02-19841. Denial of Petition for Rulemaking; Code of Federal Regulations

AGENCY:

National Highway Traffic Safety Administration (NHTSA) Department of Transportation.

ACTION:

Denial of petition for rulemaking.

SUMMARY:

This document denies the petition submitted by Nicholas Bromer to amend the Code of Federal Regulations to require vehicles to be equipped with vehicle identification number-encoded brake and/or rear running lamps to assist law enforcement in more accurately identifying motor vehicles and in combating vehicle theft.

FOR FURTHER INFORMATION CONTACT:

Ms. Rosalind Proctor, Office of Safety Performance Standards, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. Ms. Proctor's telephone number is [phone]. Her facsimile number is [phone].

SUPPLEMENTARY INFORMATION:

The Petition

By letter dated December 3, 2001, Nicholas Bromer petitioned the agency to amend the Code of Federal Regulations (CFR) to require that brake and/or running lamps for vehicles be equipped with flickering, red, light-emitting diodes (LEDs) encoded with the vehicle identification number (VIN) or a derivative of the VIN to assist law enforcement in the accurate identification of vehicles from any distance. Mr. Bromer did not identify the regulation within the CFR he was petitioning the agency to amend.

Mr. Bromer's idea is that, once a vehicle is reported stolen, its VIN would be put into a database. Automatic scanners placed on the roadside or on overpasses would check each passing vehicle against a list of stolen or wanted vehicles. Simultaneously, law enforcement authorities would be alerted. The LEDs would radiate the VIN in a binary digital format, rapidly turning on and off and capable of flickering out a complete VIN in a thousandth of a second. The petitioner asserted that the flickering would be invisible to the human eye and would slightly decrease the brightness of the brake or running lights. A light-sensing detector, aimed at the flickering lamp can read the VIN. The system will sort out the flickering light patterns from background noise, decode the flickering and access a databank. According to the petitioner, intermittent flickering, flickers from two different vehicles, both in a group of vehicles in optical range of a detector are unlikely to overlap, thus allowing the identification of both vehicles. Because flickering a complete VIN only takes a thousandth of a second, the flicker repetition interval can be much longer than that, while still insuring that there are plenty of flickers from each vehicle for the detector to register. Therefore, a detector can easily read the VINs of a large group of vehicles flickering simultaneously. The petitioner also asserted that because the brakes or running lamps would only flicker for a small proportion of time, its brightness would only be slightly decreased, by about 1 percent.

The Bromer system allows augmented VINs with at least one secret character or numeral. The VIN plate, vehicle title, and other public records would omit the secret portion of the VIN, which would be kept in a central databank. When a complete VIN is sent to the database, the incoming identifier would be checked against a secret database. The database response would read either “authentic” or “fake”.

The petitioner suggests that the system could be used to record all vehicles that have entered a building or area, or that law enforcement could use it to determine the history of any vehicle prior to making contact with the driver. The petitioner even states that owner information such as the owner's criminal record could also be made available.

Background

Since Mr. Bromer's request for amending the CFR did not identify a particular regulation, the agency believes that there are three regulations that may be relevant to his petition. Those applicable regulations are: 49 CFR Part 541, Federal Motor Vehicle Theft Prevention Standard; Federal Motor Vehicle Safety Standard (FMVSS) No. 114, Theft Protection; and FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. In addition, there is the possibility that the agency could issue a new FMVSS.

Agency Analysis

In 1984, Congress enacted the Motor Vehicle Theft Law Enforcement Act (the 1984 Theft Act) in response to escalating motor vehicle thefts (Pub. L. 98-547). The 1984 Theft Act was designed to reduce the incidence of motor vehicle thefts and simplify the tracing and recovery of parts from stolen vehicles. The 1984 Theft Act directed NHTSA to issue a theft prevention standard requiring vehicle manufacturers to mark major parts of high-theft passenger car lines with identifying numbers or symbols. The 1984 Theft Act is codified at 49 U.S.C. 33101. Under 49 U.S.C. Chapter 331, Theft Prevention, NHTSA has the authority to develop standards to reduce the incidence of motor vehicle theft. NHTSA issued the Federal Motor Vehicle Theft Prevention Standard, 49 CFR part 541 (50 FR 43166, October 24, 1985). The standard applies only to those motor vehicle lines that the agency has designated as high-theft. Manufacturers of these high-theft passenger motor vehicle lines must mark the certain “major parts” in those lines with the vehicle identification number (VIN). Subsequently, Congress enacted the Anti Car Theft Act of 1992 (the 1992 Theft Act). The 1992 Theft Act (59 FR 64164, December 13, 1994) extended the parts marking requirements to multipurpose passenger vehicles (MPVs) (i.e., passenger vans and sports utility vehicles) and light trucks (pickup trucks) with a gross vehicle weight rating (GVWR) of 6,000 pounds or less that NHTSA designated as high-theft. The 1992 Theft Act also extended the parts marking requirements to selected motor vehicle lines that were below the 1990/1991 median theft rate. However, neither Act provides NHTSA with the authority to mandate that a manufacturer be required to use a particular parts marking system such as that suggested by Mr. Bromer, on its motor vehicle lines.

Under 49 U.S.C. Chapter 301, Motor Vehicle Safety, NHTSA has the authority to develop standards to reduce the incidence of crashes, and deaths and injuries resulting from crashes. FMVSS No.114, Theft Protection, specifies requirements to reduce the incidence of crashes that result from unauthorized use of a motor vehicle. The standard accomplishes this by requiring that vehicles be equipped with a system to warn the driver/operator when his/her keys are left in the ignition and the door is opened. This warning serves as a reminder to the owner operator to remove his or her keys, consequently protecting the vehicle from unauthorized use. In contrast, the goal of the petitioner's system is to identify stolen vehicles for purposes of recovery.

FMVSS No. 108, Lamps, Reflective Devices and Associated Equipment, specifies requirements to reduce the incidence of crashes through the use of exterior vehicle lighting devices. The standard accomplishes this by setting performance and installation requirements for such devices and motor vehicles so that the vehicles are conspicuous, that the roadway is illuminated, and that important information about drivers' intentions are signaled to other drivers.

For the Bromer system to be effective, the stop and/or taillamps would need to be on all the time. Under current Federal lighting requirements, taillamps need to be on only when headlamps are on. Per state laws this is mostly during the nighttime. Thus, the only time the VIN information would be transmitted through taillamps would be at night. The total percentage of vehicle travel at night is low. As the petitioner stated, there would likely be no visual perception of the data being transmitted, but there is the possibility of slight intensity reduction. To this extent, the taillamp would still be required to comply with the specified intensity requirements for taillamps.

Stop lamps using the Bromer system could transmit only the VIN information when these lamps were actuated during braking, further reducing the total time that any VIN signal would be transmitted. Thus, in order for the system to be effective, the taillamps and/or stop lamps would need to be on all the time. The stop lamps could not be permitted to do this for obvious safety reasons. Additionally, operation of the stop lamps without braking is not permitted by FMVSS No. 108.

There is the possibility of developing a new FMVSS. As it is, the Bromer system could help in recovering a vehicle during the period between when it is reported stolen and logged into the system, and when the system is disabled. Possibly, if the Bromer system is not disabled, it could identify the vehicle as stolen if it were to be resold. The likelihood of vehicle recovery could be very high if the Bromer system were not disabled immediately or shortly after being initially stolen. Conversely, the effectiveness of the Bromer system could be low if a thief immediately disabled the device at the time of theft or within a few minutes of when the vehicle could be stopped. At that point, the vehicle would become like any other vehicle, having no emitted signal and invisible to a police cruiser's receiver.

Relative to the system operating through Federally required signal lighting, the Bromer system would require all motor vehicles to use LED technology for stop and/or taillamps. Most vehicles would have to be equipped with LEDs at some expense ($10 to $30 per vehicle at a minimum). There would also be an additional cost for the installation of the vehicle transmitter circuitry. Because few vehicles use LEDs, mandating their use would certainly increase the cost of most vehicles.

An additional consideration is that such a system, if Federally mandated for installation on motor vehicles, would have to be accompanied by a receiver installed in every police vehicle throughout the United States if the system's goals were to be fully realized. If NHTSA were to mandate this, it would be many years until the entire fleet of citizen vehicles and police vehicles were equipped and compatible. Also, a system for national distribution of computer programs to law enforcement jurisdictions and the national and immediate distribution of stolen vehicle VINs would have to be implemented. This could impose substantial costs to states. In sum, we believe that the cost to manufacturers, vehicle owners and states outweigh any possible benefits that the Bromer system might have in reducing motor vehicle theft and increasing vehicle recovery.

A final concern is that each vehicle transmitting this unique information would instantly provide the police and any other person having access to a system receiver, the whereabouts of the vehicle and its owner or operator. Transmitting this type of information may constitute an unwarranted invasion of personal privacy to the persons who would be identified (5 U.S.C. 552(b)6)).

This completes the agency's technical review, and, on the basis of the foregoing, the agency has decided to deny Mr. Bromer's petition.

Authority: 49 U.S.C. 33102-33104 and 33106; delegation of authority at 49 CFR 1.50.

Issued on: August 1, 2002.

Stephen R. Kratzke,

Associate Administrator for Safety Performance Standards.