E9-20384. Federal Motor Vehicle Safety Standard No. 114, Theft Protection and Rollaway Prevention

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Notice of Proposed Rulemaking (NPRM).

SUMMARY:

NHTSA is proposing to place a requirement in the Federal motor vehicle safety standards that certain motor vehicles with an automatic transmission that includes a “park” position manufactured for sale after September 1, 2010 be equipped with a brake transmission shift interlock. This interlock will require that the service brake pedal be depressed before the transmission can be shifted out of “park,” and will function in any starting system key position.

NHTSA is issuing this document in response to a statutory mandate in the Cameron Gulbransen Kids Transportation Safety Act of 2007. The proposed rule would not differ from the Congressional requirement. This rule inserts the mandated requirement into the text of Federal Motor Vehicle Safety Standard No. 114.

DATES:

You should submit your comments early enough to ensure that the Docket receives them not later than September 24, 2009.

ADDRESSES:

You may submit comments to the docket number identified in the heading of this document by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
• Hand Delivery or Courier: 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.

Fax: [phone].

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://www.regulations.gov,, including any personal information provided. Please see the Privacy Act heading below.

Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://DocketInfo.dot.gov.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. or the street address listed above. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT:

For technical questions you may contact Gayle Dalrymple, NVS-123, Office of Rulemaking, [phone], or [e-mail]. For legal issues you may contact Ari Scott, NCC-112, Office of the Chief Counsel, [phone], or [e-mail]. You may send mail to both of these officials at National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. The Legislative Mandate and Changes to FMVSS No. 114

III. Public Participation

IV. Rulemaking Analyses and Notices

I. Background

On February 28, 2008, President G.W. Bush signed into law the “Cameron Gulbransen Kids Transportation Safety Act of 2007” (the K.T. Safety Act of 2007). Public Law 110-189, February 28, 2008, 122 Stat 639. This Act related to several aspects of motor vehicle safety involving incidents where a person, frequently a child, could be hurt in non-traffic situations. Specifically, the K.T. Safety Act of 2007 addressed safety concerns relating to power windows, rearward visibility, and vehicles rolling away. With regard to vehicles rolling away, the specific language of the Act included:

(d) Preventing Motor Vehicles From Rolling Away.—

(1) Requirement.—Each motor vehicle with an automatic transmission that includes a “park” position manufactured for sale after September 1, 2010, shall be equipped with a system that requires the service brake to be depressed before the transmission can be shifted out of “park”. This system shall function in any starting system key position in which the transmission can be shifted out of “park”.

(2) Treatment As Motor Vehicle Safety Standard—A violation of paragraph (1) shall be treated as a violation of a motor vehicle safety standard prescribed under section 30111 of title 49, United States Code, and shall be subject to enforcement by the Secretary under chapter 301 of such title.

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(e) Definition of Motor Vehicle—As used in this Act and for purposes of the motor vehicle safety standards described in subsections (a) and (b), the term `motor vehicle' has the meaning given such term in section 30102(a)(6) of title 49, United States Code, except that such term shall not include—

(1) a motorcycle or trailer (as such terms are defined in section 571.3 of title 49, Code of Federal Regulations); or

(2) any motor vehicle that is rated at more than 10,000 pounds gross vehicular weight.

NHTSA is proposing this rule in response to section (d) of the K.T. Safety Act of 2007's mandate to require a brake shift transmission interlock on light vehicles. We further note that the term “motor vehicle” is defined differently in the K.T. Safety Act of 2007 than in 49 U.S.C. 30102. As defined in part (e) of the Act, the term “motor vehicle” means a motor vehicle equal or less than 10,000 pounds “gross vehicular weight” that is not a motorcycle or a trailer. As to how this definition of motor vehicle as stated by the K.T. Safety Act would relate to “motor vehicles” under 49 U.S.C. 30102, the K.T. Safety Act definition is limited to passenger cars, multipurpose passenger vehicles, light trucks, and low-speed vehicles.

According to the legislative history of the K.T. Safety Act of 2007 (S. Rep. 110-275, March 13, 2008)) when a vehicle is inadvertently put into gear or neutral, it may roll away causing harm to bystanders or individuals in the vehicle. As stated in the Congressional record (Sen. Rep. 110-275), Congress believes that children are especially at risk because, should they move a transmission out of the park position, they may not know what they did or how to stop the vehicle once they realize what is happening, and a Brake Transmission Shift Interlock (BTSI) could help prevent these incidents. BTSI, as mandated by Congress, requires depression of the brake pedal to move the gear shift out of the “park” position. Since small children typically cannot reach the brake pedal, if a BTSI is in place, Congress decided there is little chance small children can shift the vehicle into gear by themselves.^[1] We note that, in general, key removal by the operator is still the most effective way to prevent children from shifting the vehicle's transmission out of the “park” position. The K.T. Safety Act mandates that a BTSI should function in any starting key position.

Prior to the passage of the K.T. Safety Act of 2007, in August of 2006, the Alliance of Automobile Manufacturers and the Association of International Automobile Manufacturers developed a voluntary agreement which requires full implementation of BTSI not later than September 1, 2010.^[2] The agreement states that “any vehicle under 10,000 pounds produced for the U.S. market, with an automatic transmission that includes a ‘park' position shall have a system that requires that the service brake be depressed before the transmission can be shifted out of “park.” Additionally, the agreement required that manufacturers provide NHTSA with information about which vehicles were equipped with BTSI systems, which will be placed in the docket. Automakers participating in the voluntary agreement include: Aston Martin, BMW Group, Ford Motor Company, Hyundai Motor, Maserati, Nissan, Suzuki, DaimlerChrysler Corporation, General Motors, Isuzu Motors, Mazda, Porsche, Toyota, Ferrari, Honda, Kia Motors, Mitsubishi Motors, Subaru, and Volkswagen Group.

For its part, since model year (MY) 2007, the agency has made available to the public on http://www.safercar.gov the list of vehicles equipped and not equipped with BTSI. Approximately 98 percent of MY 2008 motor vehicles are forecasted to be equipped with a BTSI system designed in accordance with the agreement. One of the functions of the K.T. Safety Act of 2007 is that it codifies and makes mandatory the terms of the agreement for all manufacturers and vehicles as described above.

II. The Legislative Mandate and Changes to FMVSS No. 114

Because Congress mandated all vehicles be equipped with BTSI, no action is required by NHTSA for this portion of the legislation to become effective. However, there are several reasons why we are proposing to integrate this requirement into Federal Motor Vehicle Safety Standard (FMVSS) No. 114, Theft protection and rollaway prevention. So that manufacturers and others may conveniently find all requirements for rollaway prevention systems in the FMVSSs, we are proposing to locate the requirement for the BTSI together with requirements for other rollaway systems (in paragraph S5 of FMVSS No. 114). We also note that Congress mandated that a violation of the BTSI requirement shall be treated as a violation of a motor vehicle safety standard. To facilitate compliance with the safety requirement and make clear that NHTSA will enforce violations of the BTSI requirement by way of the recall and remedy provisions of the National Traffic and Motor Vehicle Safety Act (49 U.S.C. 30101 et seq.), we are proposing to integrate the BTSI requirement into FMVSS No. 114.

Comments are requested on our interpretation of various provisions of section 2(d) of the Act. The last sentence of section (d) states: “This system shall function in any starting system key position in which the transmission can be shifted out of `park'. This means that no matter the starting system position the key is in (e.g., “lock,” “accessory,” or “start”) the transmission must only shift out of “park” when the service brake is depressed. Further, while the second sentence of section (d)(1) refers to the term “key,” we believe that the BTSI requirement applies to vehicles that operate with all keys, i.e., a physical device or an electronic code, such as those requiring the operator to enter the code or push a button to start the vehicle. In all vehicles, the brake pedal must be depressed in order to shift the transmission out of the “park” position. Other findings we have made are that the reference to “gross vehicular weight” in section (e)(2) of the Act is referring to “gross vehicle weight rating (GVWR),” a vehicle metric commonly used in the FMVSSs in determining the applicability of the standards, and that the reference to “manufactured for sale after September 1, 2010” in section (d)(1) means “manufactured on or after September 1, 2010.” Finally, we have not included in FMVSS No. 114 any language relating to a test procedure. Given the relatively simple nature of the requirement, we do not believe a test procedure is needed in the regulatory text. However, in a compliance test, NHTSA will attempt to shift the transmission out of “park” without depressing the vehicle's service brake for each ignition position. If the transmission is able to be shifted out of park without the brake pedal depressed, an apparent noncompliance will be deemed to have been found.

We note that because of the difference in the applicability of the BTSI requirement and the general applicability requirements of FMVSS No. 114, we will need to modify paragraph S3, Application, to insert the BTSI requirement as it was mandated by Congress. According to section (e) the K.T. Safety Act of 2007:

The term `motor vehicle' has the meaning given such term in section 30102(a)(6) of title 49, United States Code, except that such term shall not include—

(1) a motorcycle or trailer (as such terms are defined in section 571.3 of title 49, Code of Federal Regulations); or

(2) any motor vehicle that is rated at more than 10,000 pounds gross vehicular weight.

The vehicles subject to the K.T. Safety Act of 2007 largely overlap with the vehicles currently subject to FMVSS No. 114, but there are some differences. Using the term “motor vehicle” as described in 49 U.S.C. 30102, the Congressional definition would apply to passenger cars, trucks, buses, multipurpose passenger vehicles, and low-speed vehicles with a GVWR of 10,000 pounds or less. This contrasts with the vehicle types listed in paragraph S3 of FMVSS No. 114, which includes “all passenger cars, and to trucks and multipurpose vehicles with a GVWR of 4,536 kilograms (10,000 pounds) or less. However, it does not apply to walk-in van-type vehicles.” Thus, as a result of the Congressional definition, in addition to all of the vehicles currently subject to FMVSS No. 114, the BTSI requirement would apply to buses (under 10,000 pounds), walk-in van-type vehicles, and low-speed vehicles. We are proposing to add language to paragraph S3 of the standard, to make it clear that the BTSI requirement applies to this somewhat larger class of vehicles, while not changing the applicability of current FMVSS No. 114 requirements.

III. Public Participation

How do I prepare and submit comments?

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES.

Comments may also be submitted to the docket electronically by logging onto the Docket Management System Web site at http://www.regulations.gov. Follow the online instructions for submitting comments.

Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/​omb/​fedreg/​reproducible.html. DOT's guidelines may be accessed at http://dms.dot.gov.

How can I be sure that my comments were received?

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

How do I submit confidential business information?

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

Will the agency consider late comments?

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

How can I read the comments submitted by other people?

You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

IV. Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

NHTSA has considered the impacts of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This action was not reviewed by the Office of Management and Budget under E.O. 12866. The agency has considered the impact of this action under the Department of Transportation's regulatory policies and procedures (44 FR 11034; February 26, 1979), and has determined that it is not “significant” under them. This rulemaking document was not reviewed under E.O. 12866.

Today's notice proposes to insert the Congressional mandate into the Federal motor vehicle safety standards for the convenience of users. It does not impose any additional regulatory requirements. We also note that most vehicles are already equipped with a BTSI system. The agency concludes that the impacts of the proposed changes are so minimal that preparation of a full regulatory evaluation is not required.

Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this NPRM under the Regulatory Flexibility Act. I certify that this NPRM will not have a significant economic impact on a substantial number of small entities. This proposal merely includes in the Federal motor vehicle safety standards a requirement passed by Congress in the K.T. Safety Act of 2007. No substantive changes to the Act are being proposed in this notice. Small organizations and small government units would not be significantly affected since this proposed action would not affect the price of new motor vehicles. For the vast majority of motor vehicle manufacturers, the BTSI requirement merely codifies a voluntary pledge made by manufacturers to install BTSI systems on all vehicles by September 1, 2010.

Executive Order 13132 (Federalism)

NHTSA has examined today's proposal pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the proposal does not have federalism implications because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Further, no consultation is needed to discuss the issue of preemption in connection with today's proposed rule. The issue of preemption can arise in connection with NHTSA rules in at least two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: “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.” 49 U.S.C. 30103(b)(1). It is this statutory command that unavoidably preempts State legislative and administrative law, not today's rulemaking, so consultation would be unnecessary.

Second, the Supreme Court has recognized the possibility of implied preemption: in some instances, State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes the State requirements unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000). However, NHTSA has considered the nature and purpose of today's proposal and does not currently foresee any potential State requirements that might conflict with it. Without any conflict, there could not be any implied preemption.

Executive Order 12988 (Civil Justice Reform)

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

Protection of Children From Environmental Health and Safety Risks

Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.

Although this notice is part of a rulemaking expected to have a positive safety impact on children, it is not an economically significant regulatory action under Executive Order 12866. Consequently, no further analysis is required under Executive Order 13045.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There is not any information collection requirement associated with this NPRM.

National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers. The NTTAA directs us to provide Congress (through OMB) with explanations when we decide not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to the BTSI requirement. However, we note that currently, most automobile manufacturers incorporate a brake shift transmission interlock in their vehicles. In 2006, most large vehicle manufacturers agreed to a voluntary commitment to include a BTSI system in their vehicles by September 1, 2010. Finally, due to the BTSI provision in the K.T. Safety Act of 2007, all manufacturers will be required by statute to include it in their vehicles by September 1, 2010. This NPRM proposes to incorporate the already-existing requirement into FMVSS No. 114 and does not include any additional requirements on manufacturers.

Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of why that alternative was not adopted.

This NPRM will not result in any expenditure by State, local, or tribal governments or the private sector. Thus, this NPRM is not subject to the requirements of sections 202 and 205 of the UMRA.

National Environmental Policy Act

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.

Regulatory Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Privacy Act

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.regulations.gov.

List of Subjects in 49 CFR Part 571

• Motor vehicle safety
• Reporting and recordkeeping requirements
• Tires

In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:

PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

1. The authority citation for part 571 of Title 49 would continue to read as follows:

Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.

2. Section 571.114 would be amended by revising paragraphs S3 and S5 and adding paragraph S5.3 to read as follows:

§ 571.114

Standard No. 114; Theft protection and rollaway prevention.

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S3 Application. This standard applies to all passenger cars, and to trucks and multipurpose passenger vehicles with a GVWR of 4,536 kilograms (10,000 pounds) or less. However, it does not apply to walk-in van-type vehicles. Additionally, paragraph S5.3 of this standard applies to all motor vehicles, except trailers and motorcycles, with a GVWR of 4,536 kilograms (10,000 pounds) or less.

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S5 Requirements. Each vehicle subject to this standard must meet the requirements of S5.1, 5.2, and 5.3. Open-body type vehicles are not required to comply with S5.1.3.

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S5.3 Brake Transmission Shift Interlock. Each motor vehicle manufactured on or after September 1, 2010 with a GVWR of 4,536 kilograms (10,000 pounds) or less with an automatic transmission that includes a “park” position shall be equipped with a system that requires the service brake to be depressed before the transmission can be shifted out of “park.” This system shall function in any starting system key position in which the transmission can be shifted out of “park.” This section does not apply to trailers or motorcycles.

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Issued on August 19, 2009.

Julie Abraham,

Director, Office of International Policy, Fuel Economy and Consumer Programs.

Footnotes

1.  While this was the rationale provided by Congress, we note that NHTSA has no data on actions and behavior of unattended children in vehicles, although we agree that it is likely accurate.

2.  The announcement and text of this agreement are available on the NHTSA Web site, http://www.nhtsa.dot.gov.