency between the definition in 49 CFR 571.3 and the definition in Senate Bill No. 52, since a vehicle with a capacity of 11-16 persons that is sold for school transportation would be a school bus for Federal purposes but not for State purposes.

This inconsistency matters at the point of sale of a school bus. The Federal safety standards impose a number of requirements on school buses that do not apply to other buses. See, e.g., 49 CFR 571.222, School bus passenger seating and crash protection. If a dealer were to sell a 11-16 person bus to a school for use in transporting students, the Federal school bus requirements would apply, notwithstanding the State law's exclusion of such a bus from the school bus definition.

I want to stress that the Federal law applies to dealers as well as to manufacturers. The obligations of a dealer are set forth at 49 U.S.C.30112(a), which provides that no one may manufacture or sell a new motor vehicle to which a vehicle safety standard applies unless the vehicle complies with the standard. A dealer who sells a bus for school use that does not meet the school bus standards would thus violate the law.

The amendment in Senate Bill No. 52 which would add 105 ILCS 5/29-6.3 is not inconsistent with the Safety Act. It has been our position that vehicles that do not comply with applicable Federal school bus safety standards may be borrowed or rented on a one-time or very occasional basis to transport students. Operators should be cautioned, however, that transporting students in other than complying school buses could result in additional liability in the event of an accident.

I hope the above information is helpful to you. If you have any further questions or need additional information, you may contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure

cc: Larry Wort Donald J. McNamara Ref:571 d:4/10/95

ID: GPScrashsensor

Mr. Ralph Longton
Application Engineer
LoJack Corp.
15 Commercial Circle
Dedham, MA 02026





Dear Mr. Longton:

This responds to your letter of June 1, 2001. In that letter, you inquire about a system that LoJack is currently developing. This system will be located in the passenger compartment of a vehicle. In the event the vehicle is in a crash, the system will rate the crash as minor or major, alert a G.P.S. locator, and contact a clearinghouse. The clearinghouse will attempt to contact the driver or send assistance. You would like to know whether there are any regulatory obligations you may need to meet in the deployment and operation of such a device.

The National Highway Traffic Safety Administration (NHTSA) cannot speak to all of your regulatory obligations, but only to Federal requirements in the area of automotive safety. We do not have any Federal motor vehicle safety standards (FMVSS) for this type of device. However, the FMVSS could be relevant to your device if the device affects a vehicle's compliance with any of the standards. We do not have sufficient information about your system to comment on whether it would likely affect a vehicle's compliance with the FMVSS.

I have enclosed a copy of a paper titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment" which identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers.

I hope this answers your question. Should you have any more questions, please contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
Ref:571
d.7/20/01

ID: GPScrashsensor.rtf

Mr. Ralph Longton
Application Engineer
LoJack Corp.
15 Commercial Circle
Dedham, MA 02026





Dear Mr. Longton:

This responds to your letter of June 1, 2001. In that letter, you inquire about a system that LoJack is currently developing. This system will be located in the passenger compartment of a vehicle. In the event the vehicle is in a crash, the system will rate the crash as minor or major, alert a G.P.S. locator, and contact a clearinghouse. The clearinghouse will attempt to contact the driver or send assistance. You would like to know whether there are any regulatory obligations you may need to meet in the deployment and operation of such a device.

The National Highway Traffic Safety Administration (NHTSA) cannot speak to all of your regulatory obligations, but only to Federal requirements in the area of automotive safety. We do not have any Federal motor vehicle safety standards (FMVSS) for this type of device. However, the FMVSS could be relevant to your device if the device affects a vehicle's compliance with any of the standards. We do not have sufficient information about your system to comment on whether it would likely affect a vehicle's compliance with the FMVSS.

I have enclosed a copy of a paper titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment" which identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers.

I hope this answers your question. Should you have any more questions, please contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure

NCC-20:Eglancy:mar:6/26/01:62992:OCC23204
Cc: NCC-01 Subj./Chron
Redbook (2), interp. Part 571
U:\ncc20\interp\gpscrashsensor.doc

ID: GRACIA.2

Wayne F. Plaza, Esq.
Rooks, Pitts and Poust
10 South Wacker Drive
Suite 2300
Chicago, IL 60606

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Plaza:

This is in response to your letter dated September 6, 1996, which objected to my letter of August 27, 1996 to Arthur Bryant of Trial Lawyers for Public Justice. My letter included my interpretation, as Acting Chief Counsel of the National Highway Traffic Safety Administration (NHTSA), of certain provisions of 49 U.S.C. Chapter 301 as they relate to the above-referenced litigation.

One of my functions as Acting Chief Counsel is to issue interpretations of the statutes administered by NHTSA and the regulations adopted by the agency pursuant to those statutes. See 49 CFR 501.8(d); 61 Fed. Reg. 26468 (May 28, 1996). Thus, your assertion that my response to Mr. Bryant's request for an interpretation of the preemptive effect of Federal Motor Vehicle Safety Standard No. 212 under a particular set of facts was "beyond the scope of [my] office" is incorrect. Similarly, while the adoption of Federal motor vehicle safety standards pursuant to 49 U.S.C. 30111 can be analogized to a "legislative" process accompanied by public participation (as required by the Administrative Procedure Act (APA), 5 U.S.C. Part 553), the issuance of interpretations by an agency is not governed by the APA. Rarely if ever does NHTSA or another Federal agency seek public comment on a request for an interpretation like the one that led to my August 27 letter to Mr. Bryant.

The fact that Mr. Bryant's request was related to pending litigation does not affect NHTSA's handling of the request, and certainly imposes no duty upon the agency to seek the views of all parties in that litigation. Many interpretation requests seek the views of the agency on matters being litigated. While it is the policy of the agency not to express any view on the ultimate questions raised in such litigation, we do not refrain from interpreting our statutes and regulations merely because the interpretation could affect a pending lawsuit.

In this case, we promptly sent you, as well as counsel for the plaintiff, a copy of the interpretation, even though that is not required. (I am puzzled by your statement that your copy of the letter was postmarked August 30, 1996; to the best of my knowledge, it was placed in the outgoing mail tray in this office on August 27, the day it was signed.)

Consistent with the policy described above, my letter explicitly declined to take a position on the ultimate questions at issue in this litigation, and noted that the interpretation was necessarily based on the facts presented by Mr. Bryant. Please note, however, that Mr. Bryant enclosed with his request copies of the Motion for Summary Judgment filed by your client, Volvo Europa Truck, N.V.; the plaintiff's memorandum in response to your motion; the Report and Recommendation issued by Magistrate Judge Pallmeyer; Volvo's objections to Magistrate Pallmeyer's Report; and the Memorandum Opinion and Order issued by Judge Plunkett of the Northern District of Illinois. Thus, I believed at the time, and still believe, that I had sufficient awareness of the relevant facts to issue the interpretation.

Of course, to the extent that the interpretation is based upon an incorrect understanding of the relevant facts, such a misunderstanding would decrease the relevance of the interpretation to the pending litigation. However, it would not undermine the validity of the interpretation under the facts as I understood them. If you believe the relevant facts are not accurately or completely set forth in the documents provided by Mr. Bryant, I will be happy to consider whether any such new facts would change my interpretation.

In conclusion, while it is perfectly legitimate for you to disagree with the interpretation set forth in my August 27 letter, that letter was an appropriate exercise of my authority as Acting Chief Counsel. I therefore decline to adopt your request that I "formally withdraw" that letter.

Sincerely,

John Womack

Acting Chief Counsel

cc: Arthur H. Bryant, Esq.

Bruce R. Pfaff, Esq.

ref:VSA

d:10/10/96

ID: GRACIA.LTR

Arthur H. Bryant, Esq.
Executive Director
Trial Lawyers for Public Justice
Suite 800
1717 Massachusetts Avenue, NW
Washington, D.C. 20036

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Bryant:

This is in response to your letter requesting that the United States file an amicus curiae brief with the Seventh Circuit in the above-referenced case, in which the District Court ruled that the plaintiff's claims are preempted by Federal law.

Although the National Highway Traffic Safety Administration (NHTSA) disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief. A brief discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, NHTSA has consistently taken the view that, as a general matter, Federal motor vehicle safety standards (FMVSS) issued under 49 U.S.C. Chapter 301 preempt state common law actions only in very limited situations, which do not appear to apply here. Our views on this issue were most recently stated in the amicus curiae brief filed by the United States in Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995).

To summarize, judgments under the common law can effectively create "standards" that would be expressly preempted by the "preemption clause" of Chapter 301, 49 U.S.C. 30103(b)(1),⁽¹⁾ if that clause stood alone. However, the "savings clause," 49 U.S.C. 30103(e),⁽²⁾ precludes a finding that suits seeking to recover damages on the basis of a manufacturer's failure to go beyond the requirements of a standard are expressly preempted. Moreover, such suits are impliedly preempted only in those relatively rare cases where the common law duty sought to be imposed on an auto manufacturer would create an actual conflict with a NHTSA safety standard, either because it would be impossible to comply with both state and Federal requirements or because the judgment would "stand as an obstacle to" or "frustrate the purpose of" federal law.

As we understand the facts in the Gracia case, the plaintiff was injured when she was "thrown through the windshield" of a model year 1986 Volvo truck that had a gross vehicle weight rating (GVWR) of more than 10,000 pounds and which was a "forward control vehicle." One of NHTSA's safety standards, FMVSS No. 212, "Windshield mounting," 49 CFR 571.212, imposes performance requirements for windshields of certain vehicles. The standard applies to passenger cars and to trucks with a GVWR of 10,000 pounds or less. It does not apply to certain types of trucks, including "forward control vehicles," even if they have a GVWR of less than 10,000 pounds.

The District Court concluded that NHTSA's decision to exclude forward control vehicles from the reach of the standard preempted plaintiff's product liability action. In our view, this conclusion is both factually and legally incorrect.

First, the focus by the parties and the court on the agency's rationale for excluding "forward control" trucks with a GVWR of less than 10,000 pounds from the reach of FMVSS No. 212 is misguided, since the GVWR of the vehicle involved in this crash was greater than 10,000 pounds. As with almost all of its safety standards, NHTSA did not explicitly consider applying FMVSS No. 212 to heavy trucks, regardless of whether they were forward control vehicles.

More generally, although we agree that a NHTSA decision not to regulate can preempt state common law actions, see Arkansas Elec. Co-op Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 384 (1983), it will do so only where the intent to preempt is "clear and manifest." See Toy Mfrs. Of America, Inc. v. Blumenthal, 986 F.2d 615, 622-623 (2d Cir. 1992), citing Hillsborough County v. Automated Medical Lab., Inc.,

471 U.S. 707, 718 (1985). Here, there was no such intent, and none was indicated in any of the documents issued by the agency during its consideration of this standard.⁽³⁾

The regulatory materials quoted in the District Court's opinion indicate that the primary basis for NHTSA's exclusion of forward control vehicles (with a GVWR of less than 10,000 pounds) was a concern that it would not be "practicable" for such vehicles to comply with the existing standard.⁽⁴⁾ In no way did this reflect a NHTSA conclusion that efforts by maufacturers of forward control vehicles to reduce the possibility of ejections through the windshield (either by satisfying the performance requirements of the standard or through other means) would have an adverse impact on safety. Rather, it reflected a NHTSA determination that applying FMVSS No. 212 to such vehicles would not be appropriate in light of the statutory criteria for FMVSSs set out in Chapter 301.

A decision not to regulate on this basis does not in itself "preempt the field." In other words, while the exclusion of certain vehicles from the reach of FMVSS No. 212 relieves the manufacturers of those vehicles from any duties with respect to windshield retention under Chapter 301, it does not immunize those manufacturers from a duty of care that might be imposed under state law.⁽⁵⁾

Thus, as noted above, we believe that the District Court's opinion is incorrect. However, to our knowledge, this is the first case in which a court has improperly concluded that a NHTSA decision not to regulate an aspect of performance of certain vehicles preempts a state common law action seeking damages based on an alleged failure with respect to that aspect of performance. Therefore, in keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case. In the unlikely event that this erroneous view of the scope of "negative" Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.

Thank you for bringing this matter to our attention.

Sincerely,

John Womack

Acting Chief Counsel

cc: Wayne F. Plaza, Esq.

Bruce R. Pfaff, Esq.

ref: 103(d)#108(k)

NCC-10:KWeinstein:August 9, 1996; revised:August 16, 1996

Printed: August 26, 1996 (cyb)

1. "When a motor vehicle safety standard is in effect under this chapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle . . . only if the standard is identical to the standard prescribed under this chapter. . . ."

2. "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."

3. Although we cannot anticipate all possibilities, it is likely that NHTSA would "negatively" preempt state law only if it concluded that a specific item or design feature would have an adverse effect on motor vehicle safety. For example, if NHTSA had decided that headrests above a certain size should not be required because they would interfere with driver visibility, a claim by a plaintiff that a manufacurer's failure to equip a vehicle with a larger headrest led to neck injuries would be preempted, even in the absence of an explicit ban on such headrests.

4. Pursuant to 49 U.S.C. 30111(a), each FMVSS "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms."

5. NHTSA takes no position on whether the windshield retention system in this particular vehicle was "unreasonably dangerous" or what duty of care a state might reasonably impose through its common law. (Presumably, NHTSA's views on the technological options avilable to manufacturers of forward control vehicles would be considered by courts and juries considering those issues.) Similarly, NHTSA takes no position on whether this crash led to a "foreseeable impact," as alleged by plaintiff, or on the relevance, if any, of the facts that the plaintiff apparently was not seated in a designated seating position and apparently was not wearing a safety belt.