E6-524. Nissan North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance

Nissan North America, Inc. (Nissan) has determined that certain vehicles that it produced in 2005 do not comply with S4.2.2 of 49 CFR 571.114, Federal Motor Vehicle Safety Standard (FMVSS) No. 114, “Theft protection.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), Nissan has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Reports.” Notice of receipt of a petition was published, with a 30-day comment period, on November 18, 2005, in the Federal Register (70 FR 70026). NHTSA received no comments.

Affected are a total of approximately 3400 Nissan Maximas produced between March 29, 2005 and May 26, 2005. S4.2.2 of FMVSS No. 114 requires that,

(a) Notwithstanding S4.2.1, provided that steering is prevented upon the key's removal, each vehicle specified therein may permit key removal when electrical failure of this system (including battery discharge) occurs or may have a device which, when activated, permits key removal. The means for activating any such device shall be covered by a non-transparent surface which, when installed, prevents sight of and activation of the device. The covering surface shall be removable only by use of a screwdriver or other tool.

(b) Notwithstanding S4.2.1, each vehicle specified therein may have a device which, when activated, permits moving the transmission shift lever from “park” after the removal of the key. The device shall either be operable:

(1) By the key, as defined in S3; or

(2) By another means, provided that steering is prevented when the key is removed from the ignition, and provided that the means for activating the device is covered by a non-transparent surface which, when installed, prevents sight of and activation of the device. The covering surface shall be removable only by use of a screwdriver or other tool.

The subject vehicles are equipped with an override device but the steering wheel may not lock under some circumstances when the key is removed.

Nissan believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Nissan states that the vehicles are equipped with an engine control module immobilizer system which prevents forward movement of the vehicle if the key is not present.

Nissan points out that NHTSA recently granted inconsequential noncompliance petitions for similar noncompliances by Bentley, Volkswagen, and Porsche. Nissan also points out that NHTSA recently published a Notice of Proposed Rulemaking (70 FR 48362, 8/17/05), and that under this proposal, the system in the subject Maximas would be allowed.

Nissan further states,

The requirement that the steering be locked when the ignition key is removed through use of an “override device” was added to S4.2.2 “to ensure that Standard No. 114's theft protection aspects are not jeopardized.” See 57 FR 2039, 2040 (January 17, 1992). In the Maxima vehicles at issue here, when the key is removed through use of the “override device,” which will occur rarely if at all, the immobilizer will prevent the vehicle from being jump-started without the electronically coded ignition key, because the key-code is recorded in the engine control module and cannot be electrically bypassed.

NHTSA agrees with Nissan that the noncompliance is inconsequential to safety. The agency issued an interpretation letter to an unnamed person on September 24, 2004, which stated in pertinent part as follows:

The engine control module immobilizer described in your letter satisfies the requirements of S4.2(b) because it locks out the engine control module if an attempt is made to start the vehicle without the correct key or to bypass the electronic ignition system. When the engine control module is locked, the vehicle is not capable of forward self-mobility because it is incapable of moving forward under its own power.

Theft protection of vehicles is addressed under S4.2 of the standard. Section 4.2(b) can be met by preventing “either steering or forward self-mobility of the vehicle or both.” Therefore, an equivalent level of theft protection is provided by preventing either steering or forward self-mobility.

NHTSA amended FMVSS No. 114 in 1990 to require that vehicles with an automatic transmission and a “park” position be shifted to “park” or become locked in park before the key can be removed to reduce incidents of vehicle rollaway. S4.2.2(a) was added in 1991 to permit key removal when an electrical failure occurred and the transmission could not be manually shifted into park, provided that steering was prevented for theft protection. The forward self-mobility feature does not prevent vehicle rollaway by itself. However, the parking brake used in combination with the forward self-mobility feature will prevent rollaway.

In addition, as Nissan states in its petition, NHTSA recently granted inconsequential noncompliance petitions for similar noncompliances by Bentley (69 FR 67211, 11/16/04), Volkswagen (69 FR 67211, 11/16/04), and Porsche (70 FR 32398, 6/2/05).

In consideration of the foregoing, NHTSA has decided that the petitioner has met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, Nissan's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the noncompliance.

Authority: 49 U.S.C. 30118, 30120; delegations of authority at CFR 1.50 and 501.8.

Issued on: January 12, 2006.

Daniel C. Smith,

Associate Administrator for Enforcement.