[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Rules and Regulations]
[Pages 15621-15624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7078]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 2010-0043]
RIN 2127-AK38


Federal Motor Vehicle Safety Standards; Theft Protection and 
Rollaway Prevention

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: Pursuant to a statutory mandate in the Cameron Gulbransen Kids 
Transportation Safety Act of 2007, NHTSA is placing a requirement in 
Federal Motor Vehicle Safety Standard No. 114 that certain motor 
vehicles with an automatic transmission that includes a ``park'' 
position manufactured for sale on or after September 1, 2010 be 
equipped with a brake transmission shift interlock (BTSI). This 
interlock must necessitate that the service brake pedal be depressed 
before the transmission can be shifted out of ``park,'' and must 
function in any starting system key position. The BTSI requirement 
adopted by this final rule is identical in substance to the 
Congressional requirement.

DATES: This final rule is effective April 29, 2010. Petitions for 
reconsideration: If you wish to petition for reconsideration of this 
rule, your petition must be received by May 14, 2010.

ADDRESSES: If you submit a petition for reconsideration of this rule, 
you should refer in your petition to the docket number of this document 
and submit your petition to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., West Building, 
Washington, DC 20590.
    The petition will be placed in the public docket. Anyone is able to 
search the electronic form of all documents received into any of our 
dockets by the name of the individual submitting the document (or 
signing the document, 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).

FOR FURTHER INFORMATION CONTACT: For technical issues, you may contact 
Gayle Dalrymple, NVS-123, Office of Rulemaking, by telephone at (202) 
366-0098, by fax at (202) 366-7002, or by email to 
[email protected]. For legal issues, you may contact David 
Jasinski, Office of the Chief Counsel, NCC-112, by telephone at (202) 
366-2992, by fax at (202) 366-3820, or by email to 
[email protected]. 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. Statutory Mandate and Background
II. Summary of the NPRM
III. Comments and Analysis
IV. Effective Date
V. Rulemaking Analysis and Notices

I. Statutory Mandate and Background

    On February 28, 2008, the ``Cameron Gulbransen Kids Transportation 
Safety Act of 2007'' (the K.T. Safety Act, or ``Act'') was signed into 
law.\1\ This Act relates to several aspects of motor vehicle safety 
involving incidents where a person, frequently a child, could be hurt 
in non-traffic situations. The K.T. Safety Act addresses safety 
concerns related to, among other matters, power windows, rearward 
visibility, and vehicles rolling away. The latter refers to incidents 
that typically involve an unattended child managing to shift the 
vehicle's transmission out of the ``park'' position when the child is 
left in a vehicle with the vehicle's key. With a BTSI system, the brake 
pedal must be depressed before the transmission can be shifted out of 
park. To reduce the occurrence of roll away incidents, the Act requires 
that each vehicle that is less than 10,000 pounds ``gross vehicular 
weight,'' excluding motorcycles and trailers, manufactured for sale 
after September 1, 2010, that includes an automatic transmission with a 
``park'' position, be equipped with a system that requires the service 
brake to be depressed before the transmission can be shifted out of 
``park'' (i.e., a BTSI system). The Act further requires the system to 
function in any

[[Page 15622]]

starting system key position in which the transmission can be shifted 
out of ``park.'' The Act also requires that a violation of this 
requirement be treated as a violation of a Federal motor vehicle safety 
standard.
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    \1\ Pub. L. 110-189, 112 Stat. 639 (Feb. 28, 2008).
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    In August 2006, prior to enactment of the K.T. Safety Act, the 
Alliance of Automobile Manufacturers and the Association of 
International Automobile Manufacturers (AIAM) developed a voluntary 
agreement requiring full implementation of a Brake Transmission Shift 
Interlock not later than September 1, 2010.\2\ This agreement, signed 
by many major automakers, also defined some of the key terms and 
required that automakers disclose the percentage of their current 
production vehicles equipped with BTSI systems, as well as when they 
reached full compliance. The language of that agreement was 
substantially the same as the BTSI requirement in the K.T. Safety Act.
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    \2\ The announcement and text of this agreement are available on 
the NHTSA website, http://www.nhtsa.dot.gov.
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II. Summary of the NPRM

    In a notice of proposed rulemaking (NPRM) published on August 25, 
2009,\3\ NHTSA proposed to incorporate the language of the K.T. Safety 
Act into the text of Federal Motor Vehicle Safety Standard (FMVSS) No. 
114, Theft protection and rollaway prevention. Because Congress 
mandated all vehicles be equipped with BTSI, no action was required by 
NHTSA for the requirement to take effect. However, we believed it would 
be helpful to manufacturers and other interested parties to group the 
BTSI requirement with other rollaway provisions of FMVSS No. 114. That 
is, the rollaway provisions of the FMVSSs would be easier to ascertain 
and understand if the provisions were codified together.
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    \3\ 74 FR 42837 (Docket No. NHTSA-2009-0049).
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    In the NPRM, we proposed locating the BTSI requirement in paragraph 
S5 of FMVSS No. 114. Additionally, we proposed a minor modification of 
paragraph S3 of the standard, Applicability, to account for the minor 
differences between the applicability of the BTSI requirement and the 
applicability of FMVSS No. 114 generally.
    In addition to inserting the statutory requirement into the 
standard, NHTSA offered for public comment four interpretations of the 
statutory language:
     The last sentence of section 2(d)(1) of the Act states: 
``This system shall function in any starting system key position in 
which the transmission can be shifted out of `park'.'' We stated that 
this sentence 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.
     We stated that the BTSI requirement applies to vehicles 
with all keys,  i.e., a physical device or an electronic code, such as 
those requiring the operator to enter a code or push a button to start 
the vehicle.
     We understood the term ``gross vehicular weight'' in 
section 2(e)(2) to mean ``gross vehicle weight rating (GVWR).''
     The phrase ``manufactured for sale after September 1, 
2010'' in section 2(d)(1) of the Act means ``manufactured on or after 
September 1, 2010.''

III. Comments and Analysis

    NHTSA received two comments in response to the NPRM. One comment, 
from the Alliance of Automobile Manufacturers, supported NHTSA's 
proposal to include the BTSI requirement in FMVSS No. 114. A second 
comment, from AIAM, also supported NHTSA's proposal, but requested that 
the agency include a gear selection control override option that would 
allow the vehicle to be shifted out of ``park'' without depressing the 
service brake under certain limited conditions. AIAM stated its belief 
that an override feature would not degrade safety, would promote 
flexibility, and prevent consumer backlash. AIAM stated its belief that 
Congress did not intend to require a rigid, inflexible interpretation 
of the law, while maintaining the safety purpose of the device.
    We are not adopting AIAM's suggested override feature in this final 
rule for the following reasons. First, it is not clear that an override 
is permissible within the language of the K.T. Safety Act. AIAM noted 
that the Act neither expressly prohibits nor requires an override 
system and argued that NHTSA could implement an override. However, we 
find no indication either in the text of the K.T. Safety Act or its 
associated legislative history that Congress envisioned any exception 
to the plain language of the Act. Furthermore, many Congressional 
actions, including other portions of the K.T. Safety Act, require NHTSA 
to undertake rulemaking in various areas of concern and permit a degree 
of agency discretion in their implementation. In the case of BTSI, 
Congress made this requirement self-effectuating and did not direct 
that rulemaking be done, indicating that the agency is afforded less 
leeway in the implementation of the requirement.
    Second, NHTSA is concerned that implementing an override would be 
outside the scope of this rulemaking action. The August 25, 2009 NPRM 
proposed only the incorporation of the statutory language into the 
standard for the convenience of manufacturers and other readers of the 
safety standards. The NPRM did not analyze or propose possible 
mechanisms to adjust the statutory requirement, such as permitting an 
override in a limited set of circumstances. Therefore, we believe it 
would be outside the scope of this rulemaking to include such a change 
to the BTSI requirement in this final rule.
    Third, while AIAM suggested that the lack of an override could 
create a consumer backlash, they provided no information why this would 
necessarily be so. In a supplement to its comments, AIAM stated that, 
in some vehicles, if the battery is dead or at a low state of charge, 
the shift selector control may not be moved from ``park'' even with the 
service brake pedal depressed. AIAM provided no data on the number of 
vehicles or model lines produced that operate this way, nor did AIAM 
explain why a decision was made to operate these vehicles in this 
fashion. In short, we are not convinced that an override feature is 
necessary. We note that no commenter addressed the four interpretations 
of the BTSI provision of the K.T. Safety Act. Accordingly, we adopt 
those interpretations without further discussion.
    For the reasons discussed above and in the NPRM, and having 
considered all of the comments received, NHTSA will adopt without 
change the amendments proposed in the NPRM.

IV. Effective Date

    Section 30111(d) of title 49, United States Code, provides that a 
Federal motor vehicle safety standard may not become effective before 
the 180th day after the standard is prescribed or later than one year 
after it is prescribed except when a different effective date is, for 
good cause shown, in the public interest. In this instance, the K.T. 
Safety Act prescribes the effective date of the BTSI requirement. The 
inclusion of this mandate in the FMVSSs was solely for the convenience 
of the reader. Therefore, good cause exists for this amendment to FMVSS 
No. 114 to become effective before the 180th day after the publication 
of this rule.

[[Page 15623]]

V. 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 inserts 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 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 final rule under the 
Regulatory Flexibility Act. I certify that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. This rule merely includes in the Federal motor vehicle safety 
standards a requirement passed by Congress in the K.T. Safety Act. No 
substantive changes to the Act are being made in this final rule. Small 
organizations and small government units would not be significantly 
affected since this action will 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. For any vehicle manufacturers that do not already install a BTSI 
system in their vehicles, NHTSA does not believe that installing such a 
system will result in a significant economic impact on those entities. 
This is because the addition of BTSI requires only a relatively simple 
mechanical and/or electrical modification.

Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule 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 rule does not have sufficient federalism implications to 
warrant either consultation with State and local officials or 
preparation of a federalism summary impact statement. The rule 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 the responsibilities among the various levels of 
government.''
    Further, no consultation is needed to discuss the issue of 
preemption in connection with today's final rule. The issue of 
preemption can arise in connection with NHTSA rules in 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 is 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 some of 
the NHTSA safety standards. 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).
    NHTSA has considered the nature (e.g., the language and structure 
of the regulatory text) and purpose of today's final rule and does not 
foresee any potential State requirements that might conflict with it. 
Without any conflict, there could not be any implied preemption of 
state law, including state tort law.

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,

[[Page 15624]]

and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the agency.
    Although this final rule 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 no 
information collection requirement associated with this final rule.

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, all manufacturers will be required by 
statute to include it in their vehicles by September 1, 2010. This 
final rule incorporates the statutory requirement into FMVSS No. 114 
and does not include any additional requirements for 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 final rule will not result in any expenditure by State, local, 
or tribal governments or the private sector. Thus, this final rule 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.

0
In consideration of the foregoing, NHTSA hereby amends 49 CFR part 571 
as follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of Title 49 continues to read as 
follows:

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


0
2. Section 571.114 is amended by revising paragraphs S3 and S5 and 
adding paragraph S5.3 to read as follows:


Sec.  571.114  Standard No. 114; Theft protection and rollaway 
prevention.

* * * * *
    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.
* * * * *
    S5 Requirements. Each vehicle subject to this standard must meet 
the requirements of S5.1, S5.2, and S5.3. Open-body type vehicles are 
not required to comply with S5.1.3.
* * * * *
    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.
* * * * *

    Issued on: March 25, 2010.
David L. Strickland,
Administrator.
[FR Doc. 2010-7078 Filed 3-29-10; 8:45 am]
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